Judges unable to identify bias

Finding a NZ lawyer prepared to seek disqualification of a judge for potential bias can be as difficult as finding a needle in a haystack. Lawyers not only fear provoking the judge’s personal wrath, they correctly advise their clients such a request will not only be unsuccessful but may likely offend the judge’s sensitive ego and make him more biased.

The advice is reinforced by NZ appeal court judgments, which routinely attack lawyers for appealing a judge’s refusal to disqualify himself/herself from a case. The resultant conduct can be quite juvenile, as in an appeal last year where Court of Appeal Justice Grant Hammond was the presiding judge.

Judge Hammond wrote a short book in 2009 which queried situations where judges ought to recuse themselves. His book pontificated on the necessity of judicial independence such that judges should never be offended by counsel’s applications for judicial recusal. But how Hammond J’s sanctimonious theory fits with his practice was apparent in the Smith v Attorney General appeal last June when Hammond J not only tried to shut down counsel’s recusal application by telling counsel he did not want to hear it and stating “Now, that frankly is offensive”, but apparently defended all judges by adding “The notion that a judge would sit when the Judge doesn’t feel he or she is independent… really is very very distressing.” Hammond J then refused to release the court transcript which showed he was a hypocrite on the very subject his $200 book expounded, requiring a Supreme Court order it be produced.

Hammond J’s book may make him the poster dam-builder for judicial independence in New Zealand, but the reality is he is nothing more than the boy with his finger in the dike. This is not unique to him. Two appeal judgments in the last month prove judges refuse to acknowledge judicial bias in New Zealand, possibly out of fear the whole system will fail if the public find out how pervasive judicial bias truly is.

One of two unrelated judgments last month dismissed accountant John Russell’s alleged bias claim against District Court Judge Barber in finding him guilty in a tax avoidance scheme case brought by the Commissioner of Inland Revenue and decided in 2009. Twenty one points of judicial bias were raised. High Court Judge Mark Cooper earlier upheld Barber J’s refusal to disqualify himself. Russell’s appeal of Barber’s subsequent ruling against him was upheld in the High Court in September 2010.

While conceding some of Judge Barber’s more inescapable previous comments of Russell were unfortunate, the Court of Appeal claimed this did not appear to rise to apparent bias. Astonishingly, the appellate court rationalised that even if Barber was biased the fact Russell appealed his ruling “cured” any bias by the trial judge. By this unsound reasoning, from a full appellate bench no less, no one who eventually appeals is legally entitled to an unbiased judge at trial.

Reached for comment by kiwisfirst, Mr Russell vowed to appeal the decision to the Supreme Court. While he was not optimistic of a reversal, he said the Court of Appeal ignored the most damning evidence, as well as wrongly suggested his appeal was a “rehearing” of the original trial where 135 eastlight folders of material were presented to the Court by Inland Revenue alone.

On 20 April 2011, the Supreme Court dismissed a leave application alleging bias by Judge Helen Winkelmann in striking out a Bill of Rights claim by Vince Siemer against the Solicitor General in November 2009. The Court of Appeal earlier refused to address certain evidence Judge Winkelmann was simultaneously instructing the Solicitor General to “pursue by whatever means” Siemer as she deliberated over the Solicitor General’s application to strike out Siemer’s rights abuse claim against him. In her judgment reasoning, Winkelmann J said simply “I accept the (Solicitor General’s) submission that these allegations have no foundation.”

The Solicitor General never filed a statement of defence refuting the claims.

The Supreme Court proved more averse toward the evidence of judicial bias by Winkelmann J, declaring “the decision of the Court of Appeal was undoubtedly correct in all its aspects” when refusing to hear the appeal. A recall application disproving this assertion has been administratively buried by the Supreme Court.

Meanwhile, concern is widespread enough that Attorney General Chris Finlayson met with judges on the Rules Committee with a view toward creating impediments to lawyers and litigants who wish to question or challenge judicial misconduct. Last year Parliament amended the Judicial Conduct Commission Act to appoint a deputy commisioner as a stopgap measure to deal with an escalating backlog of complaints of misconduct against judges.