Bouchier's law

by Geraldine Johns / 29 January, 2011
When Josephine Bouchier - the first member of the New Zealand judiciary to take maternity leave while serving on the bench - was made a judge at 35, some believed the Justice Minister had made a terrible error of judgment. But she has proved the critics wrong.
Judge Josephine Bouchier sits in the sumptuous comfort of her lounge in Auckland's Epsom. She has been handed a copy ­of an extract from an old magazine, and as she reads, she cackles. And cackles. And cackles some more.

Today she wears black punctuated with a tinkling of gold: there are necklaces (three), a watch and a jangle of bangles. Even though she's at home, she still bears an air of diligent application to the duties at hand - which is consideration of the extract before her. The judge is reading a 22-year-old guest column from Metro magazine. It's commenting on her impending appointment to the bench, and notes her husband, Senior Sergeant Tony Bouchier, had been an undercover policeman. Clearly, it asserts, hell is going to break loose in the judicial system.

The column, by Auckland lawyer Eb Leary, includes the following: "Generations of judges have stood as a shield between state might and the individual. Ideally, they are fearless of both police and politicians, aware of their position in the public gaze and confident they belong to a judiciary without possible bias. Their position is reflected in the timeless adage, 'Justice must not only be done, it must be seen to be done.' All this should be obvious to the [then Justice] Minister [Geoffrey Palmer], yet he has appointed a judge who has most likely had social intercourse with those likely to give evidence before her. Unremarkable perhaps in Germany in the years immediately preceding 1945, but cold comfort for the herd in her criminal court."

Former MP and policeman Ross Meurant adds his bit: "To appoint a police officer's wife as a judge shows an alarming lack of judgment by the Minister of Justice."

Resignation by her husband would be no solution, continued Meurant, "given the long-standing friendships within police social circles. There is enormous scope for conflict."

For the record, then: Judge Anne-Marie Josephine Bouchier is still married. Her husband, however, left the police force and retrained as a lawyer. Now it is he who regularly appears before whichever Honour it may please (bar his wife) in the Auckland District Court. The same claims about conflict of interest were not raised when he started practising. It is not unreasonable to assume they would never have surfaced had the couple's occupations been reversed back in the 80s.

The Bouchiers were on holiday overseas when the Metro piece - bearing the cover line "Eb Leary on a judicial scandal" - came out. She was 35 and, on her return, would be presiding over cases in South Auckland.

"I felt it was very much out of left field," she says. And clearly the critics were wrong. She is talking on the eve of her retirement after 22 blemish-free years.

Bouchier was among the first of the new wave of women to make it to the bench. Silvia Cartwright, Carolyn Henwood, Heather Simpson, Cecile Rushton; they'd all gone through Law School when women made up only 10% of the budding legal population. Of the 88 District Court judges in the late 80s, just six were women. Judge Augusta Wallace - the first woman to be appointed to the bench - had forged the way (Bouchier was in the adjacent courtroom of the Otahuhu District Court when Wallace was attacked with a machete by a youth in the dock before her). Now, there are 133 District Court judges, 40 of whom are women.

Bouchier - who changed from her maiden name of Budge when made a judge - would set her own records. She was the first serving member of the judiciary to take maternity leave while on the bench, and is believed to be one of only a few judges to have done so.

Are things different now? In terms of the gender balance, yes. Women substantially outnumber men at Law School. But "there is still some discrimination among women in our courtrooms," says Bouchier, "and it's obvious women are not as well paid as men - women partners in law firms, especially."

Not all equality is to be welcomed; some of the female defendants she sees are doing the same types of crime as the men, she explains. Violence by women is a trend not only in New Zealand, but worldwide, and it is, she believes, a reflection of a society that is itself more prone to physical outbursts. "Society is getting more violent. People react more strongly to an incident [than in the past]." Why is that? "Manners have gone out the window."

