“Everyone else is doing it” is a common retort of children. This culture is perhaps the biggest stain on a judiciary where the government runs interference to prevent exposure of judicial corruption out of fear reality will dissuade foreign investors, and there exists no independent Bar, let alone independent oversight. Prime Minister John Key, after all, was former head of derivatives for Merrill Lynch – proof positive investors often do not know what they are buying into.
High Court Judge Joe Williams brought it all together last month. Intellectual dishonesty, cover up and confirmation judicial corruption has more layers than an onion. Up until then, Judge Williams was largely successful in promoting his self-image as a genuine rose among the judicial pricks – that is until he was confronted with evidence the Judicial Conduct Commissioner was protecting his judicial mates.
Siemer v Judicial Conduct Commissioner was a judicial review Williams J grabbed hold of in June, held a telephone conference in September and dismissed with artistic flourish last week without hearing. The protracted delay foretold a conscience but the clarion call of Bill Wilson rang true in the end – “What I am doing pales in comparison to what my peers are doing”. Denounce, deny and deceive.
The Office of the Judicial Conduct Commissioner is the sham oversight of wayward judges; a statutory body prohibited “to challenge or call into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a Judge in relation to any legal proceedings.” Deciding to take a bribe, deciding to rule in favour of relatives and business partners, deciding to take 3 years to issue a decision, etc. You get the picture.
Ability to write a fictional record of history in the land of the flightless bird is merely a step for the anointed and unquestioned. Tellingly, in 2012, every judge in New Zealand formally told Parliament judges were already sufficiently accountable to each other. Not one dissenter. Frontman Justice John McGrath told the morons in Parliament who sought to force judges declare their financial interests, “Moreover the judicial process is a high visibility process: hearings are conducted in public and judges must give reasons for their decisions, which will be subject to appeal. These features of the judicial process impose an important discipline on judges and provide an effective protection against arbitrary or biased decisions.” George Orwell would be proud.
Not coincidentally, of course, Supreme Court judges – of which McGrath has long been one – are not required to give reasons, relying on Parliament’s own wording in the enabling legislation, “[supreme court] reasons may be stated briefly, and may be stated in general terms only.” “Only.” Most SC dismissals of leave are less than one page and any encroachment over one page is commonly because trees are more plentiful than judges, allowing few printed words over multiple pages.
Of greater note, two distinct judicial reviews currently on track allege the Supreme Court Registrar has issued a prohibition against public access to Supreme Court filings and is not publicly recording decisions of the Supreme Court which dispose of proceedings. No reasons and no public recording of court judgments would make Hosni Mubarak envious. Fortunately the military in Middle Earth is not as strong as in Egypt.
Back to the Honourable Joe Williams, who toiled over these past months concerning the Commissioner ruling in favour of his former business partner. Judges can rule in favour of their mates but there was no legal out for this reverse scenario. Moreover, it was Commissioner David Gascoigne himself who concluded Robert Dobson J was wrong to not disclose he and Gascoigne were former law partners after Dobson presided in a case in which Gascoigne was an opposing party.
The Judicial Review was against Commissioner Gascoigne declaring his admitted conflict with Dobson J did not need to be considered before dismissing a more serious charge against Dobson J issuing off-the-record orders without notice or hearing because Gascoigne felt anyone in his position would be statute-bound to dismiss the complaint against his former partner.
The Judicial Review argued this was a procedural impropriety, that the accepted conflict of interest needed to be determined as disqualifying before any dismissal of the complaint could be considered.
Interestingly, Williams J was only handed the file to dispose of because Denis Clifford J was forced off for judicial impropriety and his own relationship with Gascoigne after steadfastly claiming he had no disqualifying conflict. As NZ judges rarely concede to disqualifying conflicts – and, more pertinently, NZ lawyers can be counted on to sheepishly avoid raising them – Clifford J was boiling mad to be so disgraced.
What is a Joe to do?
Sometimes ‘honour’ is a virtue which rules must be broken and the truth twisted to protect. Okay, this is only in the New Zealand courts, but it seems to work. Joe could hardly argue with success.
In refusing to allow the Judicial Review as unwinnable, Judge Joe Williams proclaimed, “[the judicial review] argues that Dobson J failed to disclose his relationship with the Judicial Conduct Commissioner as former partners in the same law firm. He alleged the Judge thus had a conflict of interest which prevented him from involvement in Mr Siemer’s separate proceedings in Siemer v Judicial Conduct Commissioner (and the then Judges of the Supreme Court (CIV-2012-485-2419).” This was not accurate. The judicial review did not allege Dobson and Gascoigne had a conflict of interest. The Commissioner formally accepted as much and who would be in a better position to know? However, by focussing on the merits of the complaint to the JCC rather than the unlawfulness of the JCC complaint procedure which was at issue, Williams J stealthily dodged the real issue and evidence in a way which might bring a tear to his colleagues’ anxious eyes.
And the New Zealand legal sheep graze peacefully, never noticing when their mates are put on the truck to slaughter.