Justice Wilson’s Judicial Conduct Panel
May 10th, 2010 at 10:00 am by David FarrarHave just read the full 31 page report of the Judicial Conduct Commissioner into Justice Wilson.
Two parts I found very interesting. The first is the observation that:
Turning to a consideration of Justice Wilson’s conduct in relation to the hearing of the Saxmere case in the Court of Appeal, I make this point: if the only subject of the complaints made about Justice Wilson’s conduct was his acts and omissions prior to and during the Court of Appeal hearing, then it would have been open to me to conclude that the matter should be dealt with by a reference to the Head of Bench (under section 17 of the Act) rather than by a recommendation that a Judicial Conduct Panel should be appointed (under section 18).
The comment reminds me a bit of Watergate. It was not the original offence that caused so much trouble – it was the cover up. Now by this I don’t mean to suggest Justice Wilson has done a cover up. But that it was his responses to the Supreme Court’s questions that have resulted in the recommendation of a JCP, rather than his handling of the original case.
A lot of publicity has been given to the letter from former Justice Ted Thomas. It is appropriate to point out that the JCC finds that in many cases he has facts wrong or over-egged it – he was relying on second and third hand info:
Mr Farmer has said to me that he does not accept the validity of much of what Sir Edmund presents as factual material. He says that Sir Edmund has drawn inferences and applied value judgments to what he had been told which were not warranted.
Now the recommendation was that a JCP be established, to go beyond the initial inquiry. So what does this mean. Let’s look at the Act.
The panel must have three members. One is a lay member. One must be a Judge or Retired Judge. And the third must be a Judge, a Retired Judge or a lawyer who has been practising law for at least seven years. The panel will be chaired by a retired judge or the most senior current Judge.
Also the Attorney-General must appoint a special counsel who will effectively act as a prosecutor as details in s28(2):
At the hearing, the special counsel must present the allegations about the conduct of the Judge concerned, and may make submissions on questions of procedure or applicable law that are raised during the proceedings.
And very importantly in s29(1):
Every hearing of a Judicial Conduct Panel must be held in public
There is a provision for parts to be held in private if there is a very good reason, but it is almost unthinkable that panel would meet in private.
The Panel also has the powers of a full Commission of Inquiry to compel witnesses to testify, and demand evidence.
I can’t imagine that Justice Wilson will want to go through what is effectively a public trial, and expect his conversation with the Chief Justice will lead to his resignation.
If it does not, it will be fascinating to see who is appointed to the panel, and to report on it.
Related posts:
- Justice Wilson’s Judicial Conduct Panel
- Supreme Court Justice faces Judicial Conduct Panel
- Judicial Conduct Panel Proceedings
- More problems for Justice Wilson
May 10th, 2010 at 10:31 am
“But that it was his responses to the Supreme Court’s questions that have resulted in the recommendation of a JCP, rather than his handling of the original case”
That’s not what it says. The statement is that “it would have been open” to refer to the head of bench. The report doesn’t answer the question whether that would have been the outcome, because the later obfuscations make it impossible to even contemplate that course of action.
Frankly, it is almost impossible that Wilson J wouldn’t resign. Personally I’d like to listen in on his conversation with the Chief Justice this week. Wonder whether she could be compelled to give evidence on that discussion if it comes to a JCP.
Vote:May 10th, 2010 at 11:23 am
If a panel is appointed, I think you will find one of the judicial appointments will be an Australian Judge.
The problem with the New Zealand judiciary is that there is only one degree of separation between all of them, so it makes it very difficult to find any Judge in this country to sit in judgment on a fellow judge.
We never had this problem when we had recourse to the Privy Council.
Vote:May 10th, 2010 at 12:10 pm
The best commentaries I have read on this matter have been by Andrew Geddis on, dare I say it, Pundit.
He was the first to draw out, I think, that Sir Edmund Thomas (whom The Dominion Post, the NZ Herald, and someone on TV called ‘one of this country’s foremost judges/legal minds/jurists etc etc etc …’ to bolster their reporting) had laid his complaint to Sir David Gascoigne based on hearsay.
I don’t know any of the parties, so I have no interest, but I don’t like mob ‘justice’, either. Some of the reporting and editorialising, particularly by The Dominion Post, seems to be getting ahead of the process. It ain’t The Dompost’s job to decide Wilson J’s guilt or otherwise (read last Saturday’s leader). And its reporting of some Marlborough farmer’s gossip about what Chris Finlayson might or might not have said wasn’t helpful, either.
If a judicial conduct panel is set up, it will investigate the FACTS of the matter. If the FACTS establish that Justice Wilson’s conduct warrants further action then so be it. At least it has been by the process, as it should be, and not by he said/he said, no he didn’t/yes he did, and so on and so on and so on.
Vote:May 10th, 2010 at 12:53 pm
Sir David was rather dismissive of Sir Edmunds complaint.
Vote:Still I do forsee a judicial retirement in the offing as Justice Wilson will not want this complaint going before a JCP.
May 10th, 2010 at 1:00 pm
Beg to differ Tripe. It is frankly irrelevant whether Sir Ted based his complaint on hearsay. His issue is not with establishing the precise details of the matter, but with the integrity of the court system. Based on what he heard/observed, he was sufficiently motivated to add his two cents to the issue, which must have been a very difficult decision. There is no rule anywhere that says one cannot make a complaint based on indirect information. The value of the information he put forward will be established by the JCP if it ever comes to that.
