Kayo Matsuzawa’s Unsolved Murder

Kayo Matsuzawa
Kayo Matsuzawa (The Inv}estigator)

29-year-old Japanese tourist Kayo Matsuzawa was a daughter, younger sister, flatmate, friend, and if she were alive today, would have been an aunt. She went missing from Auckland, New Zealand 20 years ago today, around 11 September 1998. Her body was found in a utility cupboard in a stairwell 11 days later on 22 September.

TVNZ Cold Case‘s recent documentary is the second documentary that has been made about Kayo’s unsolved murder. Bryan Bruce’s The Investigator documentary is available on YouTube in three parts (one, two, three).

Timeline and map

  • Friday 11 September 1998
    • Approximately midday: Kayo arrived in Auckland on flight AN626 (a title card in Bryan Bruce’s documentary incorrectly says this was 1999).
    • 2:14 pm: Security camera footage shows Kayo getting off an airport bus on Queen Street, checks into Queen Street Backpackers.
    • 3:32 pm: BNZ CCTV shows Kayo walking past the Countrywide building on Queen Street.
    • Access card records missing (implied in The Investigator).
  • Monday 14 September 1998
    • Kayo due to check out of hostel.
    • Access card records missing (implied in The Investigator).
  • Wednesday 16 September 1998 (reported as five days after Kayo went missing)
    • Kayo’s day bag, passport, and insurance papers found in rubbish bin.
  • Tuesday 22 September 1998
    • Kayo’s body found.
    • One person of interest leaves the country.
Key central Auckland locations relating to Kayo Matsuzawa's murder
Key central Auckland locations relating to Kayo Matsuzawa’s murder (NZ Police)

Kayo

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Kayo’s family were worried about her going to New Zealand. Her plan was to learn English here for a year, and she left Yamagata, Japan for New Zealand in November 1997. In Christchurch she enrolled at the Dominion English School. She also worked in a restaurant.

At the school she met her friend Naomi Saishu who she flatted and travelled New Zealand with, including visiting Queenstown. “She was such a happy cheerful person; never said a bad word about anyone.“ “We’d go shopping together and to any events that were on in Christchurch. We went to the Santa parade and got so sunburnt a friend said she had never seen such dark Japanese people before.”

A postcard from Kayo Matsuzawa
A postcard from Kayo Matsuzawa (Cold Case)

Kayo sent postcards back home regularly. Around August she sent her mother a postcard: “Dear mum. Happy birthday! I’ve decided to come home to Japan on November 4, so another three months to go … Take care. Love, Kayo.“

Kayo’s mother said that: “she had a lot of friends and she’d make anyone around her happy. I can’t describe how kind and nice she was” “she was very friendly and she talked to most people, she wasn’t shy about meeting new people.”

Kayo told Naomi about her plans to travel the North Island. She wanted to visit the Bay of Islands for five days, and visit Auckland. Naomi couldn’t afford to go with her. Kayo promised to send her a postcard.

In The Investigator documentary, Bryan Bruce says that “Kayo didn’t like travelling on her own” and a Police officer described her as a “young, wary … tourist”.

But Kayo’s mother, Humiko Matsuzawa, said the following to Bryan Bruce after being asked about naïvety:

Bryan: “In English we have a word: ‘naïve’, it means to be so innocent that you do not appreciate that people could be actually meaning you harm; that she would take people as we say, on face value, she would tend to trust people.”

Humiko (through a translator): “Mmm that’s right, she would never mistrust a person.”

Naomi said: “she was the kind of person who would make friends with anyone. It wouldn’t be an issue for her to make friends at the backpackers and go out with people she just met. I think that this could be the reason this happened.” “After 10 days, no postcard came, so I did start to wonder. The police showed up at my work and drove me to the station, that’s where they told me, but I already knew by then, it must be Kayo.”

Other friends described her as kind, said she could speak English very well, and reported that she didn’t take drugs.

One postcard she sent from New Zealand to her brother, Junichi Matsuzawa, read: “Thank you so much for your support when I left. It’s much colder here than expected. But it’s such a beautiful place. Everyone here is so kind, I will probably not get killed. I’d better get going now. Please don’t do too much overtime at work, and take good care of yourself”.

Queen Street backpackers

Kayo arrived in Auckland city by bus at around 2:14pm.

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Kayo paid for and checked into a single room on the second floor of Queen Street Backpackers (4 Fort Street) for three nights on 11 September. She spoke to staff and set up her room in a neat, orderly fashion. Then she left her room for what was likely the last time.

At the time, there was a travel centre across the road.

She was last photographed on CCTV at 3:32pm walking past the Countrywide building on Queen Street.

The 11 September was a Friday afternoon, and soon people would be on Queen Street making their way home, or having drinks after work.

The fire alarm tester

Dennis Groves was a fire alarm compliance tester, who on 22 September had just finished servicing the system at the Auckland City Library, then went to the Centrecourt building’s utility room where the fire panel was.

He discovered Kayo’s body.

He told Cold Case “the first smell that I was aware of was the smell of ammonia, then it became a real vile smell”. At first he thought Kayo’s naked body was a mannequin. He went down the stairs to Queen Street and used his phone to call the police. He said “I had a darn good look at the body because I thought I might be called as a witness later on”.

The buildings

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The Centrecourt building in Central Auckland at 131 Queen Street is six storeys high. It shares a stairwell with the old BNZ building beside it.

From the backpackers, turning right then turning left onto Queen Street off of Fort Street brings you to the Centrecourt building after a two-minute walk.

The primary tenant in the Centrecourt building was KEY Education, an English language school with mainly Asian students, on the second floor. In The Investigator it’s described as a Japanese language school.

The shared stairwell is a confusing maze of stairs and doors. There was access to it from a car park, the Centrecourt food court, QF Tavern – a bar/pub, and presumably each floor in the Centrecourt and BNZ buildings.

