Judge Googles for evidence

Judge Hansen uses Google to support guilty finding

Auckland District Court Judge Roderick Joyce QC (pictured) found an Epsom woman guilty of defamation worth $110,000 after admittedly engaging in an independent fact-finding mission during deliberation.  High Court Judge Rodney Hansen this month upheld Joyce’s decision, claiming Joyce’s trolling on the internet for evidence after the hearing was not improper.

In this increasingly technological age, one of the greatest perceived risks to fair trials is that juries will not limit their deliberations to evidence in the courtroom.  Judges routinely instruct juries not to engage in activities such as Google searches relevant to the case, warning that a mistrial could result if such instructions are not heeded.

While the Law Commission, and legal community in general, grapple with how to constrain juries from engaging in independent fact finding during trials, Auckland District Court Judge Roderick Joyce has arrogantly admitted to conducting a “google search” during his four month deliberation to support his $57,500 plus costs ($52,000) defamation ruling in Wells v Haden.

In 2006, Wells and his fellow directors in a scam “trust” filed suit against Private Investigator Grace Haden and her company Verisure claiming defamation and rights to the incorporated trust of the same name (Animal Welfare Institute of New Zealand) registered by Ms Haden.   Wells co-plaintiffs alleged that they together were trustees, but had no trust deed which supported that claim.  They soon fell away from the proceedings and are not named because it is presumed they did not know the trust they were on was legal fiction.  Wells engaged Brookfields Lawyers, who were successful through pre-trial applications in running up costs against the defendants on the claim the defendants had no defence, and therefore should not be allowed to defend themselves.  Wells advanced to a formal proof trial after Judge Mary Beth Sharp debarred Ms Haden’s defence for failing to pay the alleged trustees these pre-trial costs awards ahead of trial for Wells.  While Ms Haden was denied her statutory truth defence, she took some comfort that her facts were well documented.

Joyce J refused to define the scope of the trial ahead of time.  “Trial” proceeded on a statement of claim unsupported by affidavit.  In the witness box Wells affirmed his statement of claim was true.  This, and an affidavit alleging further publications by Ms Haden and stress of the alleged defamation on his family since commencement of proceedings, was the extent of his evidence.

In a fit of benevolence, Joyce J allowed Ms Haden to cross-examine her accuser.  As a former Police prosecutor, she meticulously used documents to impeach Mr Wells’ testimony.  Wells was forced to concede the trust he operated existed only in his mind for a year or two, and that his failure to properly register did not prevent him from gaining approved supplier of animal services to Waitakere City Council.  The Judge would variously refer to this entity as an “organisation” and “unincorporated trust” in his Judgment.  Wells simply referred to it as an “oral trust”.

As a Labour Party mover and shaker, Wells had been able to write the NZ government legislation which allowed him to funnel money from Council coffers into his “oral” trust. There was also evidence he was seriously conflicted in taking diversion money into an account he personally controlled when acting as a Council officer.

Joyce J was obviously incensed at Ms Haden exposing such a trusted political figure and fellow barrister.  His criticism of Ms Haden’s conduct was trenchant and unjudicial, a point reluctantly acknowledge by Judge Rodney Hansen on appeal.  However, rather than criticize Joyce J, Hansen claimed this less than professional judicial conduct unreasonably underpinned Ms Haden’s motivation in appealing.  How Hansen knew this is a mystery.

Joyce J had a problem with finding evidence supporting the actual defamation claim, although this was not apparent given his 93-page judgment.  The Judge relied extensively on Ms Haden’s own affidavit and emails occurring during the proceedings when Wells’ lawyers were preventing her defence, threatening bankruptcy and her family was under siege as a result of the claim.  While notably not part of the statement of claim, Joyce J did not stop there.  In paragraph [314] of his epic judgment Joyce J crossed a clear legal threshold when he admitted to conducting and relying upon his independent Google factual research during deliberation.

In his judgment dismissing her appeal of Joyce’s Judgment, Justice Rodney Hansen whitewashed the Joyce’s Google search(es) after the hearing.  He dismissed the incontrovertible evidence that Joyce J relied upon post-claim affidavits and correspondence to support his judgment.  His honour agreed that Joyce J was free to ignore s29-32 of the Defamation Act, specifically accepting Ms Haden’s apology was not a mitigating factor because it was expressly given to escape the financial onslaught of the litigation.  Hansen J then concluded by stating, “(Joyce’s) findings are unassailable as a matter of fact and law.”

Last week, Barrister Evgeny Orlov filed an appeal of Hansen J’s Judgment to the Court of Appeal.  A formal complaint concerning Judge Joyce’s trolling of the internet for factual support is the subject of an additional Judicial Conduct Commissioner complaint.