Justice Wilson resigns

October 21st, 2010 at 10:25 pm by David Farrar

Acting Attorney-General Judith Collins announced:

Acting Attorney-General Judith Collins announced that Justice Wilson today resigned as a judge of the Supreme Court.

This is a good outcome. Personally I’m slightly disappointed that I won’t get to observe and report on a judicial conduct panel, as what is effectively an impeachment trial of a supreme court justice would be a once in a lifetime event.

But the judiciary is spared the spectacle of what would have been a very messy public (effectively) trial, and a very costly one.

The terms on which the Judge has resigned are:

  • His existing entitlements, which include untaken sabbatical leave and retiring leave. The exact amount has not yet been calculated.
  • One year’s salary, of $410,000, which will be taxable.
  • The Crown will pay Justice Wilson’s solicitor-client costs which to date have been calculated at $475,000.

The costs of Justice Wilson must be paid by the Government, by statute – s27(1) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 states:

The Judge’s reasonable costs of representation in respect of the inquiry must be met by the office of the Commissioner.

So that is the law as passed by the last Labour Government.

The one year’s salary will grate with a few people, but the reality is that it saves the taxpayer a lot of money. You see if Justice Wilson did not resign, he would remain getting his salary on full pay – plus all his further legal expenses would also be a debt to the taxpayer. The real loser in this deal is probably Colin Carruthers QC, who has ably represented Justice Wilson!

The High Court said that the JCC had to reconsider whether to recommend a JCP for Justice Wilson. Then after that the Government would have to appoint one all over again. Then there would be scheduling of it, and preliminary arguments, and then effectively the trial itself. Plus the possibility Justice Wilson may seek more judicial reviews.

And finally the JCP would have to come to a decision make a recommendation to Parliament, and Parliament decide whether to remove him.

I think it is impossible that this could occur within six months. It could indeed stretch out to a year.

So during those 6 – 12 months Justice Wilson would be receiving his full salary anyway.

On top of that we would be paying for his legal costs. If he has spent $475,000 so far – before it even gets to trial, I would be surprised if his costs would not come to at least that much again.

Also add on that the JCC was assisted by a former Australian Chief Justice – his costs would be considerable.

The Counsel assisting the JCP was to be a former Australian state solicitor-general – his costs would be in the hundreds of thousands.

And then add on the costs of Crown Law and the Ministry of Justice.

This is a ballpark guestimate, but I would say that if no deal was done to have Justice Wilson resign, then he would have still ended up with close to a year’s salary and the legal costs to the taxpayer would be quite easily a further million dollars or more on top of that.

So I have no problems at all with the agreement negotiated.

And while my sympathy for Justice Wilson is limited as he largely has his own intransigence to blame, it is worth noting he is barred for life from ever appearing in court again as a lawyer. He was formerly a top civil litigator, so his ability to earn money in future is seriously diminished.

It is a sad end to what was a highly regarded career as a lawyer and potentially as a Judge. His lack of full disclosure as a Court of Appeal Judge was IMO not a hanging offence. But his grudging co-operation with his own colleagues on the Supreme Court was what did him in. He embarrassed them, and he he substituted his own opinion as to what he thinks they need to know, for letting them decide that for themselves.

A win for Justice Wilson

September 29th, 2010 at 9:00 am by David Farrar

Colin 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.

Justice Wilson’s Judicial Conduct Panel

May 31st, 2010 at 1:00 pm by David Farrar

I thought that Justice Wilson would resign rather than go through the indignity of what is effectively a public impeachment trial via a judicial conduct panel, but he has chosen not to do so, hence Judith Collins has announced the composition of the panel.

I hasten to add that Justice Wilson obviously strongly believes he has not done anything wrong, or any errors in conduct made by him are relatively minor and do not undermine his ability to continue on the Supreme Court. He has every right to stand by his beliefs, and to have these tested through the process. And if the panel does not recommend his dismissal, he should be able to move on and continue on the Supreme Court.

I should praise the last Labour Government for passing the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. Before that act was passed, the Attorney-General could follow pretty much any process they wanted to determine whether to recommend dismissal. This is a fair and transparent process.

The panel appointed by Judith Collins is:

  • Justice Tony Randerson, previously the Chief High Court Judge and now a Judge of the Court of Appeal
  • Justice Helen Winkelmann, the Chief High Court Judge
  • Beverley Wakem, the Chief Ombudsman

No one can dispute the suitability of this panel. A former and current chief of the High Court, plus the country’s chief ombudsman as the lay member. They are the two most senior judges who have not been direct judicial colleagues.

Justice Randerson will be the chair of the panel, as he is the senior judge.

From a public point of view, it will be a fascinating process to witness what will effectively be a public impeachment trial of a Judge of our highest court. This is a once in a life time experience.

The next step is for Judith Collins to appoint a special counsel to present the case against Justice Wilson. He can also appoint a lawyer (or represent himself), and other people can apply to be represented also. I suspect Mr Galbraith will avail himself of that right.

The Ministry of Justice will announce in due course the date of the hearing, and the venue.

UPDATE: This is incredible. Justice Wilson is seeking a judicial review of the findings of the Judicial Conduct Commissioner, and a possible injunction against the Judicial Conduct Panel.

