Sly Spin and Two Smoking Suppression Orders

To say it was an embarrassment to NZ officials when the media reported convicted murderer Phillip John Smith boarded a flight to Chile last year on a temporary release would be an understatement. Recriminations abounded well after Smith was deported back to New Zealand in November 2014.Gendall_assleepin

After Smith’s departure was discovered, High Court Justice and Parole Board head honcho Warwick Gendall (right in picture) declared Smith “escaped”.  Ministers voiced similar and District Judge Cameron sentenced Smith’s “accomplice” before the dust settled.

Smith has yet to face a trial for his actions but the secrecy which envelopes his pending trial is uniquely New Zealand.  Prison officials have already declared they intend to keep Smith on a short leash for the next ‘20 years’.  Judges must now provide the spin that provides the best cover for Gendall and Co.  In the wake of secret judgments by High Court Judge Graham Lang (left in picture) in June and Judge Geoffrey Venning in July, it appears this will occur in a back corridor of a District Court somewhere in the Auckland supercity.

Phillip Smith was given a minimum sentence of 13 years in 1996 for murder.  He was part of a reintegration programme in 2014 for prisoners facing likely parole.  It was during this period that he obtained a passport in his birth name Phillip Traynor.  He fancied Brazil; until a local woman identified the bandido at a hostel.  He was swiftly handed back to New Zealand.

The accused’s lawyer asserted the government’s comments and subsequent court-imposed secrecy threaten fair trial rights.  His two applications seeking transfer of the case to the High Court on this ground and alleged complexity of the trial issues have been rebuffed in the wink and nod secrecy New Zealanders have come to expect from the Courts.  Crown prosecution did not oppose the applications.

In 2011, Parliament passed the Criminal Procedures Act in response to bloggers publishing a scintilla of the secret court judgments which flow every day in New Zealand like mountain water in springtime.  This legislation ratcheted up the penalties to a $25,000 fine and six months in prison to those transparency fanatics who took to heart the embossment on New Zealand’s Court of Appeal building, “Justice must not only be done but must manifestly and undoubtedly be seen to be done”.

Fearing perhaps a blogger could end up in prison for reporting any NZ court business, Parliament made it harder for judges to issue suppression orders.  While it might sound rudimentary to the rest of the world, NZ judges were finally compelled under s207 of the Act to give reasons for their orders of suppression.

None of this has mattered.  The Smith case alone has two High Court orders of suppression in the last two months.  One is wholly unreasoned and made on the judge’s own initiative; the other vaguely relies upon suppression being customary in New Zealand until final resolution of trials.

In opposition to proposed legislation in 2003 and in 2012 which would make judges somewhat accountable, the Judiciary of New Zealand made formal submissions to Parliament claiming “the requirement now hardening into a rule of law, that judges give reasons for decisions of any moment. The openness of the judicial process reduces the prospect of misconduct and of it going unremarked and unchecked. “Sunshine is the best disinfectant.””

The evident hypocrisy of this representation to Parliament is underscored by the submission claim that every judge in New Zealand supported it.

It is indeed the providers of this sunshine in the absence of judges who falsely claim they do who face prison in New Zealand, as this Editor did in 2013 for reporting Judge Helen Winkelmann ordered her denial of a jury trial to the “Urewera 18” suppressed, without giving any reasons.

It is unfortunately the training of New Zealand’s parochial law schools to hallow any judicial decision.  When judges violate certain legislation such as the Criminal Procedures Act or Public Records Act, the default position is always the judges must have good (unexpressed) reasons for breaking the few laws that expressly bind them.  It is always the foreign trained lawyers, if any, who foolishly voice the alarm at such judicial indiscretions.  ‘Foolishly’ because it is a career killer to expose a lawless judge in New Zealand.

It is routine for NZ lawyers to cover up judges issuing unreasoned suppression orders.  Smith’s lawyer is apparently not one of them.  When he challenged Lang J’s unreasoned and unsought order suppressing Smith’s application to have his prosecution heard in the High Court, Venning J stepped in to suggest he would uphold the unreasoned suppression order in a secret ‘Minute’, then suppressed his own judgment which referred to the Minute!   Venning J reasoned contrarily in the secret Minute hidden by the secret Judgment, “It does seem somewhat curious that Mr Smith, whose application for transfer to this Court is largely based on pre-trial comments made about him… would want to lift the suppression of a judgment which discusses the issues Mr Smith complains about”.  According to this perverse judicial logic, few would file claims in New Zealand, and no one would file a defamation claim.

Judge Lang’s earlier suppression order less effectively straddled the legislation he was breaking.  Unlike Venning who purported to dismiss the defendant’s request for transparency for his own good, Lang gave no clue – after undermining any unexpressed reasons for a suppression order; “I accept that some aspects of the events that led to the charges being laid raise issues of public concern. These include Mr Smith’s ability whilst on short term release from prison to obtain a passport in a false name and then subsequently use it to leave New Zealand. I do not consider, however that those issues justify the case being tried in the High. Court, particularly given the fact that they are currently being investigated in another forum.”

An equally secret forum, no doubt.

With public concern in a court proceeding being recognised by two separate judges who still issued unreasoned suppression orders, one has to wonder whether there is any legislation NZ judges will respect.

Is it fair to say that judges in New Zealand are not independent but, rather, the herd of sheep suggested by their 100% agreement to oppose proposed legislation?   It was the judges themselves who claimed every one of them opposed the Judicial Matters Bill in 2003 and the Register of Pecuniary Interest of Judges Bill in 2012.  The apocalypse will come before you get similar unanimity in Parliament.