High Court Justice Lowell Goddard may be off to the United Kingdom for the next four years or more to head up a Crown inquiry into child sexual abuse but her lingering presence in New Zealand is destined to be felt for some time.
Late last week, Ms Goddard’s judicial colleagues – Court of Appeal Judge John Wild and High Court Judges Graham Lang and Alan MacKenzie – teamed up to refuse to allow an appeal despite conceding the lay appellant was correct on his grounds Justice Goddard failed to understand her jurisdiction and elementary criminal statute in a dismissal judgment.
Two weeks ago, Goddard told British MPs she did not understand the term ‘the establishment’, stating she had to seek advice from her handlers as to its meaning before she replied she was not part of the establishment. This child-like ignorance now appears more credible in light of this latest NZ ruling.
The 19 February 2015 judgment in Zohrab v The Queen accepted Goddard J acted illegally in dismissing a criminal appeal by Peter Zohrab, the judge failing to distinguish between the Summary Proceedings Act and the Criminal Procedure Act. The finding suggests the British government would be wise to provide Goddard with advisors to help her understand basic law in addition to definitions of English words. Too harsh? Not when you consider most of the cases before the High Court are criminal – largely governed by the Summary Proceedings Act and the Criminal Procedure Act.
After Mr Zohrab brought the judicial error to Goddard J’s attention, the judge refused to grant him leave to appeal her ruling. The latest ruling is the Court of Appeal’s refusal of ‘special leave’ to appeal Goddard’s ruling.
The differences between the Acts are not insignificant. Under the heading ‘Did Goddard J act illegally…’, the full bench concluded in Zohrab v Q, “It is common ground that Goddard J erred in this respect, because the charges Mr Zohrab faced were laid prior to the date upon which the procedural provisions contained in the Criminal Procedure Act came into force. As a result, the Judge ought to have determined Mr Zohrab’s appeal using the procedure prescribed by the Summary Proceedings Act.”
“Common Ground” the judge acted illegally?! How often is it that the Queen (respondent) accepts one of her judges from a remote post breached law? While the British Home Secretary coddles and protects Goddard from herself, do not expect Queen Elizabeth to do the same with this subject who lacks a comprehension of English and English law in an English Law Court.
The Court additionally conceded “The Summary Proceedings Act does not contain an equivalent provision to s 232 of the Criminal Procedure Act. Rather, s 121(1) of the Summary Proceedings Act requires the High Court to hear and determine every general appeal, and make such order in relation to it as the Court thinks fit. In the case of an appeal against conviction, the High Court may confirm the conviction, set it aside or amend it.”
What is a review court to do where they find Goddard J operated under a statutory provision in a criminal appeal which could not apply – and no similar statutory provision existed? Dismiss challenge of Goddard’s illegality, of course, on the ground Goddard’s result would have been the same. This they did.
Notwithstanding this familiar result, New Zealand jurisprudence is progressing. Not long ago, such appeal rejections would be by court Minute, thereby keeping Goddard’s embarrassing actions off the published record. This ruling was made public because of the criminal conviction and the lay appellant’s accepted tenacity – not to mention his better knowledge of the law than the judge. The New Zealand Court of Appeal (that is what you call a bench of two High Court judges and a Court of Appeal judge) was under pressure in this case to accurately record Goddard J’s misapprehension of the law, lest the troublesome lay litigant shift their oversight to the New Zealand Supreme Court to grapple with.