Vote:When it comes to judicial bias, the keyword is APPARENT. In the end it does not matter at all what the precise facts are and whether these establish any guilt or fault, the question is that a very strong impression of impropriety emerged. The judicial system cannot afford that, and must always operate on a level of integrity that is well above what would be considered adequate for the rest of us. If it cannot sustain that, we might just as well declare ourselves formally to be a banana republic.
May 10th, 2010 at 1:04 pm
If a judicial conduct panel is set up, it will investigate the FACTS of the matter. If the FACTS establish that Justice Wilson’s conduct warrants further action then so be it. At least it has been by the process, as it should be, and not by he said/he said, no he didn’t/yes he did, and so on and so on and so on.
The problem with that is.. the papers are not interested in the facts… they want the he said/she said it sells the newspapers…and the mob themselves have no trust in the new NZ legal process and want its weaknesses exposed.. preferring instead to have a truely inderpendent judicial recourse system put back in place.
NZers were never asked if they wanted to do away with the Privy Council in the first place.
Vote:May 10th, 2010 at 3:11 pm
Lets not forget the officers of the court who knew of the indebtedness but said nothing nor did anything to protect the court and the system.
Especially serious is the conduct of QC Galbraith who in allowing the Judge such a large sum of indebtedness towards himself which he was chasing the judge for repayment.
Clearly entered the court in a position of potential compromise of the sitting Judge to himself.
Nothing was said by him to the Plaintiffs QC’s and none to the court registrar so he had no intention of protecting the integrity of the court.
Come on please explain why his behaviour is being over looked?
Vote:May 10th, 2010 at 4:07 pm
Justice Wilson is reason 2497 why we should have never dumped the Privy Council and replaced it with a Supreme Court.
As we now see we dont have the depth of talent or even the depth of morals and ethics to warrant a Supreme Court.
Time to go cap in hand and ask the Judical Committee to please again become our final Court.
Vote:May 10th, 2010 at 4:13 pm
Oh And this case also underlines the hopeless lack of understanding of a conflict of interest .
Time and again we see cases where the parties totally ignore that they are conflicted and push on regardless.
The bottom line is NZ is immature in its understanding of the principles of good governance and as the Wilson case shows it starts at the very top and keeps on keeping on all down the line.
Vote:May 10th, 2010 at 5:13 pm
Lastman – you are forgetting how redudant and inaccessible HM’s Privy Council was to most New Zealanders. The PC had essentially put itself out of a job when it was sending cases back to our Court of Appeal as it felt it was not in touch with NZ society to have final say over its law. Why would we want to retain a body with that view?!
Vote:May 10th, 2010 at 6:24 pm
“Especially serious is the conduct of QC Galbraith who in allowing the Judge such a large sum of indebtedness towards himself which he was chasing the judge for repayment. Clearly entered the court in a position of potential compromise of the sitting Judge to himself.”
That’s unreasonable. Galbraith is reported to have had the loan in Wilson’s favour for some time, before Wilson was even appointed to the Supreme Court. What had he done wrong other than lend a then-colleague some money? If the loan was overdue, Galbraith can’t be blamed for pressing for payment in the normal course of events. You’re not suggesting that Galbraith was attempting to blackmail Wilson over the indebtedness, I trust. If you’re not, then Galbraith’s role in any alleged or potential conflict of interest would have to be an incidental one to which no blame could be attached.
Vote:May 11th, 2010 at 12:23 am
calender girl
I don’t agree.
As I said before as an officer of the court he knew that there could be a sense of impropriety and failed to disclose a potential conflict.
His pressing for payment has been reported as being during the trial which makes that position even more untenable.
Then with the sum involved he had an obligation as an officer of the court to inform both the opposing council and the registrar, if the judge didn’t recuse himself.
He also had an obligation to his clients too, as even he could see that the plaintiffs team could use it later should they find out about it.
What is so hard about this that you don’t see this?
Professor Anthony Kronman the former Dean of Yale Law school identifies four characteristics that identify the practice of law as a profession.
Vote:The first is that “the law is a public calling which entails a duty to serve the good of the community as a whole, and not just one’s own good or that of one’s clients”.
He reasons that unlike the butcher , baker or brewer, it is part of a lawyer’s job to be directly concerned with the public good – with the integrity of the legal system and the fairness of it’s rules and their administration.
With these I would include the rule of law and the independence of the judiciary. We capture this responsibility in our legal system by recognising that lawyers are “officers of the court”: in so doing, we recognise that their responsibility extends beyond their responsibility to their clients, or their partners, to the courts and the administration of justice itself.
from a talk given by Justice Kate Oregan in Johannesburg 10th sept 2008/.
May 11th, 2010 at 9:22 am
MikeNZ: “What is so hard about this that you don’t see this?” Sorry I’m so dumb. If you want to debate the issue sensibly, please don’t insist condescendingly that everybody must see the issue your way. While you simply ignore my implied question about whether you considered Galbraith was attempting to blackmail Wilson over the indebtedness – a central issue, I believe.
As an example of one small reason why I disagree with your restrictive analysis, you say: “Then with the sum involved he had an obligation as an officer of the court …” So you are suggesting that the amount of the loan is a critical factor. Where is your personal cut-off point on that? $200,000? $100,000? $50,000? $10? Whatever it is, I’ll assume that your perspective of monetary significance or materiality is rather different from that of a high-earning senior QC.
Thanks for the quote on professional responsibilities. Despite its foreign jurisdiction origins, it captures the NZ spirit and responsibilities reasonably well for me. But it doesn’t invalidate the points that I made previously.
Vote: