Obituary: Judge who oversaw NZ's most controversial trials was humble and humane

Credit: Original article can be found here

Simon Peter France, judge, 29 May 1958 – 8 April 2023

There were times during the 2012 murder trial of Ewen Macdonald when Simon France would have been forgiven for wishing he was somewhere else.

Macdonald had been charged with shooting his brother-in-law, Scott Guy, at his front gate, in a case that fascinated and fixated the nation.

France, the judge presiding over the case, had seen madness almost breach the ramparts of his Wellington courtroom, as members of the public competed for access to the public gallery, sprinting across the High Court’s foyer when the doors opened, or queueing impatiently between sessions.

Inside the courtroom, France’s patience was further tested by media writing asinine stories about witness body language; police wanting to produce a jailhouse snitch at the last minute; a reporter wearing shiny gold pants; and a cold that threatened to overwhelm him.

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His spectacular thatch of silvery hair became increasingly troubled and unruly.

When a reporter broke a crucial suppression order while the jury was deliberating, France, who died last weekend at the age of 64 after a short illness, was furious, the month-long trial now at risk of being aborted.

At that moment, the matter of the NZ Pork Board v The Director General of Agriculture in an adjoining courtroom must have seemed a preferable case.

The trial of Macdonald, who was found not guilty, made France something of a public figure – something he loathed, but endured.

He had already presided over another hugely controversial trial, that of Murray Foreman, acquitted of murdering Hawke’s Bay farmer Jack Nicholas; and would go on to deal with the high-profile 2015 retrial of Mark Lundy for murdering his wife, Christine, and daughter, Amber.

In handling these cases he drew plaudits for how he controlled evidence, explained difficult concepts to jurors, and treated witnesses with respect.

“They were difficult trials,” remembers former High Court judge Sir Ron Young, “but he was the right person to do them.”

France was born in Wellington, the youngest of five children, but most of his childhood was spent in Whangārei.

At Pompallier Catholic College, he was head prefect, a member of the cricket 1st XI, and captain of the rugby 1st XV, at one stage being selected as hooker for the North Island secondary schools team.

In his first year at Auckland University’s law school, he met Ellen Larkin, now Supreme Court judge Dame Ellen France.

They married in January 1981, and went to Queen’s University in Ontario, Canada, to complete their post-graduate legal studies.

When they returned in 1984, France became a law lecturer at Victoria University in Wellington.

Geoff McLay, now a law professor at the university, was taught criminal law by France in 1988, and says his lecturer was less severe than some of his predecessors using the Socratic Method.

“The overwhelming impression of him was that he was kind.

“I remember that was the first time I ever actually volunteered an answer in class. And I said something very obvious, and Simon said, ‘Oh, that sounds like a great idea – I don’t know why anybody hasn’t thought of that before’ – quite seriously.

“But I now know there was probably 50 years of scholarship about what I’d said, but he was that kind of encouraging person.”

In 1995, France left the university to join Crown Law as a senior appellate lawyer.

It was here, in 2004, that Sir Ron Young first encountered him, in a landmark case where several prisoners were suing the Corrections Department, alleging they had been tortured.

“And I was hugely impressed by him,” remembers Young. “I thought at the end of it, boy, he’s such a good advocate.”

The following year, France joined Young as a High Court judge, and the pair became close friends, popping into each other’s rooms before court each morning.

“And we’d spend 15 to 20 minutes talking about the world and what had happened.”

They talked about politics, sport, and religion – France a devout Catholic, Young an equally committed atheist.

“And he always had a perspective, and he always had an interesting idea, and he was always interested in what was going on – and I really valued that.”

In court, France’s intellect was evident as he coped with extremely complex issues, interpreting abstruse evidence and arcane legal principles for juries of laypeople, Young says.

“He was just damn bright.”

But compassionate, too, with those appearing before him as defendants or witnesses.

“He was so conscious these were people suffering real issues, and it was traumatic for them, it was difficult, they were under stress, and he was conscious it was his job to make what was the equivalent of going to the dentist as easy as possible – or at least as humane as possible.”

However, France could sometimes be blunt to the point of being brutal, Young says, eschewing euphemism and tiptoeing legal nicety.

An example was when he recently castigated police for their interviewing of a suspect that resulted in a false confession in the 2016 murder of Lois Tolley, saying police manipulated, exploited, and spoke “nonsense” to the suspect.

In throwing out the evidence, France said police breaches of rules were repeated and serious, and the confession was “improperly obtained by an unfair process”.

“These judgments required courage,” says Young. “And he never shied away from that.

“If it was wrong, he would say it.”

But France never lost sight of the fact those in front of him were people with real lives and problems.

