Judge's PhD in law rare achievement

Dunedin District Court Judge Stephen O'Driscoll reflects on his PhD research. Photo by Peter...
Dunedin District Court Judge Stephen O'Driscoll reflects on his PhD research. Photo by Peter McIntosh.
After seven years' hard labour, Dunedin District Court Judge Stephen O'Driscoll will gain a rare PhD in law from the University of Otago today.

He will be one of about 480 graduands in commerce, tourism and law to graduate in person at a 3pm ceremony at the Dunedin Town Hall.

"There's a tremendous sense of satisfaction, having completed it."

He will become the first sitting district court judge in the South Island, and only the second in the country, to gain a PhD in law.

Judge John Cadenhead, of Auckland, had earlier gained an Auckland University doctorate.

"It was difficult, because I had to fit it around my work as a district court judge and also my home and family and other commitments," Judge O'Driscoll said.

"So there was a lot of time . . . before I started working, coming to work early, working late at night, working on weekends and working on holidays."

Having a doctorate would not alter his approach to the law or judging.

"I've always been very conscious of my function to try to be fair to everybody and apply the law and be just to the parties."

His research focused on the conduct of defence lawyers where this had caused or contributed to a miscarriage of justice, and he had identified problem areas which gave rise to successful appeals.

"I wanted the research to be first and foremost practical, so that it was something that I could offer the legal community."

There was an increasing trend to use "conduct of counsel" as grounds for appeal over jury trial verdicts.

Four such appeals were made in 1996, 43 in 2006 and 29 in 2007.

His 544-page thesis examined 239 Court of Appeal decisions made between 1996 and 2007.

The court had allowed that appeal in 41 cases, finding that counsel's conduct had caused or contributed to a miscarriage of justice.

"It's ironic that the client wants the lawyer to prevent a miscarriage of justice and then it's the lawyer that causes it," he said.

In some cases, defence lawyers had failed to follow their clients' instructions, including not calling witnesses, were unfamiliar with the laws of evidence, had failed to investigate matters or had not adopted correct court tactics.

"The thesis is not a criticism of lawyers . . . there are thousands of trials which are conducted each year and it's only a small proportion of those that end up at the Court of Appeal," he emphasised.

The research arose from issues he had been considering as chairman of the former New Zealand Legal Services Board (1998-2001), which administered the publicly-funded legal aid scheme, and as chairman of the New Zealand Legal Services Agency (2001-2003), when he was responsible for $100 million in legal aid.

"I was always concerned that the lawyers who got the legal aid funds did a proper job for their clients . . . that [the clients] got the proper advocacy and representation."

His wife Linley had provided crucial support during his research and his supervisor, Prof Geoffrey Hall, had helped "immensely".


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