This is a high risk strategy by Justice Wilson. His fellow Judges will be squirming with discomfort I suspect.

Justice Wilson’s Judicial Conduct Panel

May 10th, 2010 at 10:00 am by David Farrar

Have 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.

More problems for Justice Wilson

April 13th, 2010 at 11:00 am by David Farrar

Phil Kitchin writes:

A supreme court judge under investigation for not fully declaring a conflict of interest has been accused by another judge of making up a story to avoid disclosing his true financial debt to a top lawyer.

The accusation against Justice Bill Wilson, who sits in New Zealand’s highest court, was made by distinguished retired judge Sir Edmund “Ted” Thomas in a complaint to the Judicial Conduct Commissioner, Sir David Gascoigne.

Sir Edmund claimed Justice Wilson made up a “fictitious” story which Sir Edmund believed indicated Justice Wilson wanted to continue to withhold his true financial position from the Supreme Court.

Justice Wilson is at the centre of a mounting controversy about his repeated failures to fully disclose that he owed $242,000 to Alan Galbraith, QC, when he sat on Court of Appeal cases involving Mr Galbraith.

A point worth making is that the debt itself does not necessarily mean Justice Wilson was biased, or even should not have heard the case. The issue is that the debt should have been disclosed so Saxmere could decide whether or not they wanted another Judge.

Justice Wilson has in fact ruled both for and against Mr Galbraith’s clients in various recent cases. I don’t think he was biased. However as with Nixon, it is often the “cover up” rather than the original offence that does you in.

The growers later went to the Supreme Court alleging apparent bias against Justice Wilson. The court dismissed the growers’ complaint but at paragraph 25 of the judgment, Justice Blanchard effectively said the case might have turned out differently had there been evidence of Justice Wilson being beholden to Mr Galbraith by owing him money.

“However, the materials placed before the court reveal nothing of the kind. There is nothing to indicate any indebtedness,” Justice Blanchard said.

Sir Edmund’s complaint alleged Mr Galbraith said he phoned Justice Wilson after the hearing and was “astonished” to hear Justice Wilson say he was vindicated.

Sir Edmund claimed Justice Blanchard’s comments caused “considerable consternation” and Justice Wilson also told Mr Galbraith he had approached Justice Blanchard about paragraph 25 and was told the comments were only intended to apply to “on demand” debts.

“This advice was met with disbelief,” Sir Edmund’s complaint alleged.

“This story is fictitious. No such conversation with Justice Blanchard took place,” Sir Edmund told Sir David. He considered it “highly improbable” that Mr Galbraith would make such a story up.

Now this is only one side of the story, and the Judicial Conduct Commissioner should complete his work. I think calls for resignation are premature, and should not be based on newspaper stories.

However if the allegations, as reported, are correct they pose a severe challenge to Justice Wilson’s ability to continue. There is a considerable difference between an accidental non disclosure, and a deliberate one.

If the Judicial Conduct Commissioner finds that “an inquiry into the alleged conduct is necessary or justified” and “if established, the conduct may warrant consideration of removal of the Judge”, then a Judicial Conduct Panel will be established.

Any such panel will have three members – two judicial/legal and one lay. Its hearings will be in public, and will not be a lot different from a public trial. It is hard to imagine a Judge would go through such a public process, rather than resign if a panel is formed.

If the panel recommends dismissal, then the decision goes to the Attorney-General. He can not decide to dismiss, if the panel does not recommend it, but he can decide not to dismiss, if they do so recommend.

If the AG did decide to support dismissal, it would require a motion in Parliament asking to the Governor-General to do so.

Justice Wilson

December 2nd, 2009 at 3:40 pm by David Farrar

The Attorney-General has announced:

Attorney-General Christopher Finlayson said he had confirmed today that the Judicial Conduct Commissioner has received a complaint relating to Justice  Wilson’s failure to recuse himself from a Court of Appeal case despite the nature and extent of his financial relationship with counsel in the case. …

“The matter is now with the Judicial Conduct Commissioner,” Mr Finlayson said. “The law requires that the Commissioner makes a preliminary examination, during which he may make any enquiries and look at any relevant court documents.”

“At the end of the preliminary examination, the Commissioner must either dismiss the complaint, or refer the complaint to the Chief Justice, or recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire into any matter concerning the conduct of the Judge.”

This is no minor thing, as Justice Wilson sits on the Supreme Court.

The Press editorial also touches on him:

The Supreme Court’s decision last week to recall a decision it made earlier this year, and direct a new hearing of an important case because of concerns about the risk of the appearance of bias by one of its own judges, is unprecedented in New Zealand.

Which does show the system works.

It not only raises doubts about the judgment of the judge involved but it also re-ignites debate made at the time the Supreme Court was established about whether, with judges drawn entirely from New Zealand’s small legal talent pool, such problems are unavoidable. There is little question that, at the least, the episode is a serious embarrassment for the Supreme Court. …

At the time, the judge was a new appointee on the Court of Appeal. He was soon afterwards elevated to the Supreme Court, after an extremely short time on the Appeal Court and ahead of other more experienced and more intellectually distinguished Appeal Court judges. This lapse inevitably raises a question about whether he has sufficient sensitivity of judgment to entitle him to sit on the country’s highest court.

I will be interested to see the report of the Judicial Conduct Commissioner.