[second of a two part series]
We have witnessed New Zealand judges’ attempts to exercise jurisdiction they do not have give the
appearance New Zealand is a global backwater when it comes to the law but this is not occurring in a vacuum. The system by its design has fostered what accurately can be labelled a judicial oligarchy, replete with hallmark secrecy, insular appointments and virtually non-existent democratic or legal checks.
The first question many ask is how can this be happening when the public do not see it and the press are not reporting it? Simply stated; 1. Concentration of power, 2. Court secrecy and 3. Retribution against those who threaten this status quo.
The local press are terrified of printing stories critical of judges particularly where they may be seen as potentially compromising fair trial rights or second guessing a judge’s decision – in a system where many court cases of public interest are also subject to suppression orders often hidden like land mines in the court files. Every media outlet has Kiwi lawyers who vet potential stories for judge sensitivities on the parochial theory judges are not allowed to defend themselves publicly and therefore need protection against criticism, particularly where it is believed their personal reputations must be kept elevated to maintain public confidence in the courts themselves. Whereas these media lawyers have always been under threat of personal punishment and their employers fined if critical stories get through, Chris Finlayson’s Administration of Justice Bill will criminalise all criticism of judges perceived to undermine their judicial and private positions.
Critical to maintaining the status quo at the coal face, Judges in New Zealand are appointed by one unelected politician through an arcane process. This is the Attorney-General and for more than a decade prior to David Parker’s recent appointment Michael Cullen (not a lawyer) and Chris Finlayson filled the position. All are List MPs, not voted in.
The powerful Rules Committee comprised of judges and sycophantic lawyers have long recognised people must be convinced judicial processes have innate checks and are transparent in order to maintain confidence. Because New Zealand lacks the distilling discipline of an independent bar, the checks and transparency need not be real. One notably example is the creation of the Office of the Judicial Conduct Commissioner to investigate complaints against judges, an enactment which was gutted by the judicial lobby prior to passage. In its thirteen years of existence the Commissioner has referred only one complaint (out of 4,000 received) to the Attorney-General for a panel investigation and that referral was reversed by a High Court ruling (2010, Justice Bill Wilson). In a 2013 judicial review of the Commissioner, current Court of Appeal President Stephen Kos went further in neutering the office, ruling “the Commissioner’s statutory jurisdiction is a limited one. The Commissioner does not make “merit determinations on judicial misconduct”, as the plaintiff was wont to suggest. Rather, as (the Crown) put it, he operates as a clearing house for complaints.” Noted human rights lawyer Dr Tony Ellis speaks for a majority of lawyers in finding the making of judicial complaints to the OJCC “is a waste of time.” The result is the Commissioner now brags the quality of the New Zealand judiciary has improved and points to the drop in number of complaints he receives as the touchstone.
And on judge selection the official policy is for the Attorney-General to privately consult with the Chief Justice on appointments and the Governor General must approve them, giving the appearance one man is not arbitrarily selecting all our nation’s judges. However, the former only furthers the incestuousness of the judiciary and the latter is purely a perfunctory validation which has never been withheld. The fact is there is no public vetting of judicial appointees before or after selection.
This situation has left New Zealand with a judiciary where multiple spouses and family members determine the island citizens’ fate. In these circumstances it would be surprising if the country’s judges did not think alike and put each others interests ahead of the laws we cherish as a society.
The inbred judicial confines formed the backdrop in a recent kiwisfirst story. An Auckland father fronted to criminal charges he verbally intimidated and pushed, respectively, two Auckland family court judges. Presiding Judge Peter Rollo came up from Tauranga with bold fanfare as an independent judge who did not know either judge personally. It surfaced after the first day of the judge alone trial that Judge Rollo’s wife (pictured together with her husband) recently retired after a long tenure as a family court judge.
Meanwhile lawyers are increasingly targeted for exposing judicial corruption, or simply for challenging New Zealand judges’ sense of entitlement. Though rarely reported, judges in New Zealand are often unguarded when seeking to punish counsel for bringing up their conflicts or criticising any one of their clan. Several years ago Court of Appeal Justice Tony Randerson, who retired last year, made a complaint to the Law Society against barrister Frank Deliu because Deliu lodged a complaint against Justice Rhys Harrison with the Judicial Conduct Commissioner. Randerson J alleged the making of a complaint through this official body set up by Parliament to receive such complaints demonstrated Dr Deliu’s unfitness as a lawyer. The public became aware of this all too common retribution only because Deliu pressed the issue, first by making a misconduct complaint against Randerson for interfering with a statutory process which did not concern the judge.
