Rich Court, Poor Court

“Justice for all” may be the public signpost but a case set to be heard in New Zealand’s highest court on 5 May 2015 threatens to expose a far different reality.  It is scheduled to be the 7th hearing this year in the purpose-built $100 million building – out of a Supreme Court buildinglikely 18 to be heard in 2015.

Marteley v Legal Services Commissioner is a battle which pits the seemingly endless financial resources of the Judges, Crown and their cohorts against the muted masses whose lack of money is the measure by which the NZ courts traditionally define and limit their legal rights.  The case provides a microcosm of an unfair system to the extent it attacks the undecipherable morass which we call “legal aid” and lays bare the inequality of Crown lawyers getting off-budget fees eight to ten times that of their legally aided adversaries.  Yet little of this is apparent in the delicate judgment which granted the hearing.

For its part, the Court of Appeal did little to settle the law, with the Criminal Bar Association saying of its Marteley ruling, “It is not an entirely straightforward decision to digest.”  This is not unusual.  The New Zealand legal aid scheme has never been straightforward.  But the Court of Appeal decision is so confusing that the Bar Association opined “it remains in practice a favourable decision to those seeking aid for an appeal” notwithstanding its endorsement of a grant process which calls for the Commissioner to make value assessments of appeal merits – a position which is at odds with the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems which disapproves of such subjective benchmarks.

In another 69 page 2013 ruling, the Court of Appeal dismissed a Criminal Bar challenge to legal aid cuts other than to declare policy changes unlawful which fettered the Commissioner’s discretion to grant or refuse aid.  Since then, the Supreme Court has issued four leave judgments in appeals against the Legal Services Commissioner.

For all its public egalitarianism, the New Zealand Courts have a long and sordid history of shutting the poor and those of moderate income out.  R v Taito [2002] was a Privy Council decision which ruled the highest court in New Zealand at the time was engaged in systemic rule of law breaches which denied as many as 1,500 criminal defendants their first right of appeal.   Many appeals were dismissed by the Court of Appeal Registrar on the papers.  Ten years after the Privy Council ruling in Taito, investigative reporter Bryan Bruce aired a programme which imparted this knowledge to the masses.  By then, the Privy Council had been replaced by the New Zealand Supreme Court.  A valuable portal to justice had been closed.

In declaring judges immune from accountability for rights abuses which Taito confirmed were systemic in New Zealand, the nascent Supreme Court reasoned in Attorney General v Chapman [2011] NZSC 31 that “remedial protection” for rule of law abuses by judges was now available by virtue of the creation of the Supreme Court, adding “This provides accessibility to appellate review of the Court of Appeal that was not available at the time of the respondent‘s first appeal.”

Nice thought but do not bet any money on it.  The Supreme Court hears 20 appeals per year compared to 10 by the Privy Council.  Many Supreme Court appeals are rejected with rubber stamp reasoning notably detached from the appeal grounds.  Access to the applications which prove as much has been strictly prohibited by the Supreme Court Registrar since October 2013.  When Prince William formally opened the N.Z. Supreme Court palace on 18 January 2010, the Tongan newspaper Kele’a published what New Zealand media could not – that “There are judgments made at Court of Appeal and Supreme Court level without reasons given. One may wonder why judges in N.Z. do not uphold the Law and the Constitution”.

Marteley is poised to confirm the Court of Appeal is still the bulwark preventing justice in New Zealand notwithstanding the Privy Council condemnation in Taito, and the Supreme Court assurances in Chapman.  The reality is the New Zealand Supreme Court seldom factors; and the Supreme Judges prefer to maintain judicial secrecy – euphemistically labelled ‘independence’ – where they do factor.

The situation has become so bad that at least twice in the past nine months (in R v Chapman and H v Waitamata Health Board), the Supreme Court judges told hopeful appellants off the record to take their appeals back to the Court of Appeal for recall!  Both appeals were by lay litigants unencumbered by court politics and career threats. Each appeal demonstrated gross judicial negligence which the Supreme Court chose not to address despite their statutory mandate and their proclamation in Chapman.

Sadly, no lawyer is prepared to front against corrupt or incompetent NZ judges.  The reason many give is we live on a small island nation where “you must go-along to get-along”.  Of course, that does little for the interests of justice and those clients throwing money in pursuit of it.  The truth, however, is perhaps more insidious – again, as Marteley suggests.

Francis Cooke QC – son of Lord Robin Cooke – was engaged by the Legal Services Commissioner to oppose the Marteley appeal at the Court of Appeal at the lordly sum of $38,500.  Had Marteley’s counsel been granted legal aid – judged insufficient to warrant the battle for aid approval – he would have received the pauper’s pence of $3,000 to $5,000.  As it turned out, he received nothing, notwithstanding the legal issues he raised being significant enough to now be heard in rarefied air of the $100 Million judicial palace.

Such a reality does not go unnoticed in New Zealand.  The appellant’s lawyer Dr Tony Ellis has never been tapped to be a richly-paid Amicus Curiae or Crown legal expert despite being the most successful human rights lawyer ever to grace the Land of the Long White Shroud.  Lawyers know to shun cases which threaten the Crown’s authority, keenly conditioned by the perverse punishment/reward system which goes unchallenged for the same reasons it has been so successful.

The last line of the Appellant’s submissions will test the mettle of the Supreme Court judges on this perverse patronage system even if it gets glossed over in the eventual judgment and the public are prevented from reading them – “It was unfair not to be awarded costs.  Such matters of public importance should attract indemnity costs.”