The Centrecourt car park was accessible from a roller door entrance around the back of the building, on Mills Lane.

The Mills Lane/131 Queen Street carpark roller door, today
The Mills Lane/131 Queen Street car park roller door, today (Google Maps)

From the car park there are lifts that go up through the building and the stairwell. Down one flight of stairs is the corridor where the utility room is, and there’s another car park one level down. The door on the left of the utility room corridor is the fire exit stairwell for the BNZ building.

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From the BNZ stairwell down one floor is an exit to Queen Street. Bryan Bruce points out there is an alarm PIR beside this door, but it’s unclear if it was there in 1998 or at what times it was armed. Down one floor is a door to the BNZ food court. Up one floor is the BNZ car park and then other BNZ tower floors.

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The utility room

Kayo hadn’t been reported missing when her body was found. Kayo’s fingerprints were matched to fingerprints on her belongings left in her hostel room. Dental records from Japan and in person family identification were also used.

Kayo’s cause of death remains unknown because of the time that passed between her death and her body being found.

The room Kayo was found in has been described in various ways. An “alarm room”, probably because there was writing on the door that the “fire alarm panel” was in the room. It’s probably also accurately described as a “small utility room” (Cold Case), or a stairwell cupboard. It may have been a room that firefighters would need to access if they were called to the building.

Writing on the utility room door: "FIRE ALARM PANEL + BATTS in here!"
Writing on the utility room door: “FIRE ALARM PANEL + BATTS in here!” (TVNZ archive footage)

The room could be opened easily using a screwdriver, and that’s how Dennis gained access, as the building manager was difficult to find and keys were not given out readily. The door to the room was designated a smoke control door, and had an auto-closer on it. When Bryan Bruce was filming his documentary nine years later there was no way to hold the door open without using another item.

Utility room door handle
Utility room door handle (TVNZ archive footage)

The room was dark and the light switch was in an unusual location.

Bryan Bruce notes that the room was chosen by the murderer over potentially more discreet methods of hiding Kayo’s body, for example using a vehicle parked in the attached car park to transport the body to another location. He uses this to support his theory that the person did not have access to a vehicle. It’s possible that they did have access to a vehicle, but saw moving the body as a risk, either because they might have been seen in the car park, pulled over with the body in their vehicle, or left forensic evidence behind in their vehicle. They chose not to move the body even though it’s likely they returned to the room to clean up (building access records were missing for two periods of time, and some of Kayo’s belongings were disposed of days later).

There were probably rubbish bins in the building that they also chose not to use, a roof area, or even moving Kayo’s body from the building in a suitcase or other container. Kayo only weighed 50kg or 110 pounds.

Theory: building access

The original investigation appears to have focused on who had access to the buildings connected to the stairwell, and checking their alibis. This numbered in the hundreds of people who worked across the two buildings. As well as controlled access, including from the building car park, which was controlled by DKS (Data Key System) key access, the stairwell was accessible to the public via the Centrecourt food court/foodhall, and the QF Tavern – a bar/pub on the street.

“Centrecourt tenants reported that people often accessed the stairwell without a swipe card. Toilets and public areas were messy after the weekends, and the bar downstairs had a fire exit into the stairwell where patrons went to smoke. Police want to hear from anyone who was in the Centrecourt building over the time Kayo went missing and noticed anything unusual.” (Cold Case)

This was Bryan Bruce’s theory in his documentary, stating “the murderer must have had security access to the building“. The Mills Lane car park was described as “one of two ways you can get in[to the building]”. A DKS key was required to enter or exit using the car park roller door.

One part of the investigation that was not mentioned in the Cold Case documentary was the missing building access records.

Some of the doors to the Centrecourt and BNZ buildings were controlled by DKS and Cardax access control systems. Access control records for each system are stored in two separate physical locations across both buildings. Records for certain times on the weekend that Kayo was murdered are missing. One of the computers is hidden away in another utility cupboard in the Centrecourt building. The other Cardax system’s computer is in the BNZ Tower Management office. The Cardax system prints paper records that were also missing. The Investigator implies the dates that records are missing are Friday 11 September 1998 and Monday 14 September 1998.

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DNA

Police revealed on August 2018’s episode of Cold Case that using Y-STR DNA testing they had found male DNA under Kayo’s fingernails. Police would be able to compare it to a DNA sample taken from a male suspect.

People of interest

Fire alarm tester

Dennis, the fire alarm tester was initially a person of interest, but was ruled out by Police. His movements as part of his job were electronically monitored.

Language school associate

One person of interest was associated with the Centrecourt language school. The timings of their alibi didn’t check out, but the Police later concluded that this was due to an honest mistake.

British serial killer

Around 2000 it was reported that Alan Michael Grimson, who in 2001 was convicted of killing two young men in England, was based at the Devonport Naval Base fire school in Auckland, New Zealand as a trainer at the time of Kayo’s murder.

Graham Osborne, manager of the fire alarm maintenance company responsible for the Centrecourt building, Wormald, said he had met Grimson a few times at the fire school, but that there was no reason for Grimson to have known about the Centrecourt building.

Detective Senior Sergeant Kevin Baker observed that Grimson appeared to have targeted young men. Police suspect that Grimson trawled nightclubs for victims, and that there are more, unknown victims who may have been murdered on December 12 of various years.

Ukrainian backpacker resident

Another person of interest was a Ukrainian man who was a long-term resident at the Queen Street Backpackers. He was described as eccentric, paranoid, and with a mental health history.

He matched a description that a witness gave that they saw an older chap with a dishevelled look walking with an Asian female. The witness thought the Asian female could have been Kayo. This man left the country on the day Kayo’s body was found. He dealt in second-hand jewellery, and had pawned jewellery in Australia that matched the description of Kayo’s missing jewellery. Police say they tracked down the jewellery that he pawned and conclusively eliminated it as being Kayo’s jewellery.

