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.

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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.

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The Thomas/Farmer e-mails

August 6th, 2010 at 11:00 am by David Farrar

The Herald has put online 50 pages of e-mails related to the Justice Wilson complaints, between former Judge Ted Thomas and QC Jim Farmer.

They are a fascinating read, and quite extraordinary – especially as the friendship gets strained on the issue of Justice Wilson. The Herald summarises:

As time passed and Sir Edmund pressed Dr Farmer to come forward, the emails between the two good friends became strained.

When Dr Farmer suggested that Sir Edmund might have leaked information to a controversial blogger, the retired judge replied that the comment made him “unbelievably angry”.

“I note that you are distressed. You sound like Weatherston,” Sir Edmund wrote, referring to Clayton Weatherston, the man found guilty of killing Sophie Elliott.

“We are all distressed. Those who have expressly used the word ‘sick’ to describe how they felt about this whole sorry business include you, me, the Chief Justice and the Attorney-General. To make matters worse, it is a distress that could have been avoided if Alan had followed your original advice and tabled the true facts with the Chief Justice at the outset.”

The blogsite they refer to is the one by Vince Siemer.

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Judicial Conduct Panel Proceedings

July 6th, 2010 at 10:10 am by David Farrar

I’m at the initial hearing of the Judicial Conduct Panel, hearing the complaints against Justice Wilson. It started shortly after 10 am.

One of my media benchmates asked me if I knew about the 30 minute delay on live reporting. I thought they were kidding, but in fact they were saving me from a contempt charge, as the rules for the hearing do specify no live broadcast or reporting, including over the Internet.

So I’ll only be able to start reporting the substance at around 10.40 am, and am going to have to try and keep in my head how long ago something was said!

We wondered if it would be like a normal court, and we should stand when the panel entered. The clerk removed the need for us having to guess by saying “All Stand”.

Justice Wilson had failed last week to injunct the panel before his judicial review hearing, but the panel decided (as all counsels agreed) to delay the substantive hearings until after the judicial review which is set down for 1 to 3 September.

They mentioned that Sir Ted Thomas had also written in urging a delay. After his evidence was found to be largely incorrect hearsay by the Commissioner, I’m surprised he is still offering his opinions on the issues.

The next meeting of the panel is set for Friday 1 October.

The former wool board is represented by counsel, but mentioned that if no other parties apply to be represented, they will not continue to attend. Hence it will be just the counsel for Justice Wilson and the Special Counsel.

One significant problem is that it seems the Acting Attorney-General has not formally referred the exact issues around Justice Wilson to the panel as required by the Act. The Special Counsel will seek a formal referral letter through the Solicitor-General, and then use that to effectively place “charges” against Justice Wilson. The use of “charges” does not mean criminal behaviour, just alleged misbehaviour for a Judge.

The panel recessed at around 10.30 am and will come back shortly to record a formal minute, and it should all be over by 11 am.

The panel chair has read out a minute, and this initial session is concluded. The next stage is the judicial review. I’m too busy to spend three days in court covering it, but may pop in for the opening and closing.

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Special Counsel appointed

June 27th, 2010 at 7:22 pm by David Farrar

Judith Collins announced on Friday:

Dr Walter Sofronoff QC, Solicitor-General of Queensland, has been appointed Special Counsel to the Judicial Conduct Panel to inquire further into complaints against Justice Wilson, Acting Attorney-General Judith Collins said today.

The Attorney-General must appoint and instruct a person to act as Special Counsel in an inquiry by a Judicial Conduct Panel, as set out in the Act.

At the hearing the Special Counsel presents 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.

An overseas appointment is logical. Few NZ lawyers would want to effectively prosecute a Supreme Court Justice, that they may have to appear before in future if he retains his job.

What I find interesting is that this appointment was announced, despite the lodging of a judicial review application by Justice Wilson. I may be reading too much into it, but to me that suggests a determination to move forward with the panel.

This may necessitate Justice Wilson trying to injunct the panel, until his judicial review is completed.

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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.

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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.

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Supreme Court Justice faces Judicial Conduct Panel

May 7th, 2010 at 1:24 pm by David Farrar

The Herald reports:

The Judicial Conduct Commissioner says there should be further investigation into the conduct of Supreme Court judge Justice Bill Wilson in the long running Saxmere wool case.