As an example she points to incidents of road rage, which used to be rare, but are now more common. "The other awful thing is the shocking violence against our children. I can understand most crimes, but not crimes against the defenceless in our society."

It's not just the degree of violence that's escalated, the types of crimes have changed, too. Witness the emergence of methamphetamine, and the subsequent rise in the number of related trials in the past two decades. In Bouchier's early days as a judge, the substance was so new that she and her colleagues were sent on a judicial training course to familiarise themselves with the complexities of its manufacture. This meant she did not make a requested parental attendance at daughter Olivia's school event - something that did not endear her to the school's leaders. Their opinion of her was further dimmed when Olivia explained her mother was attending a cooking class, instead. And what was she learning there? the child was asked. "She's learning to cook methamphetamine," she replied.

Olivia would later claim her mother was better at sending someone to prison than she was at making sandwiches, but it's worth noting that Bouchier junior is partway through a law degree.

Judge Bouchier's father committed suicide when she was four. The young Josephine and her older brother were raised by their mother. They got a feminist upbringing before feminism became an issue. Mrs Budge (who retrained as a teacher when she was widowed) told her daughter that no matter what she did, or who she wed - or whether she didn't - she must always contribute to her family income. And she stressed the importance of a university education.

Josephine chose law because "I felt I had the skills that would enable me to do well in it. I always enjoyed debating and talking and I felt my personal skills would be a good fit in the law. I was never much good at maths - but I did run a trust account [when in sole practice].

In court Bouchier has a jolly-hockey-sticks delivery. There is a brisk enthusiasm about her, evident even on the day of her official retirement. On a warm Friday afternoon, a flock of pin-striped suits, some of them bewigged, gather for the valedictory do. Defence Minister Wayne Mapp is there, as is Justice Judith Potter.

In his address Crown Prosecutor Simon Moore notes the courtroom is "reassuringly packed" to the point of overflowing into the lobby. This, says Moore, is a sincere expression of the high regard in which Bouchier is held (unlike some other judges whom he describes as "unpopular, despised, detested").

The Metro piece has an underlying presence. "In the early days of your employment life, you faced more than your fair share of challenges - some of them cruel," he says. Others make similar references when it is their turn to speak.

Sitting with the same steely attention she employs when on a case, Bouchier then hears Moore say he has never forgiven her, "and [I] remain crushed to this day for when you once referred to my submissions as 'hardly weighty'".

Mention is made of her pragmatism and ability to get the job done, without concern over the possibility of appeal (she has seldom had a decision taken to the Appeal Court). Bouchier, it is said, is "temperamentally suited to the job".

But it is left to defence counsel Roger Chambers to bring up the habit of some counsel to assign judges nicknames. One was "Purple Death", another "Sam the Eagle", and a third "the Smiling Assassin". "In my 43 years of practice, I have never heard any nickname given of you," says Chambers. "Through all this welter of change, you've always been a steady hand: serene, calm, occasionally purse-lipped."

Outside court Bouchier does have another name. Visitors to Mt Ruapehu during the ski season may know her only as Jo the mountain host. A mad skier, she spends a lot of time on the slopes both locally and overseas. In winter, she works as a volunteer ski guide on her favourite mountain.

The Auckland Women Lawyers' Association had existed for only four years when Bouchier made the bench. Speaking at her retirement, the association's Rachel Reed tells of the murmurings of disapproval about her appointment. They said she was too young, and a woman, Reed says. "Now you should take credit for the number of sister judges who sit with you."

Bouchier has been issued an acting warrant by the Attorney-General, which will see her operate as a judge on a locum basis. One week it's Wellington, the next it's Whangarei. "I am going to serve as a retread," she says. Not forever, mind. The warrant can be renewed every two years until a judge reaches 72, "and there's no way I want to be on the bench at 72".

As for Leary, the hatchet is well interred. They see each other regularly in court - on a professional basis. And "no hard feelings. Absolutely none."
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