Two years later he was found by French police squatting in an airport and triggered an INTERPOL alert. He was extradited back to NZ and an officer spent two days interviewing him. The officer explains why the man was ruled out: “my gut instinct is that it wasn’t him… a guy with a clear mental health history… was he the kind of person who would have been able to approach Kayo, strike up a conversation and entice her into the stairwell?”

Newest suspect

Around 2018 another district advised Auckland Police of a potential person of interest. The district is not necessarily in New Zealand. Police say that he “looks really good” as a suspect. Bank records show that this person used their EFTPOS or ATM card at the Queen Street’s BNZ building ATM on the same afternoon that Kayo arrived. From the emphasis placed on it in the Cold Case documentary, it’s likely this person’s previous offending has involved spiking the drinks of their victims.

Clothing and belongings

An actress wearing the clothing Kayo Matsuzawa is thought to have been wearing when she went missing
An actress wearing the clothing Kayo Matsuzawa is thought to have been wearing when she went missing (Cold Case)

Security camera footage shows that Kayo was wearing black bootleg pants, a black jacket, black shoes, and a backpack. Her clothing as well as her jewellery (small silver crescent-shaped earrings and a small delicate gold band ring with a single pink stone) has not been found.

Recreation of what Kayo Matsuzawa's missing ring looked like
Recreation of what Kayo Matsuzawa’s missing ring looked like (The Investigator)

Five days after Kayo went missing, which would have been around Wednesday 16 September 1998, some of Kayo’s possessions (including her day bag, passport, and insurance papers) were found in a public rubbish bin on the corner of Albert Street and Swanson Street by a rubbish collector. The bins in the central city are emptied two to three times a day.

Kayo Matsuzawa's passport
Kayo Matsuzawa’s passport (The Investigator)

In the Cold Case documentary the series of events were described as: the rubbish collector emptied the contents of the rubbish bin into a truck, property spilled out including Kayo’s purse and passport, the collector took the passport back to the office where it sat before reports of Kayo’s homicide hit the media. An office administrator contacted Police after media reported an unidentified body being found.

In Bryan Bruce’s documentary, The Investigator, the rubbish collector was described as finding Kayo’s passport and insurance-type papers, and taking them home, then Police were contacted after media reported an unidentified body was found.

No additional fingerprints were found on the passport.

As a result of this information, the Police spent approximately two weeks sifting through the rubbish at Greenmount Landfill, East Tamaki.

Police officers search Greenmount Landfill in East Tamaki for items belonging to Kayo Matsuzawa in 1998
Police officers search Greenmount Landfill in East Tamaki for items belonging to Kayo Matsuzawa in 1998 (NZ Herald)

Theory: drink spiking

The primary theory Police seem to be pursuing now is that Kayo’s drink was spiked.

In the Police’s opinion though, she wasn’t a drinker of alcoholic drinks. Her friend Naomi said “she could only drink a small amount, she couldn’t even finish a bottle of beer. It’s hard to imagine she’d be willing to drink unless someone forced her.” However, in Bryan Bruce’s documentary the following conversation occurred with Kayo’s friends:

“Voiceover: Did Kayo always stick to the rules? Did she take drugs for example? No, say her friends. But she did like to have a drink.
Friend: [Describing a photograph] We are sharing a liquor. And only a few glasses makes her drunken. And Kayo was so attractive cute lady so she was quite popular among men. And she can speak to everybody because her English capability is quite good. And in addition to it she was a good dancer.”

Taking into account both statements, a sound conclusion to draw would probably be that Kayo would have been unlikely to visit a bar, like the one attached to the Centrecourt building, unless she was with someone else.

Kayo had just arrived off a midday flight – it’s possible she went to the Centrecourt food court for a late lunch. The building was advertised as having a ‘international foodhall’ and an observation deck. It’s less likely, but still possible that her drink or food was spiked there.

A sign advertising the international foodhall outside the Centrecourt building
A sign advertising the international foodhall outside the Centrecourt building. A sign advertising the QF Tavern is in the bottom-left of the photograph. (TVNZ)

At some point Kayo ends up in the Centrecourt stairwell, probably sometime that evening. People would be less likely to be leaving work via the stairwell after 5:30pm or 6:00pm. But later into the night the stairwell turned into the place for patrons from QF Tavern to smoke.

Profile

The suspect has been described as:

  • having the confidence to go back to the scene,
  • being confident or comfortable enough to approach a tourist, possibly someone around Kayo’s age, someone she was comfortable enough to stay with for one or two hours, and someone who looked trustworthy (on the other hand, drink spiking may mean this isn’t as important),
  • forensically aware – there were no fingerprints on the belongings found in the rubbish bin, and apart from under Kayo’s fingernails, no DNA was found,
  • someone who has probably been involved in an act like this before,
  • being premeditated, and
  • having a sexual connotation behind their offending.

Can you help?

People, including tourists visiting Auckland, who were 20 in 1998 and might have been visiting the QF Tavern or otherwise been on Queen Street on or around 11 September 1998 would be around 40-years-old now.

Kayo’s murder is one of 65 cold case murders in New Zealand and was revisited by the documentary series Cold Case. Police would like to hear from anyone with information on 0800 COLD CASE (0800 2653 2273). You can also call the Auckland Police on +64 9 302 6400 from overseas, visit their website, or visit the Cold Case Facebook page.

The New Zealand Law Society and the Super-injunction

High Court of New Zealand Wellington court papers - Matt Taylor

The New Zealand Law Society has had a bad run lately. They claimed they were surprised that sexual harassment at scale was occurring in law firms and was underreported to them; they were unable to say what the public needs to hear – that the ‘Russell McVeagh lawyers’ are under investigation; and their National Standards Committee decided to expend time and resources investigating a family violence lawyer’s legitimate criticism of a judge.