The commissioner, Sir David Gascoigne, has received three complaints about Justice Wilson’s conduct in the Saxmere wool case.

Today he said there was no basis for dismissing the case.

However, he said he was unable to take the matter any further in a preliminary examination, and recommended a Judicial Conduct Panel examine the issue.

The recommendation would go to the Attorney-General.

Justice Wilson, in a statement released shortly after the commissioner’s, said he intended to speak with the Chief Justice early next week.

I have no doubt the Acting Attorney-General (Judith Collins acts on this issue) will agree to set up a judicial conduct panel.

I think the time has come for Justice Wilson to resign and return to practising as a lawyer. The Judicial Conduct Panel would probably hear most evidence in public, and would be effectively a trial of the Judge. That would be a very painful process to go through for him. His comments about talking to the Chief Justice indicate he must be seriously considering this.

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Editorials 3 May 2010

May 3rd, 2010 at 11:00 am by David Farrar

The Herald is on judicial transparency:

The legal profession, at least in its upper echelons, is so small that there are bound to be close and long-standing relationships between senior lawyers and judges which may create the appearance of conflicts of interest.

The possibilities have been amply demonstrated by the case of Supreme Court Justice Bill Wilson, who finds himself facing the Judicial Complaints Commissioner because, when he was a Court of Appeal judge, he failed to fully disclose the extent of his indebtedness to a lawyer appearing before him.

And that is the problem – the lack of disclosure. The debt, by itself, does not mean the Judge could not sit on the case, and be impartial. In fact Justice Wilson ruled against the lawyer’s clients in a number of cases.

But the matter does not end there because now the Judicial Complaints Commissioner must decide whether the judge’s conduct in failing to promptly and fully disclose the nature of the relationship needs to be referred to either the Chief Justice or the Attorney-General. Unfortunately, either course of action may also raise questions of the kind mentioned by the Supreme Court because Justice Wilson has had close associations with both office holders.

He and Mr Galbraith have been in a racehorse-owning partnership with Chief Justice Dame Sian Elias. On the other side of the equation, Justice Wilson and Attorney-General Chris Finlayson were partners at the law firm Bell Gully and Mr Finlayson is on record as calling him a friend. So whichever way this case may turn, it gives rise to the very kinds of doubts that the courts, quite rightly, are at pains to avoid.

The Attorney-General is friends, I am sure, with a large number of Judges. I think we have to be careful about not having unrealistic expectations that Judges and lawyers have no dealings with each other at all, except in court.

But whatever the outcome of this particular case, the courts should reconsider the old policy of secrecy and remoteness as a means of preserving confidence in the system generally. More openness in the form of a public register of judges’ pecuniary interests – much like that which applies to MPs – would be much more effective.

Compulsory listing of such things as business interests, partnerships, trusts and, importantly, debts would make any possible appearance of conflicts of interest immediately apparent and therefore defuse any controversy such as the one engulfing Justice Wilson before it had a chance to arise.

The idea of a register is worth considering.

The Press suggests the winner of the UK elections will inherit a poisoned chalice:

When the British deliver their electoral verdict on Thursday, the winning party will be presented with a poisoned chalice. The huge cuts the new government will have to make to spending ensure it will be hounded into deep unpopularity and be long branded as the Scrooge that ended a decade of prosperity.

The reality that the golden economy has been dead for two years and has been sustained by massive borrowing will not ease the predicament of the incoming administration. In the cause of weathering the economic storm, spending and borrowing was maintained; only now do the bills have to be paid.

Yet the Lib Dems and Labour keep insisting one should go on borrowing and spending more for a wee bit longer.

The Dominion Post marks World Press Freedom Day:

For most New Zealanders, today is just another working day to be endured before the next long weekend heaves into view. To journalists, however, it means more than that. May 3 is the annual date that Unesco has set aside as World Press Freedom Day, an occasion to celebrate the value of a free media.

It is a prize worth winning, but comes at a price. New Zealand journalists don’t get killed for doing their jobs in this country, but that is not true elsewhere. In 1975, Kiwi Gary Cunningham was one of five journalists murdered by Indonesian forces in East Timor wanting to prevent the world knowing of their invasion. And already this year, at least 12 journalists have been slain for following a vocation with attendant dangers.

