The Crime Of Candor
New Zealanders live with pervasive suppression orders by judges. The extent of the information being suppressed is anyone’s guess. In an interview with a TV3 reporter earlier this year, University of Canterbury associate law professor Ursula Cheer responded “there are hundreds of suppression orders made every week”. Yet we are told to trust and take comfort that our judges who are politically appointed for life would not suppress that which is important for us to know.
Contrast this with the current prosecution of Barrister Chris Comeskey by the New Zealand Law Society for criticising judges. His prosecution seems to confirm that tyranny and oppression are the inevitable result of a government telling its citizens what they are allowed to know, see or say – no matter how noble the motives.
The consequences are severe; the equivalent of an economic life sentence. The Law Society are threatening to take Mr Comeskey’s livelihood away for saying too many NZ judges ” have parked their commonsense on the window ledge” and “forget their crucial function in delivering justice”.
It is generally conceded Mr Comeskey’s expressed opinions are sincerely held. In other words, he isn’t being prosecuted for lying. Once upon a time, we relished someone in such a privileged position giving informed opinions. One would think this is particularly valuable given the cloistered way in which the NZ judiciary operates, largely out of the public view.
What does it say of New Zealand when criticising judges is tantamount to “bringing the judiciary into disrepute” and punishable by loss of profession? Fair criticism of judges used to be a fundamental right in a democracy. None other than Lord Robin Cooke was lauded a generation ago for his often sharp legal criticisms. In contrast, Nelson lawyer Sue Grey was fired from her Crown job in 2008 for criticising – quite appropriately as it turned out – Supreme Court Justice Bill Wilson for presiding over the Saxmere v Wool Board appeal where the Judge’s business partner (and personal banker) appeared before him.
One big problem is the often incestuous relationship which exists between the judges and many who appear before them. Crown Law is a particular concern. Just last week, High Court Judge Lester Chisolm dismissed a judicial review of a case which exposed the Christchurch Crown Prosecutor cancelling and rescheduling trial settings without the approval of any judge. Chisolm J did not even reflect before issuing his oral judgment which determined it was okay for the prosecutor to adopt the power of a Queen’s judge in New Zealand — in a case he was actively prosecuting.
These would seem cause enough for just criticism. But Mr Comeskey had more personal reasons. Mr Comeskey’s comments about the quality of the court judgments being “abysmal” were prompted by a Whanganui District Court Judge ordering him to testify against one of his clients. It was not the threat of nuclear holocaust which motivated the judge. The case concerned his client allegedly being involved in the theft of war medals from a history museum.
Lawyer/client privilege is a cornerstone to every law-respecting culture. But the Law Society will not defend this cornerstone because the breach is by a judge. According to their logic, such a challenge would bring the justice system into disrepute.
So if lawyers cannot criticise judges who reject lawyer/client privilege, or insist the presiding judge be impartial, one must legitimately question what laws are sacrosanct in the NZ Courts. Since the loss of the Privy Council, it seems the only law (more precisely, a rule) that is unassailable is that judges cannot be criticised.
Take the case of Barrister Evgeny Orlov, who took a pro bono case against the Ministry of Social Development on behalf of a couple whose two children were taken away from them without a hearing. Judge Rhys Harrison dismissed the claim on the grounds the State agency could not be sued – then awarded costs against the lawyer! Mr Orlov sharply criticised Harrison J, resulting in a protracted prosecution of Mr Orlov by the New Zealand Law Society after Judge Harrison made a complaint.
Predictably, these rulings are turning practicing lawyers into judicial lackeys. Lawyers have a bad enough reputation without judges making lawyers fearful of standing up for the rule of law, valiantly representing their clients or challenging judicial conflicts of interest – let alone insitutionalising disregard for lawyer/client privilege. As seen with Orlov and Comeskey, those lawyers who do not bow to judicial fiat, are brutally ostacised and worse. It is invariably the public which suffers.
The situation has deteriorated rapidly since the loss of the independent Privy Council. In New Zealand, judges prefer lawyers rely on case law (judge made law) rather than statute. The problem is there is very little consistency in New Zealand case law. This leaves maximum discretion for the judge. Lawyers are petrified about offending the sensitivities of the presiding judge, duly mindful the law means far less on the day than the judge’s whim.
Since the Supreme Court replaced the Privy Council, NZ judges have consolidated unprecedented power. And no accountability. In 2004, they gutted the Judicial Matters Bill of any effective oversight of judges. In Gregory v Gollan last year, the Supreme Court overturned the Judicature Act provision which still states parties to litigation can “require” trial by jury. The Supreme Court bench declared that trial by jury can now only occur if a judge exercises “discretion” to allow it. Then, in Easton v Broadcasting Commission, the Supreme Court condoned judges imposing discretionary cost impediments (security) against litigants even where such discretion will render a meritorious claim nugatory. Yesterday, the Supreme Court granted leave to the Attorney General to appeal A-G v Chapman on the ground that judicial conduct is exempt from damages under the Bill of Rights Act.
Notwithstanding these, Saxmere v Wool Board is the watershed case which has awoken the business world to the insular world of New Zealand judges and the consequent legal risk to conducting operations in New Zealand. That New Zealand brought retired Australian Chief Justice Murray Gleeson over to analyse Supreme Court Justice Bill Wilson’s conduct in the debacle, and then quietly sent him off packing, has many New Zealand businesses considering their own packing. Wilson’s fellow judges are counting on Kiwi apathy to prevail in what is already a two year long scandal. The problem is that businesses cannot afford to ignore the message in the government allowing Wilson to stay on New Zealand’s highest court in such a high-profile conflict of interest case.