Adding to that list, four months ago the Law Society obtained a “super-injunction”, a special type of gag order, against me. On Thursday that order was modified by the High Court, which means I can disclose its existence for the first time.

Injunctions and super-injunctions

An injunction is a court order. Usually they prohibit someone from doing something, like disclosing information. A super-injunction is an injunction about the injunction. In other words, a court order prohibiting disclosing that an injunction or the related court proceedings even exist. They’re rare. In the United Kingdom, the Guardian is aware of and able to report on only 40 cases. And they’re rarer here, in humble, less litigious Aotearoa New Zealand.

Super-injunctions challenge the principle of open justice; that cases should be determined in open, not secret courts, to prevent overreach of judicial power. Super-injunctions are uncommon, they are onerous, and they are costly to apply for and to defend against. The group of people who a respondent can safely discuss a super-injunction with is tiny: their lawyer.

Super-injunctions have been the subject of considerable controversy in the UK. Lord Neuberger’s committee published a 112 page report in 2011 that was highly critical of super and other similar injunctions. The most controversial super-injunctions usually involve a powerful person or organisation trying to suppress unfavourable but true information.

The Law Society’s super-injunction

The super-injunction was served on me on 5 April 2018, but had been granted several days earlier by Justice Churchman at the Wellington High Court, without notice and under urgency.

The injunction prohibited the publication or disclosure of information accidentally emailed to me by NZLS on 21 March. The contents of that email is still subject to suppression, except for the fact that it “attached a complaint made to the plaintiff [NZLS] by a legal practitioner about his own conduct; and such conduct was alleged to amount to sexual harassment or bullying”.

The super part of the injunction was that the fact that the High Court proceedings, New Zealand Law Society v Taylor, even existed could not be published, and that the Court file could not be searched. One effect of this has been that for several weeks NZLS has been able to avoid public scrutiny of their mistake of emailing confidential information to the wrong person.

The court was persuaded by the lukewarm argument that I have “a blog (in addition to being active on other social media such as Twitter)”, and because I had not replied to emails, a text message, and voicemail from the Law Society (I was seeking legal advice). In fact, the night before the injunction was granted I sent an email to NZLS’ barrister and a senior staff member. The injunction was stated to be interim, but the case had no next appearance timetabled, so it was effectively permanent.

Related posts:

How did the Law Society get here?

The Law Society is a surprising applicant for a super-injunction. Not a celebrity trying to cover up an affair or someone trying to neutralise a blackmail attempt, they are the regulatory body responsible for policing the conduct of New Zealand lawyers. The Law Society submits on legislation before Select Committees calling out overreach. They even have their own Rule Of Law Committee. And ironically, during the time the super-injunction was in force, in response to criticism of their Committee’s investigation of Catriona MacLennan, they publicly denied that they suppress free speech. But they, via a partner at top-tier law firm Meredith Connell, applied for a super-injunction. Their application was urgent without notice to any other party. That means I had no knowledge that the proceedings had been commenced against me, and no one provided the judge with arguments against the super-injunction being granted before the decision was made.

NZLS continued to escalate court proceedings while I was corresponding with their lawyers, filing a statement of claim in the proceedings in response to me declining an invitation to meet with the Law Society’s president. They did this even though I had told them I had no intention of publishing the information; had deleted the information; and had been extremely careful not to disclose identifying details, even to my own lawyers. By the time we settled proceedings they had involved a barrister, a partner, a solicitor, a Queen’s Counsel, and a junior barrister.

In contrast to not being prepared to pay the lawyers who volunteer on their “workplace culture” group, the NZLS has spent several thousand dollars on this case, including reimbursing my legal costs as part of our settlement.

Secrecy

Lawyers subject to sexual misconduct are afraid of speaking out, fearing their careers, more likely to leave a firm than be the “squeaky wheel”. Perhaps Human Resources find out about an “incident”, but they’re conflicted as their staff are employed by the partnership of which the harasser is commonly a member of. The wider partnership might find out too, but they’re conflicted as well if their business partner is the person at the centre of serious allegations, more content to accept assurances that “it won’t happen again”. Rarely, it seems, is that the case.

If a complaint makes it to the Law Society, although many lawyers seem intent on ignoring their compulsory reporting obligations under their rules, that is secret too. There is no visibility that complaints are even being made or investigated. There is no default opportunity for other victims to become aware of a complaint or investigation and indicate that a practitioner is a serial abuser. The Law Society appears to be fine with this secrecy, confident that it was Parliament’s intention. They don’t think anything substantive needs to change.

Even for a complaint that ends up being upheld, the only time proceedings are public by default is if the matter is so serious that it is referred to the Disciplinary Tribunal by a Standards Committee. If a Standards Committee finds unsatisfactory conduct they can order the publication of the practitioner’s name, but this is after the interests of wide group of people are considered, and publication is signed off by the NZLS board. The interests considered include those of: the complainant; clients of the practitioner; relatives of the practitioner; partners, employees and associates of the practitioner; and the practitioner.

By 30 June all lawyers in New Zealand intending to continue practising law needed to have renewed their practising certificate. It’s an annual task, and probably one most lawyers do on autopilot, declaring they are of good enough character to remain a lawyer.

Several lawyers who are facing credible allegations of sexual harassment still retain their practising certificates.

Will anything change in the legal profession? Sunlight is said to be the best of disinfectants, but at the moment it seems the Law Society is content with sexual misconduct reported to them staying behind closed doors.