Here, the risk normally involves being called a “little creep” by an angry prime minister, being ejected from the team bus by an irate sports coach, or being sued for defamation for – perhaps – wrongly criticising someone with a reputation to defend.

True.

Thus it is harder in a modern democracy to persuade a cynical populace that to do away with a free press is to do enormous damage to the body politic and civic discourse. In the West, it is more common for the public to dismiss the work of reporters as sensationalism, trivia, and “lies”. Sometimes, they are right.

More usually, they are wrong. People often forget that everyone errs and that their errors are rarely exposed for others to judge. Chefs’ mistakes are buried in the rubbish; doctors’ mistakes are in a graveyard.

In the media business, mistakes can be of fact, emphasis or omission – and are usually inadvertent. Unlike the mistakes of others, however, journalists’ errors are published or broadcast for everyone to see, and – in the best of the breed – corrected publicly.

Alas the public correction is all too rare.

The ODT calls for no delay to the ETS:

Having once claimed to be a “follower” of our trading partners in such legislation, New Zealand, the critics claim, now looks likely to be an international leader – out on a limb with a feigned carbon tax that may in time come to be regarded as either innovative or foolish.

Businesses, for one, have not been slow to remind the Government of this risk, arguing that the policy will make it even more difficult to trade successfully with other countries which have yet to implement climate-change responses, or plan to defer them.

They have asked for New Zealand’s policies to be “aligned” with those of our major trading partners – a request that on the surface appears reasonable but is realistically impracticable. …

Yet, if the world has so much to lose from climate change, then it behoves countries to take whatever steps they can to minimise the effects – as a matter of urgency.

A global solution is obviously required and Western nations, including New Zealand, must lead it, since they are in the best possible position to afford the costs and provide the technology and innovation to achieve it.

Here the ODT is wrong. If China is not part of a deal to reduce emissions, then the efforts of the rest of the world will be futile. China by 2020, will be producing more greenhouse gas emissions than the rest of the world does today – even if they live up to their Copenhagen pledge.

For New Zealand to now delay further what has already been a slow, step-by-step procedure, would deny pragmatism in favour of the changing winds of political fortune.

I don’t support a change to the ETS legislation being done under urgency. If however there is no post Kyoto agreement, which includes commitments from China, then the rationale for an ETS is greatly reduced.

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Editorials 13 April 2010

April 13th, 2010 at 1:00 pm by David Farrar

The Herald warms up on nukes:

Who would have thought even a few short years ago that the New Zealand Prime Minister would be on the guest list for the nuclear security summit hosted by the President of the United States in Washington? John Key’s presence offers further evidence that the anti-nuclear rift of the 1980s is all but mended. It may be too soon for a resumption of visits to New Zealand ports by American warships, but there is an undoubted resonance between this country’s anti-nuclear law and President Barack Obama’s long-time commitment to a world free of nuclear weapons.

Indeed. And while I doubt we will ever rid the world of nuclear weapons, I will be glad to see a lot less of them.

A constant grievance of non-nuclear nations has been that, while the non-proliferation treaty denied them the right to acquire nuclear arms, those countries with such weaponry seemed to regard its retention as their right. The importance of President Obama’s initiatives, and those of Russia, is that they illustrate a change of attitude by the pair, which possess more than 90 per cent of the world’s nuclear weapons between them. Their move towards disarmament provides, in turn, a greater moral authority to address examples of proliferation, real and potential, whether the likes of Iran’s nuclear programme or nuclear weaponry becoming part of the arsenal of terrorists.

In this area, I think Obama’s policies have been sound, It is hard to preach restraint to the rest of the world, while not doing anything to reduce your own arsenal.

President Obama said last week that nuclear terrorism posed a graver threat than the risk of war between nuclear nations. He is undoubtedly right, and the crafting of a pact to keep nuclear weapons out of the hands of groups like al Qaeda will be a focus in Washington.

Stopping Iran from developing them would be a good start to that.

The Press also talks nuclear, but ore on ships:

Passage of the nuclear-free legislation in 1987 marked New Zealand as a nation prepared to take an independent stance on the world stage.

This stand did win friends, especially in Europe, but it also came at a cost. It led to a defence freeze with the United States, including an end to US navy ship visits. But with Prime Minister John Key now attending a nuclear summit in Washington, it is inevitable that a resumption of visits should be mooted, in this case by Sir Geoffrey Palmer, an architect of the nuclear-free law.

