Lawless Entitlement Scars Court of Appeal

Why Clare O’Brien is the ‘darling’ of the judges

Her temperament may be more fiery than her red hair but Clare O’Brien’s strength as an apparent gatekeeper of the New Zealand Court of Appeal has made her a darling of the judges, if not her staff.  But it is her personal sense of power and entitlement which appears poised to raise fears among the law-respecting citizenry.

clare o'brien picture
Clare O’Brien

Registrar O’Brien has singularly resurrected the pre-Taito days at the appellate court, a 10 year period where the Registrar exerted arbitrary power to dismiss as many as 1,500 criminal appeals without hearing – until the Privy Council decried it a systemic breach of due process in the 2002 ruling Taito v Queen UKPC15.

New Zealand ridded itself of the Privy Council the following year and formed the Supreme Court out of the Court of Appeal judges who had been deemed guilty of the abuse.

It was not long after formation of the Supreme Court that business as usual returned to the Court of Appeal.  Simply put, NZ Judges prefer not to deal with appeals which disclose judicial impropriety at the trial level – and indeed never find such an event.  They trust the Registrar to save them the discomfort of having to look at such evidence where possible.  On this Ms O’Brien has hit her stride, routinely usurping powers which by statute are the strict purview of judges.  One example from last year; she refused to allow a single appeal against any bankruptcy order – preventing appeals by Barrister Barry Hart, lotto winner Malcolm Rabson, bank critic Richard Guy and private prosecutor Graham McCready, among others.  In three of these cases, evidence accompanied the appeal grounds that the trial court had been misled.  McCready’s proceeding is hidden by comprehensive suppression orders which he has repeatedly tried unsuccessfully to have lifted.

Last week, McCready told a Sunday Star Times reporter that Clare O’Brien would be the next target of his New Zealand Private Prosecution Service for assaulting a process server last September.  The story promises to be sensational because undiscovered video said to be in the Crown’s possession purportedly shows O’Brien assaulting process server Richard Creser – but the police have laid charges at O’Brien’s request against Creser!

Moreover, Ms O’Brien’s statement to Police admits she shoved Creser, whereupon Creser immediately stated he would file a complaint to police (he did not do so).  After this provocation by O’Brien, she claimed “I felt him pushing my arm”.  This was the assault and battery charge she took to the police after consulting with the Court’s ‘legal advisor Roger Howard’.

Police did not release Ms O’Brien’s Statement until last week, more three months after filing charges and missing two self-imposed deadlines for its disclosure.  They have to date failed to acknowledge requests for the suspected video.

Mr McCready says O’Brien and the Police have a huge problem aside from the video.  He says he has never heard of a criminal prosecution where the alleged ‘victim’ has admitted to initiating the assault on the alleged perpetrator and walked away with admittedly no injuries.  O’Brien’s statement is not even clear on how she was allegedly assaulted.   McCready notes O’Brien is a former police officer, possibly explaining why her admission of assaulting someone has provoked the contrarian response from the police prosecutor.

Meanwhile, Mr Creser is a director of the New Zealand Private Prosecution Service and had served civil papers on behalf of kiwisfirst publisher Vince Siemer, all of which provides distraction as to various motivations on both sides.

That the NZ Police have chosen to prosecute an assault charge on the ambiguous statement of the admitted and uninjured perpetrator of the assault should make the private prosecution for assault and battery against O’Brien relatively easy for McCready, who last week suffered a setback in prosecuting Auckland Mayor Len Brown for bribery when a District Court judge ruled the approval of the Attorney General was required.

Other criminal charges may soon follow against O’Brien.  Her statement to Police reveals she was prior aware Mr Creser sought to serve her in a claim brought against her personally and that she was intent on evading such service.  Yet it is the appearance of collusion with High Court staff to earlier prevent filing of the claim which has more worrisome rule of law implications.  O’Brien admits in her Police statement she engaged in discussions with the High Court registry which then rejected filing of the claim against her, until Justice Ron Young ordered the registry decision reversed.   Her police statement “I feel vaguely threatened” by Mr Creser in these circumstances particularly underscores O’Brien’s sense of self-entitlement, unconstrained by conscience or law.

In the looking glass that is the New Zealand justice system, obstruction of justice and a malicious prosecution are expected by O’Brien to be gratuitously granted her by the High Court Registrar and Police in the same vein she protects the Court of Appeal cabal.  So far they have done so.  But recent indications are the Police are looking for cover.  They have come to lament what they knew from the beginning; that their best evidence proves they have criminally charged the wrong person to advance a political goal, setting the stage for further public embarrassment if they take it to trial.  Creser early on indicated to Police he had a corroborating witness and that he would elect trial by jury.  Police now fear McCready’s involvement will impede their attempts at damage control, forcing them to seek extraordinary measures.

It will be interesting to see what court suppression orders keep this corruption scandal out of the media.