Five Things Wrong With The Russell McVeagh Report and the Law Society Complaint Process

Wellington, New Zealand - Supreme Court building - inside the court room by Buffy May

This post refers to sexual harassment and bullying. Need help? In New Zealand, you can call Lifeline on 0800 543 354, Youthline on 0800 37 66 33 or find out about other crisis services here. Rape Prevention Education has a list of sexual assault support centers on their website. The Human Rights Commission provides confidential advice and support, and you can complain about sexual harassment to them.

Dame Margaret Bazley’s independent review of Russell McVeagh’s response to sexual misconduct allegations, embedded below, was published yesterday. It’s highly critical of Russell McVeagh’s culture and policies that led to sexual misconduct against employees and the poor handling of subsequent complaints.

Similar events that occurred at Russell McVeagh have also occurred at other New Zealand law firms without attracting media attention, and there are several recommendations in the Russell McVeagh report and aspects of the Law Society’s complaint processes that could be improved.

 

Other New Zealand law firms

The series of alleged events disclosed in the Russell McVeagh report are similar to those that have occurred in multiple law firms around New Zealand.

A senior lawyer, often a partner, sexually harasses a junior employee. Often the sexual harassment happens outside of the office, but in a work-related context at a bar, hotel, or staff member’s home. It’s unlikely sexual harassment is the only problematic conduct occurring at the firm, or that this is the first incident of sexual harassment the senior lawyer has been involved in.

At this stage, often prompt and effective action could be taken by the law firm to resolve the issue to the junior employee’s satisfaction, however it rarely occurs. Although the firm often has human resources staff, they are not equipped to deal with complaints of sexual harassment.

After some time, the offending lawyer, who is often respected in the profession, is quietly exited from the firm, often retaining their practising certificate and going on to practise as a barrister sole. A formal investigation is rarely conducted by the firm. In any case the firm is unlikely to have the resources, and it’s unlikely to be appropriate, for the firm to conduct the investigation itself. If a public statement is made by the firm it doesn’t mention that the lawyer exited “under a cloud”.

By this time the junior employee has often resigned from the firm. If they have taken action under employment law and signed a settlement agreement they are often bound by a confidentiality clause.

Related posts:

The report’s recommendations

Dame Margaret Bazley’s report is overall quite good, but the recommendations fall short in at least two areas.
  1. There is no recommendation regarding each member of the partnership’s ethical and legal obligation to report suspected misconduct to the Law Society. Even if the lawyer allegations have been made against leaves the firm, if a complaint or disclosure to the Law Society is not made there is no barrier to the lawyer obtaining another legal job without having to address their conduct.
  2. The report assumes that raising a family and having a career is an issue that is only relevant to, and that should be addressed by women.

Law Society’s processes

The report also illustrates shortcomings with the Law Society’s complaint processes, disclosing publicly for the first time that there are complaints before the Law Society in relation to the employment reference provided by Russell McVeagh, and Russell McVeagh lawyers’ failure to make a report to the Law Society.
It’s time for an independent review of the Law Society to address issues with the complaints process, for example:
  1. The Law Society doesn’t accept complaints about conduct without the complainant knowing the names of the practitioner allegations have been made against, even if the allegations themselves are public. Even though the complaint regulations state that the Law Society should provide reasonable assistance, the Law Society’s position is that this does not extend to a preliminary investigation to request information, for example the lawyer’s name, from the law firm involved.
  2. Complaints, when they are made, are shrouded by intense secrecy. Other potential complainants have no indication that a person’s conduct is being investigated, even though being part of a group of complainants may make them more comfortable to come forward. The Russell McVeagh report highlighted this when the group of summer clerks “told each other about their experiences with the same partner” and felt comfortable making a disclosure as a group.
  3. The Law Society has a conflict of interest in deciding whether to publish details about upheld complaints.

Image credit: Buffy May, Wellington Supreme Court building, CC BY-SA 2.0.

EQC settlement agreements suppress complaints and critical public comment

Christchurch earthquake shop window cracked by Matt Taylor
A Christchurch shop window. Matt Taylor

The Earthquake Commission is using contracts containing broad confidentiality clauses in an attempt to avoid future legal proceedings, complaints, and critical public comment from disgruntled homeowners, a document publicly available on the Arbitrators’ and Mediators’ Institute of New Zealand’s EQC Mediation Service website shows.

The pro forma agreement is used when disputes heard by the EQC Mediation Service are settled, however similar clauses are included in settlement agreements presented for claimants to sign when they are not represented by a lawyer and have not elected to mediate their dispute.

The clauses include an agreement that the claimant will not “commence any proceedings in New Zealand or elsewhere which in any way arise out of or relate to the Dispute, against EQC or any of its related persons, servants, employees or agents or against any other person”.

Claimants agree to “not make any complaint in relation to the Dispute to any professional, governmental or other body about the conduct of EQC or any of its related persons, servants, employees or agents or against any other person and to withdraw any complaint already made”.

EQC has been the subject of hundreds of complaints to the Office of the Ombudsman and the Privacy Commissioner. Experts EQC has engaged have also been the subject of complaints. Labour’s Minister Responsible for the Earthquake Commission, Megan Woods, has said she wants “a royal commission of inquiry into defective earthquake repairs”. Overseas royal commissions have had to address the issue of obtaining evidence which would otherwise be shielded by confidentiality agreements.

An additional clause prohibits claimants from making “any public comment critical of EQC or any of its related persons, servants, employees or agents or against any other person in respect of any matters which in any way arise out of or relate to the Dispute”. This clause would prevent disgruntled homeowners from talking about their experiences on TV, at a public meeting, or on Facebook.

“No further proceedings” clauses may be appropriate when parties have received legal advice, but clauses relating to complaints and public comment seem like bullying behaviour from a government agency trying to hide their mistakes.

The full document is embedded below.

