Judicial Conduct Commissioner Sees Little Jurisdiction for Watchdog Role

gascoigne david jpegJudicial Conduct Commissioner David Gascoigne appears to have overcome the fit of conscience which possessed him upon taking over from his predecessor Ian Haynes in July 2009.  In those early days, Gascoigne believed his statutory mandate to identify judicial misconduct was to be taken seriously.  One of his first actions was to lift the stonewall by Haynes of three complaints against Supreme Court Justice Bill Wilson for conflict of interest.  He concluded a prima facie case had been made out and recommended the Attorney General appoint a judicial conduct panel to formally determine guilt and penalty.

“Commissioner Gump”, as one barrister referred to Gascoigne for his naïvete at the time, was promptly knocked back by a successful judicial review lodged by Judge Bill Wilson, although Wilson would soon resign as a result of the judicial misconduct – with $2 million cash and a full pension.

Exactly five years on, Gascoigne is Gump no more.  Complaints which expose judicial misconduct are now universally dismissed as outside the Commissioner’s jurisdiction.  According to recent decisions of Gascoigne, judicial conflicts of interest are now solely the business of the conflicted judge to decide and the Commissioner no longer needs to express a view of his own.  This was demonstrated in a 7 October 2013 Gascoigne complaint dismissal which opined, “The fact that, in your view, Justice Harrison had a conflict of interest does not make it so. Ultimately, the question of recusal is a matter for the individual Judge to determine.”

NZ judges now love this Senior Partner of the law firm Minter Ellison.  Gascoigne has been accepted back into their fold, with the Crown and Judges throwing court business to his firm.  An Official Information Act reply to a Wellington lawyer earlier this year revealed Minter Ellison was paid $31,300 in two of five judicial reviews of the Legal Services Commissioner’s refusal to provide legal aid to criminal appellants.  Minter Ellison’s representation of Legal Services was not constrained to the lower rates paid legal aid lawyers.  Had it been, kiwisfirst estimates they would have received $12,000 instead of $31,300.

Few things are obvious to Commissioner Gascoigne anymore.  In response to a complaint Justice Geoffrey Venning dismissed a High Court application off the court record where a public judgment was required by law, the Commish threw a bizarre legal burden on the complainant with the reply, “You say that the Judge’s Minute was not sufficient to deal with your application and instead a “public judgment” was required. However, you do not point to any particular authority to support this claim. Instead you simply assert it to be so. The Judge’s Minute clearly andconcisely deals with the substance of your application. I do not consider there to be any basis for your suggestion that the Judge has “breached his judicial oath” by dealing with your application in this manner.”

As previously reported by kiwisfirst, lawyers who do not get the message are targeted.  In one extraordinary 2011 case, Justice Anthony Randerson requested the Law Society prosecute Dr Frank Deliu because he had lodged a JCC complaint against Rhys Harrison J.  Demonstrating that unique brand of judicial independence New Zealand is known for, Justice Helen Winkelmann requested she be kept personally informed.

Ironically, Dr Deliu successfully judicially reviewed Gascoigne later that year for failing to rule on a complaint.

Deliu is the exception.  Human Rights barrister Tony Ellis reflected common opinion among the legal community when he told kiwisfirst a JCC complaint “is generally a waste of time”, calling the Judicial Conduct Commissioner and Judicial Panel Act 2004 “a single tooth tiger with its claws removed, (that) would not stand scrutiny by the UN Special Rapporteur.”

Yet, waste of time appears to be only the starting point.  The call of the Judicial Conduct Commissioner and Judicial Panel Act 2004 to New Zealand lawyers appears increasingly similar to an invitation to dinner by Josef Stalin to express one’s criticism of the Politburo.  Lawyers whose survival instincts had them graciously refusing to use the statutory mechanism to rat out bent judges, now feel obliged to publicly praise the judges to demonstrate their loyalty.