Renewed visits by US navy vessels would be a logical step in the thawing of the defence freeze with our former ally and would not require a change to the present anti-nuclear law.

Yep. No law change needed. Of course the Greens will still protest it, but they protest almost everything about the US.

It is possible that the nuclear propulsion issue will be revisited in the future. But this is likely to be in the context of nuclear power generation, especially if other electricity sources, such as hydro and wind turbines, continue to be beset by opposition to their location, and the security of power supply is seriously threatened.

Actually nuclear power is not particularly practical for New Zealand, but I agree it should be an option. Much better than coal!

The Dominion Post focuses on Justice Wilson:

Justice,” a former lord chief justice of England said, “should not only be done, but should manifestly and undoubtedly be seen to be done.”

Manifestly that has not been the case in the long-running, and convoluted, dispute between the former Wool Board and a group of woolgrowers that found its way to the Court of Appeal in 2007.

One of the judges who considered the case, Bill Wilson, was a close friend and business partner of Wool Board counsel Alan Galbraith, QC. Justice Wilson disclosed their shared ownership of a racehorse or racehorses to counsel for the woolgrowers and, if his recollections are accurate, their shared ownership of a horse stud. But for reasons that are now presumably costing him a great deal of sleep, he did not disclose that he owed Mr Galbraith almost $250,000. Nor did he disclose the debt to colleagues in the Supreme Court when they considered an appeal from the growers in March last year. In fact, he led the court to believe he was not beholden to Mr Galbraith in any way. …

Justice Wilson is a well-liked and well-regarded legal practitioner who has added a dose of common sense to the bench. However, in this instance his judgment has failed him completely.

By neglecting to fully inform the growers’ counsel of his links with Mr Galbraith, he has not only damaged his own reputation, but that of the highest court in the land.

The operation of the justice system relies upon public confidence in those who administer it. New Zealand is a small country. Inevitably, there will be friendships between judges and lawyers, and lawyers and lawyers. The public knows that lawyers who one day are verbally brawling in court may the next be arguing in support of each other and that, on other occasions, they may be observed enjoying each other’s company in social settings.

That is reasonable. Members of the legal profession are not expected to carry professional enmities over to private life and judges are not expected to sever all personal ties on being elevated to the bench. However, for public trust in the system to be maintained, all conflicts and potential conflicts of interest have to be properly disclosed.

And that lack of disclosure, especially to his Supreme Court colleagues, may extract a heavy price.

But such processes take time. In the meantime, the reputation of the judiciary is being compromised.

At the very least Justice Wilson should have stepped aside from his duties, when the case was referred to the judicial commissioner. When he did not do so, Chief Justice Dame Sian Elias should have stood him down.

I disagree. A mere investigation by the JCC should not require a Judge to stand down. However if the JCC recommends a complaints panel be established, then a stand down would be appropriate.

And the ODT also talks nuclear:

A year ago, President Obama announced his plans for a world without nuclear weapons, expressing a hope rather than any rational expectation, but nevertheless a plea for disarmament that was widely welcomed.

This week he signed the “New Start” treaty with Russia, under which both powers will reduce their nuclear arsenals, while still deploying 1550 warheads each. …

Perhaps the true significance of these measures is to compare the situation with that which existed before 1991, when the Soviet Union collapsed: at that time each side deployed more than 20,000 strategic warheads.

I remember those days well. At school we saw films about nuclear war, and around half of my generation though a global nuclear war was likely in our life time.

The collapse of the Soviet Empire was a wonderful thing.

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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.

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More pressure on Justice Wilson

April 10th, 2010 at 7:42 am by David Farrar

The Weekend Herald has two articles on the embattled Supreme Court Justice Bill Wilson.

This article reveals that former Court of Appeal Judge, Sir Ted Thomas, has written an 18 page letter to the Judicial Conduct Commissioner:

Sir Edmund (Ted) Thomas, formerly of the Court of Appeal, wrote an 18-page complaint to the Judicial Conduct Commissioner, raising concerns that Justice Wilson had failed to fully disclose a debt he owed a senior lawyer at a time the lawyer argued a case before him.

This was to QC Alan Galbraith.

Sir Edmund’s complaint sets out respects in which he asserts Justice Wilson failed to meet required ethical standards of judicial conduct.