Questions for the Law Society about sexual harassment in law firms

Wellington, New Zealand - Supreme Court building - inside the court room by Buffy May

This post refers to sexual harassment and bullying. Need help? In New Zealand, you can call Lifeline on 0800 543 354, Youthline on 0800 37 66 33 or find out about other crisis services here. Rape Prevention Education has a list of sexual assault support centers on their website. The Human Rights Commission provides confidential advice and support, and you can complain about sexual harassment to them.

It’s possible the last time the legal profession was under an intense spotlight was in the 1990s due to a string of fraud cases. The most memorable involved two partners of law firm Renshaw Edwards who were both, separately and unknown to each other, stealing money from the firm’s clients. The New Zealand Law Society had a fund to reimburse theft by lawyers but not on that scale. So the Law Society intervened and raised a levy from around 2,800 principals of law firms, mainly law firm partners, of $10,000 each. This contribution reflected and reminded senior lawyers of their obligation to conduct themselves with integrity, ensure their colleagues act with integrity, and to self-regulate. Recent stories of sexual misconduct at law firms gives the impression that those lessons, and integrity in general, have been left at the law firm door.

The lessons that need to be relearned now are similar, although obviously the impact on the people involved is wildly different between fraud and sexual misconduct. Graeme Hunt, in a book about fraud in New Zealand wrote that at first there was a lack of understanding about fraud, difficulty of obtaining sufficient evidence to lead to a conviction, and that “many companies were unwilling to do more than sack offending employees”. Hunt “argued that ‘sheltered’ professions (medicine and law in particular) are less likely to identify wrongdoing among their members than those professions that have to compete fiercely in the marketplace.” NBR’s Jock Anderson similarly identified the lack of fraud prosecutions before the 1970s as due to the “closed nature of the legal profession rather than the [good] behaviour of practitioners” saying matters “were kept in-house and charges were very rarely put”. But if the lessons are the same, there’s hope. Anderson says things “changed in the 1970s. It was a more open period for investigative journalism and for people to challenge authority”.

The Law Society and sexual misconduct

The reports by Newsroom of incidents at Russell McVeagh weren’t the first time sexual harassment in law firms had been recently brought to the Law Society’s attention. In November 2017 a lawyer wrote an anonymous article for LawTalk, the New Zealand Law Society’s magazine, describing two incidents of sexual harassment she experienced as a young lawyer. The Law Society responded with a statement titled “Law Society targets sexual harassment in the workplace” but it was empty of any concrete actions being taken to target sexual harassment, and ended stating “as a profession we must also look at ourselves and agree that any harassment in our workplaces is absolutely unacceptable”.

The latest issue of LawTalk contained a number of articles about sexual harassment in the legal profession. Tim Jones, Auckland Vice-President of the New Zealand Law Society, wrote in the issue’s ‘from the Law Society’ editorial that the “Society receives very few complaints of harassment in the workplace”. Notably missing from the list of conduct the New Zealand Lawyers & Conveyancers Disciplinary Tribunal has typically found to be misconduct is “discrimination, sexual harassment and assault”.

The issue of LawTalk also notably publicly names John Revans Eichelbaum for “failing to treat another lawyer [opposing counsel] with courtesy and respect” by, among other things, asking her to bend over. Former lawyer Olivia Wensley told the NZ Herald that she has knowledge of the complaint and the report published by the Law Society had been “sanitised”.

Sexual misconduct in law firms

Recent media and online reports have confirmed that serious sexual harassment (including harassment involving physical contact), bullying of employees and colleagues, and alcohol abuse is occurring in law firms across the country and remains underreported. This should be the subject of deep reflection and action by all law firms.

In many cases the law firm partners became aware of the conduct, but failed to protect their employees. There’s a hesitation to report misconduct of fellow business partners to the Law Society, in spite of their legal and ethical obligations as lawyers to do so. When faced with the prospect of protecting a partner who might be earning the firm $1 million of fees annually and protecting a solicitor who might be earning the firm $200,000 of fees annually the partner is often shielded from meaningful consequences for their actions. Sometimes human resources staff are aware of the conduct, but they are conflicted working for the partnership and managing a partner’s misconduct. Often there is a severe gender imbalance in these partnerships.

There is sometimes crossover between law firms this type of conduct occurs in and firms nominated for “Employer of Choice” awards, which raises the question of what policies and procedures should be in place and what culture should exist for a law firm to be nominated as a “good employer”.

Partners that eventually leave firms because of this sort of conduct often go on to work at other firms, perhaps due to inadequate reference information being sought or provided, or as independent barristers in New Zealand.

What’s the price of silence?

Complainants who leave the firm and pursue a claim under employment or human rights law often have their claims settled, with settlement amounts ranging from $25,000 to $100,000, including costs. Those agreements are generally subject to strict confidentiality clauses that largely protect the law firm and person or people accused of sexual misconduct, even explicitly prohibiting contact with the media and including prewritten media statements to give if the former employee is approached for comment.

The Law Society’s (lack of) response

Last Wednesday I emailed the Law Society several written questions about their approach to sexual and other harassment. They have not responded to those questions, although they had previously instructed a lawyer to send me a warning letter.

Those questions, in an edited form, are listed below.

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Questions for the Law Society

Law Society training on sexual misconduct and bullying

1. Have the staff/tribunal/committee members involved in considering sexual misconduct complaints received any special training? If not, why not?

2. Does the Law Society collect statistics on sexual misconduct and workplace bullying complaints? If not, why not?

3. Does the Law Society survey the profession on sexual misconduct and workplace bullying? If not, why not? [The Law Society wrote in their latest issue of LawTalk that they are preparing a national survey on the workplace culture of the New Zealand legal profession. Will that survey be statistically robust?]

Help for practitioners

4. Does the Law Society assist practitioners to access professional mental health support and advice in relation to their wellbeing, alcohol use, inappropriate behaviours (for example sexual harassment and bullying), and when they are facing serious Law Society complaints? If not, why not?

5. What support does the Law Society provide to law firm employees, especially junior practitioners, who are being bullied including being turned down for promotion because they challenge an unsafe working environment?

Criminal conduct

6. Is conduct that could be considered as criminal conduct referred to the Police for investigation when it comes to the Law Society’s attention? If not, why not?

Harm reduction

7. If a practitioner has employees and is accused of serious sexual misconduct or bullying, does the Law Society consider suspending that practitioner pending the completion of their investigation?

8. How often does the Law Society use supervision and law firm management professional development to address misconduct like this?

9. What is the Law Society doing to stop predatory behaviours (often from partners or senior employees) at the source, for example compulsory programmes on appropriate relationships and conduct, rather than placing the onus on employees to report or otherwise manage other people’s misconduct?

Other employees

9. Are other employees involved in conduct complained about offered appropriate support (for example access to Employee Assistance Programme-type support and independent legal advice, and are they given the opportunity to engage in the Law Society complaints process? If not, why not?

10. Does the Law Society look at the whole firm when addressing complaints, including whether human resources staff and partners have appropriate training and direction, especially to deal with the misconduct of a partner?

11. Will the Law Society, of its own motion, pursue practitioners, including partners, who know of but fail to report matters constituting misconduct to the Law Society?

Career and family

12. What is the Law Society doing to support lawyers wanting to have a career and raise children?

Confidentiality clauses in settlement agreements

13. Does the Law Society support the inclusion of confidentiality clauses for the benefit of the law firm into law firm employees’ settlement agreements when the settlement relates to sexual harassment and/or assault by practitioners?

14. Are the use of these clauses for the benefit of the law firm appropriate conduct from the partnership, especially when a practitioner is the perpetrator?

Stopping misconduct

15. What does the Law Society do to prevent similar conduct from recurring when addressing consequences for practitioners, for example publication of names or completion of sexual misconduct programmes?

[On 29 March 2018, a day after these questions were sent, the Law Society published details of an upheld complaint regarding sexual harassment of opposing counsel.]

16. Does the Law Society monitor law firms and practitioners involved in complaints to ensure action is taken to prevent misconduct occurring again?

Image credit: Buffy May, Wellington Supreme Court building, CC BY-SA 2.0.

Girls, Not Brides

Girls Not Brides - end child marriage now graphic

My submission on the Marriage (Court Consent to Marriage of Minors) Amendment Bill:

Thank you for the opportunity to submit on this Bill.

I agree that this Bill is a good first step, however it does not go far enough and should be amended to ban all forms of child marriage and civil unions. The legal minimum age of marriage and civil union should be 18 with no exceptions. This includes no exceptions due to judicial or parental consent.

I study a Bachelor of Arts (Psychology) and a Bachelor of Laws.

As a young person, I think it is important that the voice of youth is taken into account during the Select Committee process at all times, but especially when issues relating to young people are being debated and discussed.

We set legal ages for many activities. When someone is 16 they can’t vote, they can’t get their full driver licence, they can’t buy alcohol or cigarettes, they can’t apply for a credit card, they can’t buy Instant Kiwi scratchies, and they can’t gamble in a casino. We set these limits because we are conscious of the development stages of children.

A non-government organisation’s name states this bluntly. These are Girls, Not Brides. Their ‘Role of Parliamentarians’ report is attached.

Sustainable Development Goals

New Zealand has agreed to the Sustainable Development Goals. To achieve target 5.3 this Bill must be amended to ban all marriage for children under 18, with no exceptions.

The Sustainable Development Goals are the successor of the Millennium Development Goals and are intended to determine national and international development priorities up to 2030. There are 17 goals and 169 targets and one of them relates to child marriage.

All United Nations member states pledged their support toward achieving target 5.3, which is to end child marriage. Ending child marriage will contribute to achieving eight of the Sustainable Development Goals.

To be clear: New Zealand will not end child marriage by 2030 unless the practice is completely prohibited – this means there can be no loopholes such as obtaining judicial approval.

This Bill is the perfect opportunity to implement target 5.3 through an amendment that will prohibit child marriage entirely.

The Rights of the Child

The Committee for the Convention on the Rights of the Child recommends that the minimum age of marriage be 18 years.

Child marriage affects the rights of children, especially girls’ right to health, education, equality, and the right to live free from violence and exploitation.

Child marriage increases health risks.

For girls it encourages the start of sexual activity when they are still developing and when they might not know as much about their rights and sexual and reproductive health. Girls in a child marriage are forced to negotiate safe, consensual sex with usually much older husbands.

They are under social pressure to prove their fertility and so are more likely to experience early, unplanned and frequent pregnancies with an increased risk of pregnancy-related issues.

Girls married before 18 are more likely to experience domestic violence than unmarried peers and to report that their first sexual experience was forced. Child brides more likely to believe that a man is sometimes justified in beating his wife compared to women who marry later.

A rubber-stamping process

My preference is for this Bill to be strengthened so that no marriages of children under 18 occur.

However, if the judicial consent avenue is taken the process needs to be strengthened.

