It is often very difficult to look behind the Supreme Court judgments coming out of New Zealand. If no one looks closely at the relevant court submissions, the only parties likely to be privy to the Supreme Court distortions are the involved lawyers – and they are prevented from exposing judicial distortions due to a perverse ethical bond to not criticise the court.
The judges know this, which explains many of the liberties they often take in the judgments. Their “humpty-dumptyisms” surface later, if at all. Sadly, there is no independent bar in New Zealand to justly call them out for such perversions of fact and law when they occur. This helps explain why some kiwisfirst reporting on the New Zealand Supreme Court comes much after the fact. The appeal of Colman v Police is one such case.
The appeal concerned Northland resident John Colman’s appeal against conviction for using insulting language in calling some religious buskers who would not get off his property “c***s”. One problem was Colman had been charged with disorderly conduct. His conviction for foul language was a breach of natural justice and due process.
There was no dispute of the fundamental process failure before the Supreme Court.
The Supreme Court keenly realised that the District Court, High Court and Court of Appeal nonetheless ignored fundamental precepts in law. This most likely explained its own covering up of the abysmal legal failures of the lower courts. Its dismissal of an appeal application stated that while “On his appeal to the High Court, Allan J held the charge had been made out” this was not an adverse ruling against Mr Colman because he was then discharged without conviction. According to the Supreme Court, this gave it legal licence under s144 of the Summary Proceedings Act to not entertain Colman’s appeal.
It is hard to imagine any court, let alone New Zealand’s highest court, stating a High Court determination that a criminal conviction had been made out and that party charged $226 costs is not an adverse determination. But it was the Supreme Court’s fudging of the elementary legal failures by the High Court which would bring disgust to every right-thinking lawyer who ventured a look behind Humpty Dumpty’s protestations to learn the facts. Two grounds of the appeal come to mind, and the Supreme Court failed in its duty to properly particularise them even if it found a legal technicality to dismiss them.
First there is the issue of High Court Justice Christopher Allan “quashing” the conviction before “discharging” Colman. This was a fundamental failure in law as the judge had no power to discharge once he declared the conviction quashed (para. 109 of Allan’s judgment).
Second, there is the fundamental failure of being convicted of a charge without notice and then retried after that conviction was set aside. Of course, the George Gwaze murder trial-go-round (Gwaze was recently retried by the Crown after being acquitted by a jury) proves double jeopardy protections do not apply in New Zealand. Nonetheless, the New Zealand public have a right to know how widespread and deeply ingrained the Courts’ disregard is for due process rights which are sacrosanct around the rest of the world, and it is the minimal duty of the New Zealand Supreme Court to accurately state the legal challenges put before it. The problem for the rule of law in New Zealand is there exists no judicial accountability and no one is demanding this be done.