He added: “Based on my 43 years’ or so experience at the bar and on the bench, I believe that any other judge I have known would have stood down or made a complete disclosure.”

The bigger issue, in my opinion, is not the original decision to hear the case, but the failure to disclose the debt to fellow Supreme Court members.

According to a copy of his complaint obtained by the Weekend Herald, he considers the matter is too serious for the conduct commissioner to refer it to Chief Justice Sian Elias.

He wrote that this course of action should be ruled out because of the horse-racing interests Dame Sian, her husband, Hugh Fletcher, and Justice Wilson shared until recently.

If it is not referred to the Chief Justice, then that is effectively saying it is a potentially sackable offence, and it is hard to see how Justice Wilson would not resign, rather than undergo a judicial conduct panel.

The more serious revelation is in their second article:

In addition to the fact that Justice Wilson had not made full disclosure to the Court, Sir Edmund had understood that Galbraith had been pressing Justice Wilson for payment in 2007.

Which indicates it should be top of mind for disclosure.

“Mr Farmer was extremely critical of Justice Wilson’s failure to disclose the indebtedness and endorsed a comment made by Mr Carruthers [Colin Carruthers, QC] that ‘Bill [Justice Wilson] has feet of clay’.”

Sir Edmund states that he was told that Carruthers, a friend of Justice Wilson, “had tried and tried to persuade him to disclose the indebtedness but he had adamantly refused”.

This had become more distressing for those in the know after the Supreme Court ruled on July 3 last year that on the basis of information provided by Justice Wilson, there appeared to be no basis for a finding of apparent bias.

The part I have bolded appears to be a smoking gun.

It is one thing to have overlooked disclosing the debt to the Supreme Court as it was not top of mind, and you did not consider it potentially relevant.

But if a senior QC had been lobbying you to disclose the debt, and Justice Wilson refused to do so, then he was deliberately concealing the information from his fellow Judges, and not allowing them to decide for themselves if the debt was material.

The time-frame is not absolutely clear, but it looks like the entreaty from Mr Carruthers was made prior to the first Supreme Court hearing. If that was the case, then I’d say that has made the position of Justice Wilson untenable – a conclusion I have not been willing to make previously.

Sir Edmund records that he spoke to the Chief Justice by phone on July 20 and read her the notes he had made of his communications with Farmer but did not disclose Farmer’s identity.

Dame Sian had told him that she had received “a categorical assurance” from Justice Wilson that he was not “beholden” to Galbraith. She felt unable to act when the source was anonymous and in the absence of a formal complaint. The Chief Justice was “sickened” by what he told her, Sir Edmund wrote, and repeatedly asked him to persuade his source to come forward and make a formal complaint.

Which has effectively happened with Sir Ted revealing it was Jim Farmer. And if Justice Wilson did make a “categorical assurance” to the Chief Justice, it again makes things worse.

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Siemer v Solicitor-General

March 2nd, 2010 at 10:15 am by David Farrar

Proceedings have just started in the Supreme Court with the full bench of five Justices, and I am live blogging from the media bench.

Robert Lithgow is appearing pro bono for Vincent Siemer in seeking leave to appeal appealing a decision of the Court of Appeal.

Siemer has had a long standing feud with receiver Michael Stiassny and various items on a website he ran have been ordered to be removed. Siemer was prosecuted by the Solicitor-General for refusing to do as contempt of court, and was sentenced to jail for a finite period.

The issue is that as the Solicitor-General did not seek a term of less than three months, then should Siemer have been entitled to a trial by jury under the NZ Bill of Rights Act 1990.

A major aspect of this is whether or not use of contempt of court is a criminal process or civil process.

Chief Justice Elias is interjecting quite frequently.

Lithgow is arguing that rather than have the Court of Appeal reduce the term of imprisonment, they should have quashed the conviction for contempt and ordered a jury trial.

Finally another Justice has interjected. Not sure of his name, but the Justice sitting on the far right (from my view).

CJ Elias has interjected around a dozen times, which may be seen as scepticism, but she has also commented she is favourable to one of the arguments.

An interesting discussion on what will happen is Siemer does get his jury trial, and whether he will argue that the injunctions should not have been issued, rather than the he did ot breach them.

Lithgow concedes his client is most likely to want to argue the injunctions should not have been issued, but that this is not relevant as the court will control the trial, and can rule on what is allowed.

The Registrar has kindly given me a seating plan for the Justices, so I can now identify that Justice Anderson was the Judge referred to above. Justice Blanchard has questioned Lithgow considerably also.

It is tempting to try and conclude that the level of questioning means a Judge is hostile to the argument, but this is not necessarily the case. What I will find interesting is to contrast how the Crown Law arguments are treated.

Back now after the morning tea break. Focusing on a 1908 English case on contempt. Only other media here are Law Journal editor Bernard Robertson and NBR’s Rob Hosking.

The discussion is how to assemble a jury where there has been no criminal indictment.

The Court of Appeal has already found that the contempt process was essentially a criminal matter (unlike the High Court), but did not grant a jury trial, and instead reduced the sentence so no trial was necessary. Lithgow says main point is he received a criminal sentence originally.

If the original conviction/order is quashed, then the Solicitor-General could seek a new trial, and seek a punishment of less than three months. However it is debatable whether the SG not seeking a longer sentence means that this is binding on the court, and hence even in that circumstance could still require a jury trial.

Lithgow is arguing that a jury can be trusted to deal with a matter of contempt, as the contempt laws exist for the sake of citizens.

CJ Elias is trying to move Lithgow on, saying that if there is a right, there is a right, regardless of whether or not one thinks it is suitable for a jury.

The debate has now moved to whether or not Siemer had complied with the injunction as he did remove some material from his website. Lithgow argues there was no way to know exactly what material needed to be removed.

Justice Anderson makes the point that Siemer could have applied to the High Court to get the injunction clarified. CJ Elias says the SC will not give an advisory opinion during the hearing on the injunction. She also says that the injunction does not require the entire website to be taken down – just material that breaches the injunction.

My feeling is that Siemer is unlikely to prevail on the issue of asserting he did not breach the injunction. But on the wider issue of the right to a jury trial, still very hard to read until one hears the Crown Law arguments.

Justice Blanchard has said the terms of the injunction are not complicated. Lithgow argues what remains on the website is merely a few splinters, and how far does one go in removing material, when the vast majority has been removed.

Madeleine Laracy has just started speaking for the Solicitor-General. Says that requiring jury trials to enforce contempt breaches would lead to many

more people ignoring court orders, so they can take their chances pleading before a jury. Is now quoting my favourite Justice Scalia on how contempt is just enforcing a civil process.

Justice Anderson has asked if there is any other civil proceeding that can lead to imprisonment, now that they no longer jail for debts. Laracy responds that prison can be avoided my complying with the court orders, and is essentially a choice for Siemer.

The Assistant Crown Counsel is Briar Charmley. So far the “off-siders” have not got to speak.

Just back from the lunch break. My views of the exterior remain unchanged. Up close it is even worse. The rails look dusty, and it really belongs in a 1950s Soviet museum. However the inside is quite different. What I most like is that the court room itself is just inside from the main door, so it is really easy to access it. And the interior of the court room is lovely. I’d take a photo of it, except I didn’t apply in advance for permission – may do so next time.

Justice McGrath is asking why there should be a distinction between civil and criminal contempt. Laracy says criminal law’s aim is to punish, and civil law’s aim is to coerce to comply and is not unconditional and can be mitigated or averted by compliance.

McGrath responds that the distinction is academic because at the end of the day it is still jail. Laracy says it may only be jail if they do not comply. Quite amusing to see a former Solicitor-General cross swords with Crown Law.

Justice Wilson has also said he finds the distinction artificial.

Overall Crown Law is getting reasonably battered on the civil vs criminal argument.

Laracy says no case in NZ history has had contempt dealt with as an indictable criminal offence, and referring to the Nash case.

Have to head off now. Very dangerous to make predictions on a case when you have not read all the material, but my impressions are:

  • Siemer will not succeed at being found to have not broken the injunctions
  • Siemer will succeed at having contempt charges with no maximum term of imprisonment deemed to be a criminal matter, which could require in future a jury trial
  • But I do not think he will succeed in getting a new trial

I may be wrong on everything though :-)

I also think at some stage the Government may amend the law so that an offence of contempt with a maximum three month imprisonment term is made available as a judicial option. This would be a sensible measure so there is something less draconian that possible indefinite imprisonment.

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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.

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