  • From watching the speeches at the first reading of this Bill, it seems clear that the intention of the Bill is to reduce the number of these marriages, however the Bill provides no criteria for Family Court judges considering an application from a 16-17-year-old to take into account.
  • The Bill does not empower judges to seek funded expert reports, such as psychologist or cultural reports, or to order funded counselling. A lawyer for child should be appointed and reports such as cultural, medical, psychiatric, and psychological reports should be able to be requested by a Family Court judge. Family Court Act 1980 section 16D would need to be amended too.
  • There is no need for the Bill to include provisions around public/media presence and other matters that are covered by other Family Court legislation. Sufficient controls on the media and public are contained in the Family Court Act – a person under the age of 18 or a vulnerable person cannot be identified in a report and the public are not able to attend hearings without consent of the Family Court judge.
  • The Committee should consider amending Family Court Act 1980 section 12A rather than including an evidence subsection in the Marriage Act.
  • This Bill should be compared to the law in Australia. If the judicial approval approach is taken the legislation should be reworked to be much more similar to sections 11 to 21 Marriage Act 1961 (Australia). For example: that authorisation should only be granted in exceptional circumstances, parental authorisation should be required as well, expiry of consent etc. The Australian law makes it clear that the intention is to reduce child marriages: “the circumstances of the case [shall be] so exceptional and unusual as to justify the making of the order”. However, please note that even this does not meet the Sustainable Development Goal requirements.

UNICEF recommendations

The Committee should consider UNICEF’s recommendations (PDF), such as:

  • child marriages should be voidable by either party with applications being able to be made within two years from the date the person reaches the age of majority (with considerations made regarding immigration status, division of property, and care of children);
  • in relation to penalties; and
  • child marriages taken place to date should be analysed.

Civil unions

The Civil Union Act 2004 should also be amended to make the minimum age for civil unions 18.

Image credit: Girls Not Brides

Excessive burden? USA not contributing to NZ’s $5.8m Dotcom case costs

Kim Dotcom outside New Zealand's Parliament

Crown Law has provided figures under the Official Information Act on the money and time spent in relation to legal work completed in respect of Kim Dotcom and his associates which amounts to more than $5.8 million.

Crown Law writes that the United States Department of Justice is not reimbursing New Zealand for any of these expenses, even though the cases largely relate to charges that they wish to bring against Mr Dotcom and his associates.

Crown Law hours spent

The figures:

  • are as at 8 February 2017;
  • include work on both domestic and mutual assistance (United States initiated extradition) legal proceedings;
  • exclude work completed to provide advice to other Government Departments, for example the Police or the GCSB who respectively picked up the bill for Crown Law’s advice to them; and
  • include most Crown Law legal staff time and some support staff time.

2011: 432.10
2012: 7,356.67
2013: 4,087.50
2014: 5,742.27
2015: 4,911.80
2016: 3,207.26
2017: 4.77
Total: 25,742.37

25,000 hours.

Using a conservative estimate of the value of the time spent ($140 per hour,1 which is the rate a Crown Law junior prosecutor would be billed out as – senior solicitors’ time is likely worth more, support staffs’ likely less), this comes to around NZD $3.6 million.

Disbursements

New Zealand has also covered the bill for work completed by external counsel on Crown Law’s behalf and expenses paid by Crown Law in relation to the Dotcom/Megaupload matters – another NZD $2.2 million.

This includes: $1.98 million on external barrister/solicitor fees, $171,800 on travel and accommodation, $23,151 on Court filing fees, $20,125 on photocopying, and $17,356 on professional fees including research material.

An excessive burden?

At least NZD $5.8 million has been spent on Kim Dotcom et al. by New Zealand so far, and it begs the question: was it worth it?

Should we have refused the United States’ mutual assistance request when it was made? Section 27(g)(i) of the Mutual Assistance in Criminal Matters Act 1992 allows New Zealand to refuse a request made by a foreign country if “in the opinion of the Attorney-General, the provision of assistance would impose an excessive burden on the resources of New Zealand”.

Kim Dotcom had hundreds of millions of dollars worth of assets before the raid on his home and it’s not a shock that he has aggressively defended the cases brought against him.

If spending $5.8 million+ has not been an excessive burden on New Zealand, what amount would be?

1 This is a lower rate to that used by David Fisher in his September 2015 article of $198/hour.

Image credit: Sarah-Rose


The full response from Crown Law, including the breakdown of expenses incurred is embedded below.

Peter Thiel’s New Zealand Citizenship File

Peter Thiel

At around 5:15pm today the Department of Internal Affairs released some of the information they hold on Peter Thiel’s application for New Zealand citizenship, emailed on mass to those who had made requests under the Official Information Act.

Peter Thiel has never lived in New Zealand and doesn’t plan to live in New Zealand. He’s a controversial figure. We looked past that because of a few New Zealand business investments, public speaking engagements, and a donation to the Canterbury earthquake relief fund.

Neil Strauss wrote a book in 2009 called Emergency about disaster preparedness. In one part he investigates the trend of the super rich applying for secondary citizenship in another country. They wanted to be prepared when “the shit hits the fan” by having a Plan B country to retreat to if there was some sort of disaster. Strauss said New Zealand would be a great country to have citizenship in but that our requirements are so strict. He settled for Saint Kitts and Nevis.

When you’re Peter Thiel and are worth US$2.7 billion, I guess you don’t need to settle.

Thiel has his Plan B, New Zealand, but don’t expect to see him around unless the world is falling apart.

Highlights and the full documents are embedded below:


DIA’s PDF document released 1 February 2017

Image credit: Heisenberg Media CC-BY-2.0

MBIE’s Chief Engineer on a reduced standard of earthquake repairs in Canterbury

Earthquake damaged buildingThe Ministry of Business, Innovation & Employment has released a 2013 briefing to the Minister of Housing Hon Dr Nick Smith written by their Chief Engineer.

The Minister asked about a reduced standard of repair for older properties “particularly in the context of Housing New Zealand [properties]”, however the Ministry’s response is still illuminating:

  • There is no reference to the Earthquake Commission Act 1993 and the standard of repair required by the Act.
  • Although a building may have been damaged, the Ministry provided a list of scenarios where “no repair is required”.
  • Minimising cost and avoiding obtaining engineering advice for individual properties were primary considerations of the Ministry.
  • The Minister was concerned with avoiding “excessive” money and time spent on earthquake recovery.

The full document is embedded below.