A win for Justice Wilson
September 29th, 2010 at 9:00 am by David FarrarColin Carruthers, on behalf of Justice Wilson, has had a partial victory with the judicial review of of the decision of the Judicial Conduct Commissioner’s recommendation that a Judicial Conduct Panel be established.
Dean Knight blogs on what it means:
First, it’s very much a technical decision about how the Commissioner should have framed and referred the complaints for consideration for the Panel. In a nut-shell, the Commissioner was wrong to refer the whole bundle of complaints. He should have formed a view on each and every complaint and specified with some particularity which conduct warranted inquiry by the Panel. As a consequence, some complaints which were trifling were wrongly added into the mix; the main complaint – while sufficient for further investigation – was not framed carefully enough when it was referred; and complaints about the judge’s conduct between the two Supreme Court decision were referred without an opinion being specifically reached on whether they justified further investigation for the Panel.
This seems fair and reasonable. It means that the JCC must be very specific with which actions of Justice Wilson are thought to have been misconduct, rather than just refer the entire saga.
Secondly, on the marquee complaint that the Commissioner relied on to recommend a Panel be convened, the High Court is clear that the Commissioner’s vetting process was proper and consistent with the Act. The Commissioner properly appreciated the standard of conduct that, as a matter of constitutional law, justified removal of a judge from office and justified further investigation. The Commissioner also properly applied this standard when reviewing the factual allegations made. The Court said (at [91]):
“The important point is that the Commissioner considered that deliberate non-disclosure was a sufficiently plausible possibility to warrant further inquiry being made. We agree with the Commissioner’s conclusion that conduct of that type, if established, might warrant consideration of the removal of the Judge. We also accept Mr Goddard’s submission that in reaching that view the Commissioner formed the opinion that s 15(1) required of him.”
Justice Wilson did not win on this point, but it is worth stressing that the finding is that deliberate non-disclosure was a sufficiently plausible possibility to warrant removal. That does not mean that the panel will necessarily find it is – just that it could be.
Finally, this decision is undoubtedly not going to halt the process.
Presumably the JCC will now frame more specific “complaints” for the panel to consider.
Related posts:
- More problems for Justice Wilson
- Justice Wilson
- More pressure on Justice Wilson
- Supreme Court Justice faces Judicial Conduct Panel
September 29th, 2010 at 9:08 am
So I guess this is something to do with judicial stuff
Vote:September 29th, 2010 at 9:12 am
Given that the whole thing is about allegedly injuducial conduct by a judicial officer in the course of judicial proceedings you may well be close to the mark.
Vote:September 29th, 2010 at 9:13 am
I presume the background is that the hearing into Justice Wilson’s removal needs to have the “specific matters” before it so Justice Wilson can address what he is being accused of. I think that is fair. Otherwise how fair would a criminal trial be if the accused knew he was being accused of a crime but no idea what crime. I do feel Justice Wilson would have been better to have said very little, he is not out of the woods yet whereas his public statements gave the impression he was.
Vote:September 29th, 2010 at 9:18 am
If it smells like shit……
Vote:September 29th, 2010 at 9:19 am
Of course if New Zealand had proper transparent vetting of judicial appointments, Wilson may never have been appointed a judge because of his financial indebtedness. He was made up to the Supreme Court by Cullen in very short order.
Back in the mid 90′s I worked in the Ministry of Justice at the time those two Judges in Auckland fiddled their traveling expenses when sitting in Northland (they would sit in a Northland Court and drive home to Auckland, but claim for having stayed overnight in Northland). One had the decency to resign and the other who was the mastermind of the fraud, fought on and on and got to remain a Judge (but only ever to hear ACC appeals).
Anyway after this episode the Ministry of Justice looked into bringing in the proper vetting of judicial appointments and the case for it was put up but the then (I think) Chief District Justice vetoed the proposal and it never went any further. His reason was that if a lawyer was vetted for judicial appointment but failed to be appointed, it would be a stain on his reputation and everyone (other lawyers) would know!
And that’s why we still have this “quiet tap on the shoulder” procedure for appointing judges today, notwithstanding claims that there is a supposed vetting process, but which we are not allowed to know how it operates.
Even third-world banana republics in Africa have open public vetting of judicial appointments. Why not New Zealand?
Vote:September 29th, 2010 at 10:05 am
This is a Clayton’s win – Justice Wilson was hoping to stop the appointment of the panel permanently. He hasn’t, and in light of the Court decision, he can’t. If he doesn’t appeal (and that looks unlikely) then he gets a brief reprive while the Commissioner reconsiders his recommendations. But the outcome won’t change – he will still recommend that a panel be appointed.
But I will be sruprised if the panel ultimately recommends his removal.
