Helen Watson White
To Be Fair: Confessions of a District Court Judge by Rosemary Riddell (Upstart Press, 2021), 229pp, $39.99
‘What if we could be honest about our pain?’ asks film/theatre director and lawyer Rosemary Riddell in her memoir To Be Fair: Confessions of a District Court Judge. Not perhaps the question you’d expect from a judge, considering the usual preconceptions of the role.
From the first chapter, ‘Mental Health’, Riddell makes clear that her ‘confessions’ go beyond the details of hearings she attended in 14 years of sitting on the bench. Her observations, personal, practical or philosophical, reflect the diversity of the life she has lived. A book written initially for her own reasons—to ‘let go’ the experience of a ‘demanding and difficult job’—has broadened to include a critique of society, canvassing the ‘thorny issues of poverty, family violence and racism’ that underly many of the cases she has heard. She does not, however, distance herself from that society and its underbelly; any problems discussed are collectively owned—they are not the individual’s but ‘ours’.
Many of the book’s stories are presented with a sense of ‘the unexpected’ (another chapter title), which is inherently theatrical, bringing the events to life. Half a page into the mental health chapter, for instance, we find ourselves in comic territory. As we were warned in the preface, ‘Sometimes … I have wanted to stuff my gown in my mouth to stop from laughing helplessly at what goes on.’ Equally, when there is grief, doubt, regret or the shock of a family tragedy, this judge is not slow to respond. She quotes the late Justice Fogarty as saying the human quality he most admired was humour (‘it binds us together’); yet because of the particulars of one case relating closely to his own background, Fogarty was ‘known to choke up while sentencing a man on fraud charges’. Riddell herself describes, on several occasions, driving home from work, ‘barely able to see the road in front of me for the flood of tears.’
To expose such responses is a brave thing for any author to do, but Riddell provides balance, a skill learned from judging, which involves ‘an ability to think logically and dispassionately … taking all the facts and law into account.’ That balance and thoroughness means that her 33 chapters cover a wide range of subjects, from ‘The custody tussle’ to ‘Witness reliability’, from revenge to whakama [shame] and restorative justice, from stress and how to manage it, to that thorniest of questions, ‘Is it hard to decide?’ While it is clear that the impartial judge must present a passionless mask in the theatre of court, she can analyse and agonise all she likes in private—and she has to, because every decision is hard, ‘at times immeasurably so’.
Have I ever got it wrong? Yes.
Have I ever regretted a decision? Yes.
Have I ever got it absolutely right? Yes.
Without hindsight or foresight, she writes, ‘You do the best you can …’
When you hear of the complexity of most cases involving children, the effects of punitive legislation like the Three Strikes Law, or the cumulative effect of making several major written judgements in succession, you understand the full force of Riddell’s last-page statement: ‘Judges are only human.’ You also understand why she has included quite a few bad jokes to leaven the earnestness. On the sober side, her willingness to enter into people’s lived experience furthers an (unstated) aim of social cohesion. Humour, she seems to suggest, frees us from a sort of communal dread; and pain honestly expressed becomes shared pain.
The author—as she must—approaches every situation even-handedly, with compassion and a natural humility. In describing one psychiatric patient, declined discharge from hospital by her decision and leaving the court without protest, she remarks: ‘Every time they go, every time I think it could be me. The circuitry in the brain gone awry, a head injury or a cataclysmic life event from which there’s no coming back.’ She presents herself as being on a level playing field with defendants as well as with fellow lawyers and judges, demonstrating a persistent belief in equality, despite the hierarchical system she has inherited.
In her chapter about lawyers, Riddell describes what seems an ingrown institution, with quaint customs like barristers wearing wig and gown and addressing each other as ‘my learned friend’. It occurred to this reader that the reason they use a set phrase might be to maintain equality along with courtesy, since Riddell points out it can be used ‘even when things are decidedly frosty between them’. Another might conclude it is, rather, an appeal to membership of an exclusive club to which others in the courtroom could never belong.
Always looking for the positive, Riddell does reveal a form of equality seen in New Zealand’s system of appointing judges. Although any lawyer may apply to become a Queen’s [now King’s] Counsel, it is usual for judges in the UK to come mainly from the class of barristers, considered superior to lawyers who practise as solicitors only. In this country, she informs us, solicitors as well as barristers may be appointed to the judiciary. She also notes that wig and gown are not worn in mental health hearings.
Riddell has received both sympathetic and antipathetic treatment from colleagues. The best stories, of course, are from the second variety, from the ‘cut and thrust of the Auckland law scene’, where she encountered a ‘brutal, even feral attitude between lawyers’. Her theatrical experience shows in a piercing shot at legalese: ‘when lawyers preface their submissions with increasingly fawning “with great respect” or “with the greatest respect” and that beauty, “with the greatest possible respect”, you know these are all tantamount to “I don’t exactly hate you, but if you were on fire and I had water, I’d drink it”.’
Precisely because she has been part of it, Riddell is ready to criticise the institution of law when it does not meet her own high standards of fairness. She describes how people engage a lawyer simply ‘because something has gone wrong and they want the lawyer to fix it and fast’. But, she points out, ‘the courts are part of the Ministry of Justice, a cumbersome monolith which moves at a glacial pace and may seem, to the uninitiated, designed to impede the flow of justice rather than facilitate it.’ The practice of law is not all simply ‘standing up for the little guy’, as it appears to the hopeful among us. In this, as in many things, Riddell is a realist, having abandoned her youthful rose-tinted spectacles.
Throughout, along with clear-sightedness, there is a sharp focus on being fair as the core business of the legal profession: ‘To be fair is not an aspirational quality for a judge. It is called for every single day. From the well-dressed and well-behaved to the snivelling, carping, rude individuals who grace the court, all deserve the best the judge has to offer, even the vexatious litigants.’ The patience and forbearance learnt from child-rearing may have helped this mature student, who started practising law at age forty; it is clear she had also developed by then a steely resolve and the intellectual stamina to see a process through. The Family Court, in particular, surely benefitted from her experience as parent and co-parent: that unique qualification with a skill set that is hard to quantify.
Cases heard in the Family Court and criminal court, Riddell argues, are not as different as they seem because complainants and defendants were brought up in the same society, many of the latter suffering from harmful influences on their growth and development that the former were lucky to escape. Lamenting the lack of diversity among judges—as among lawyers in general—Riddell talks of the many ways (anti-racism seminars, marae visits) in which they can broaden their knowledge of how other people live. And she repeats that judges—including herself—are, after all, grounded in a common humanity, with the same ‘struggles and triumphs’ as everyone else.
The most extraordinary illustration of this is the poignant story of the Riddells’ daughter Polly, who, after surviving serious sexual assaults and drug addiction, died in 2018 aged forty. After the book was completed, it was revealed that her death involved another person, who was in November 2021 charged with manslaughter. Within the compass of the book, the Riddells had earlier had to face Mike’s ‘aggressive’ prostate cancer, which came ‘completely out of the blue’ eighteen months before Polly died.
It is against this background of shocking and unexpected happenings in her own life that the author writes: ‘My unending fascination with the law is the parade of humanity, people’s stories, the way a single event can irretrievably change a life’—or lives.
HELEN WATSON WHITE is a Dunedin writer with a background in university teaching, library work and editing. She has published a long list of reviews of theatre, books, music, art and opera, along with articles, short stories, poems and photographs.