“You could see that in his sentencing judgments, that he understood that life isn’t quite as simple as black and white, often, and people come before the courts with horrendous backgrounds that you almost feel that for any of us, we would have struggled.”

If anyone knows what it was like to receive France’s careful consideration and wisdom, it’s Hautahi Kingi.

In July 2006, 18-year-old Kingi, who had been a stellar student at Wanganui Collegiate, but was now in his first-year at university, beat up a pupil in the school grounds, over a former girlfriend.

The attack was unprovoked, the victim’s injuries mercifully minor, a cut lip and bloodied nose.

Kingi pleaded guilty to assault with intent to injure, and was ordered to carry out several things before being sentenced: completing 250 hours community service; apologising to his victim in restorative justice; and paying him reparation.

Despite doing this, and the revelation of numerous personal factors that contributed to Kingi’s behaviour, a judge sentenced Kingi to five months in jail, and a friend to four months.

However, when their case was appealed, France quashed the jail sentence and discharged them without conviction, pointing to their potential and the significant contribution they could make.

“The offenders have served an appropriate punishment; no-one suggests there is any chance this type of conduct will happen again. A conviction will significantly impact upon their future prospects, and if that happens, no-one will be the better for it,” he wrote.

“The benefits to society lie in allowing these accused a second chance… It is to be hoped they repay society for the opportunity it is thereby giving them.”

Kingi went on to gain a masters and PhD in economics from America’s Cornell University.

As well as an outstanding academic record, he has worked at the International Monetary Fund, Facebook, and is now a data analyst with Google in New York.

Kingi says without France’s foresight, and decision to discharge him, his life and career would have been severely constricted. If he had been sent to jail, who knows what might have happened.

His lawyer, Colin Carruthers, KC, who represented Kingi pro bono because he was appalled at the original sentence, said France’s judgment showed his thoughtfulness and wisdom, and, ultimately, had been proved utterly correct.

But there was a life beyond the law for France.

His boyhood love of sport continued, being a passionate supporter of everything from netball to basketball.

With the help of Young, and France’s brother Mark, his golf handicap was reduced to respectability.

If there was sport on TV, he would watch it.

But perhaps his greatest sporting passion was horse racing, and he had shares in at least 20 horses over the years, many with friend Mark Freeman.

In 1995, their first horse, Rebellion, won a two-year-old race at Trentham, and Freeman remembers France dancing a celebratory jig in the birdcage.

“He loved a quiet bet,” says Freeman, “but he also enjoyed racing horses, and the disappointments and thrills associated with that. Mainly disappointments, but every now and then, a thrill.”

France was best man at his wedding, and Freeman was a pallbearer at France’s funeral in Wellington on Thursday.

“It sounds a bit trite, but he was just a really good, caring, supportive, warm, good-humoured person. And he’d do anything to help somebody.”

At France’s requiem mass, Chief Justice Dame Helen Winkelmann paid tribute to France’s legal and judicial skills, as well as his modesty and generosity.

“Like Brighton Rock, his values and character ran right through him.

“He was humble to the core, he didn’t like to talk about himself, he especially didn’t like other people to praise him.

“Simon was comfortable in his Simon-ness. He was probably the most grown up person I know – without ego or any need to prove himself or seek approval.”

Winkelmann also spoke of his loving relationship with wife Ellen, who he would send flowers to while away for work, and would constantly praise publicly as she rose through the judicial ranks, including when he exclaimed, “Go you good thing”, when he was sworn in as a judge.

France was appointed a judge of the Court of Appeal in 2022, an elevation that was long overdue in the minds of many, including Geoff McLay, who believes France was one of the country’s best judges, in both criminal and civil cases.

“It’s a great shame he didn’t get a chance to be there where he probably would have done even more in terms of developing criminal law.”

In the end, France served in the Court of Appeal for only six months before retiring due to ill health.

On the wall of Peter Coles’ office in his Hawke’s Bay home is a photo of the counsel and court staff involved in Ewen Macdonald’s trial, together with Simon France. Such was the magnitude of the trial, a photographer was called to memorialise it.

Coles was one of Macdonald’s lawyers, along with the late Greg King, and Liam Collins, and remembers how France skilfully charted proceedings through numerous potential landmines that could have thrown them off course.

“He had the full public spotlight on him. The way that trial was conducted, under all those pressures, was a testament to him.”

Now retired, Coles says the picture is the only legal photo on his walls: “The rest are all dogs and fishing.”

But for him, it’s an important reminder of a case where the criminal justice system worked as it should, and Simon France’s role in that.

“There was never any sense of self-importance with him.

“He was just fair, and he was a bloody nice guy.”