Long before that episode now-retired Justice Hugh Williams told his mistress he would deal harshly to counsel in a high profile civil case for raising his conflict of interest. Williams’ vengeance was borne of his own angst in being forced, as he saw it, to deny he knew the other party when in fact the woman defendant was maid of honour at this wedding. Williams around the same time was judge in the lawsuit between former heavyweight boxer David Tua and his manager. Williams’ personal vendetta against Tua’s counsel Dr Tony Molloy QC eventually eclipsed his judicial finding that withholding the boxer’s prize-fight purse was in the “overall interests of justice”. Williams was forced to disqualify himself after he told colleagues he was “having too much fun” effectively thwarting justice in the case.
Talking about retired judges is always safer than talking about current judges in New Zealand but even this may land someone in prison once current list MP Chris Finlayson’s member’s bill gets passed into law.
Earlier this year two Auckland barristers were charged by Police with attempting to pervert the course of justice. Police allege the lawyers had instructed a witness to not talk to police and, after a raid on their law chambers, police broadened the allegations to overbilling of clients and possibly selling jobs to immigrants in exchange for residency (although neither is clear from the Police charging documents). It eventuated the witness in question faced criminal charges she has since pleaded guilty to and the “witness tampering” was her lawyer advising her to not talk to police. The police response was to offer her diversion if she would provide evidence – any evidence – against her now former lawyer and his law firm. The woman, a suspended lawyer, has sworn an affidavit saying she never wanted legal representation and always wanted to cooperate with police.
The police disclosure indicates an ulterior motive in the prosecution. It includes little evidence to support perverting the course of justice charge but does include seized chambers emails wherein the accused shared stories with staff about the incompetency of New Zealand judges, job pressures, and media examples of inequities in a legal system where immigrants are blamed for corruption (one example was the 2016 Scoop news story “Immigrants’ attitudes to corruption worry SFO” which tells of one case where a Chinese man was investigated by the Serious Fraud Office over an alleged attempt to bribe a Council inspector $1,000, in marked contrast to its statutory mandate that fraud must be complex, affect multiple victims and exceed $2 million).
Lawyers who do not placate judges’ whims are lately being targeted by Legal Aid Services. While the limit on legal aid reimbursement is around $159 per hour, the Crown hires private practice lawyers at considerably higher rates to audit the legal aid lawyers. These auditors appear to be rewarded with further briefs depending upon how well they keep the legal sheep in line. A prime example is Hastings barrister Eric Forster who has risen to some prominence as a legal aid auditor despite a failing personal practice and complaints by other lawyers. Mr Forster opined in a recent audit that he downgraded one practitioner’s performance from “very good” to “poor” in a case because the practitioner’s submissions were “bold” in seeking a judge’s disqualification and criticising the lack of reasoning by the lower court judges in an appeal to the Court of Appeal. Forster stated rhetorically, “Would the arguments made have been better made if argued more sensitively (to the judges’ feelings)”, before adding “Without the high level of expertise aspect of the file (I) would have rated very poor.” Punctuating his obsequious manner and cluelessness which have become his calling card, Mr Forster concluded on the other four files included in his audit “The analysis of the law was particularly strong – at or near the top end. The provider generally communicated well with the court users. The impression was the provider established a good rapport with clients and enjoyed the confidence of his clients.” before paradoxically concluding this provider’s “client correspondence” was subpar.
It is this view of legal representation which is gaining steam in New Zealand. All this at a time when the New Zealand Law Society and lawyers are screaming about the explosion of self-represented litigants and the harm self-representation allegedly brings upon the ability of the courts to dispense justice.
footnote: Siemer v Attorney-General was one of the files audited by Eric Forster (which is how the audit became available). An Official Information Act request by kiwisfirst as to how much Mr Forster has been paid was not replied to at time of publication.