Vote:September 29th, 2010 at 10:17 am
Chris2,
I absolutely agree. Particularly when we endorse such a strong separation of powers – we need a mechanism to ensure that the people best able to exercise the roles are appointed. And also that their performance is monitored.
For the legislature we have elections to cover this. For the judiciary we have a situation where the controls are all held within the group which is also the catchment pool for the judges in the first place. I’m not actually suggesting that our judges should not be lawyers, but couldn’t it be argued that the current system is like handing the prison keys to the prisoners?
Vote:September 29th, 2010 at 10:37 am
bhudson – yes agree completely. Part of the problem is that the legal gene pool in NZ is so small that it can be hard to find a Judge to sit in judgment on another lawyer because they are known to them – they went to law school together, they worked in practice together, their kids went to the same school, etc.
In this Wilson case, the Attorney-General had to stand aside because he used to work with Wilson, and Sian Elias had to stand aside because she had shared business interests with Wilson. Indeed the Judicial Panel convened to hear the Wilson case itself had to draft in an Australian Judge!
Earlier this year when that retired North Shore Judge was charged with “keying” a car parked outside his apartment they had to bring a Judge all the way up from the bottom of the South island to hear the case, such was the difficulty in finding a Judge who did not already know him.
This why the Labour Government’s abolition of access to the Privy Council has been such a disaster. We used to have access to the most brilliant independent legal minds in the English speaking world, and it cost us nothing!! Remind me again, how much did it cost to build the Supreme Court in Lambton Quay…..?
Vote:September 29th, 2010 at 10:49 am
Another solution may well be a prohibition on the appointment of judicial officers who have significant investments involving Counsel likely to appear before them or a requirement that they divest themselves of such investments. An even more effective solution would be instilling a sense of proprietary in judicial officers so that they actually appreciate the injustice perceived by a litigant knowing that one of the judges determining the case is best mate, business partner and debtor of the opposition’s lawyer.
Vote:September 29th, 2010 at 10:54 am
Chis2
Vote:Significant:
Two people recognised conflicts and stood aside – quite rightly – and were adequatley replaced. One didn’t.
September 29th, 2010 at 10:57 am
Privy Council has been such a disaster. We used to have access to the most brilliant independent legal minds in the English speaking world, and it cost us nothing!!
Depends on who “us” is. Appealing to Privy Council wouldn’t have been cheap for those that did it.
Vote:September 29th, 2010 at 11:01 am
“got to remain a Judge (but only ever to hear ACC appeals)”
everybody gets rehabilitated sometime- I understand that he is back in the North Shore DC list court more regularly now.
EDIT: “Depends on who “us” is. Appealing to Privy Council wouldn’t have been cheap for those that did it.”
95 times out of 100 (if we ever sent that many to the PC) it was two private companies fighting it out, so the cost to the taxpayer was nil to extremely minimal. Occasionally we would send a judge over for a time, so that cost something.
Vote:September 29th, 2010 at 12:26 pm
Pete George misses the point totally. Again.
Vote:September 29th, 2010 at 2:29 pm
“deliberately failed to disclose” = Attempting to pervert the course of justice = jail
That, the HC says, is a possible view of the facts. If that finding is made, there will be criminal charges.
Vote:September 29th, 2010 at 4:55 pm
FACT
We are a little country at the bottom of the world with an incestuous legal and judical system whose prime purpose is to protect its members.
Need proof Read the emails between Ted Thomas et al that background this case.
There is no independence of mind with these people.
They regard the citizens as inferior beings who must bow to their superior knowledge and wisdom.
But like many things they provide enertainment and laughter all be it expensive for some of us who can see thur them
Vote:September 29th, 2010 at 6:42 pm
Ok bereal, what have been all the disastrous results of dropping the Privy Council appeal option?
And who funded all those appeals to the PC? Or don’t you get it?
Vote:September 29th, 2010 at 9:35 pm
lastmanstanding – a late night post to say thanks, you summed it it up in a nutshell.
Pete George – don’t quite follow your point, pleas clarify. But the cost alone of constructing a Supreme Court building (for how many members – 8?) was almost $50 million.
Vote:September 30th, 2010 at 7:18 am
Chris2 – lawyers, trips to London plus accommodation for legal teams – there was a cost to those who went to the Privy Council. It wasn’t free.
Vote:September 30th, 2010 at 12:01 pm
“Ok bereal, what have been all the disastrous results of dropping the Privy Council appeal option? ”
That mind-blowingly awful building in the middle of Wellington for a start! Not the Beehive this time, the other one.
“And who funded all those appeals to the PC? Or don’t you get it?”
Usually the commercial litigants, as very few criminal cases ever got to the PC.
Vote: