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.