PARLIAMENT SLAMMED BY JUDGE FOR UNDERFUNDING PUBLIC WATCHDOG

26 December 2011
In an unprecedented ruling, two days before Christmas, Auckland High Court Judge Timothy Brewer condemned Parliament in an 18-page judgment which concluded Judicial Conduct Commissioner David Gascoigne's inability to deal properly with mounting complaints of misconduct against NZ judges is the result of Parliament's failure to allocate funding.

The judge referred his ruling to the Attorney General and Minister of Justice for corrective "executive action".

Even though the judgment concluded "the Act is not working as Parliament intended.  Indeed, it could be having the opposite effect" AND "the application brought by the plaintiff revealed a problem which needs to be addressed by the Executive", Brewer J "declined formal relief".  A subsequent Minute, issued hours later, indicated the Judge was reconsidering his decision based upon an email he received from Crown Law that the Commissioner had finally given a decision.

It is now to Attorney General Chris Finlayson (pictured) to correct the systemic undermining of the public watchdog or attempt to quietly sweep the matter under the bureaucratic rug.

The court action which prompted the ruling concerned a complaint against Auckland District Court Judge David Harvey which the Commissioner had failed to address after more than a year. The Commissioner's defence was that he lacked the resources to conduct his statutory duties and was even required to work out of his old law office.

While the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 requires "The Commissioner must acknowledge complaint and deal with it promptly", some judicial misconduct complaints have gone inactioned for as long as three years. The current backlog numbers over 200.

In the most recent fiscal reporting year, Commissioner Gascoigne took no action or dismissed 160 complaints and referred 4 complaints to the Head of Bench, where the chief judge is assumed to have secretly dealt with the judicial misconduct. No complaints were referred for investigation to a formal panel.

CONDUCT COMMISSIONER CHOKE CHAINED

12 December 2011
Business is good at the Office of the Judicial Conduct Commissioner. Too good according to many judges. As complaints of misconduct against judges soar, and the queue of backlogged complaints exceeds 3 years, judges in the incestuous NZ judicial community fear Commissioner Sir David Gascoigne will respond appropriately, maybe even publicly.

It was not only the severity and weight of judicial complaints which opened the Commissioner's eyes since taking over from former Commissioner "fixer" Ian Haynes of law firm Kensington Swan in July 2009, it is the virile targeting of anyone deemed to be critical of judges' conduct - combined with the judges' power to override the watchdog himself.

Shortly after taking office Mr Gascoigne fell out of grace for recommending the convening of a judicial conduct commission panel to investigate impropriety by former Supreme Court Justice Bill Wilson. While Gascoigne had little option due to the massive press coverage of events and retired Justice Sir Edmund Thomas personally supporting the complaint, the Judicial lobby apparently wants him out, in favour of a replacement along the line of another Haynes. Even for an insider like Sir David, who fully understood the insular nature of judicial appointments and the Commissioner's "unofficial role" to protect their flank, the High Court ruling of Justices John Wild, Graham Lang and Forrest Miller in October 2010 quashing the Commissioner's recommendation to investigate Wilson J's conduct was alarming.  If the Commissioner failed to get the message, a fine point was added by Wild J's immediate promotion to the Court of Appeal.

As Commissioner, Mr Gascoigne earns a small portion of what he earned as a senior partner of Minter Ellison. His dissatisfaction appears to extend beyond salary and the insufferable role of being at the mercy of powerful corrupt judges he at once has a statutory duty to expose and hold to account.

In a recent affidavit filed with the High Court, Gascoigne asserted funding is so tight that the Commissioner does not have an office and is forced to work out of the Wellington office of Minter Ellision. It is perhaps a symbolic reminder of his Clayton's role and that, like his colleagues, he will be back before the judges he is currently tasked with keeping honest - and possibly sooner than he  planned.

COURT TRANSCRIPTS TOO PRECIOUS TO SHARE WITH PARTIES

30 November 2011
In a twist on the old Benjamin Franklin saying "Three can keep a secret if two are dead", New Zealand Court of Appeal judges have implemented a policy that a hearing transcript is not to be provided to parties considering appealing to the Supreme Court unless the Supreme Court requires it be produced.  In turn, the Supreme Court rarely does so, having turned down at least five such requests this year alone.

This month Supreme Court Justice Peter Blanchard rejected a transcript request in a high profile Wellington trust dispute by Mr Malcolm Rabson on the ground it could not be actioned before Rabson's appeal right expired the next day. Court of Appeal President Mark O'Regan had previously denied the request by stating "appeal options should be by reference to the Court's judgment, not what was said at the hearing".

Called "the truthful witness", transcripts have become the increasing bane of dishonest and inept judges in New Zealand. Complaints to the Office of the Judicial Conduct Commissioner regarding hearing conduct of Court of Appeal judges are reportedly up 400% in the last 4 years. Meanwhile, judicial bias appeals to the Supreme Court have virtually exploded since the success of South Island woolgrower Saxmere in exposing disgraced Supreme Court Justice Bill Wilson's conflict of interest with opposing counsel two years ago. 

After Justice Susan Glazebrook was caught on the record defending the practice of fraudulent invoicing from the bench in a 2008 appeal hearing, an embarassing recess was called to allow the Registrar to erase Her Honour's comments from the record. 

Something had to be done.

Because the Court of Appeal had fallen into custom of recording all appeal hearings, it was considered bad public relations to now stop recording, even though the High Court stopped recording proceedings ten years ago.  Former President William Young, working in conjunction with District Court Judge Roderick Joyce of the powerful Rules Committee, decided the Courts were faced with too many perception negatives to adopt a new rule which went against the projected appearance of transparency. The solution was decided to merely make transcripts inaccessible.

Today, litigation parties seeking a transcript are told their expressed need was not good enough or that the "cost of preparing the transcript" is not warranted - even when they have offered to pay for it.

Surprisingly, even the Judicial Conduct Commissioner has fallen into lockstep with this obstructive position.  Dr Frank Deliu filed a complaint with the JCC and was told by the current Commissioner David Gascoigne that he would not request the court transcript as part of his investigation because he did "not want to appear to be assisting" the complainant.

Mr Gascoigne's predecessor Ian Haynes had infamously stated in an earlier case that he would not avail a hearing transcript to support a complaint of judicial misconduct because the "official" transcript was by audiotape and his governing legislation only allowed him to access "written documents" in the investigation of judicial misconduct.

Meanwhile, judges have become so hostile to having their public duties recorded that early this year Court of Appeal Judge Robert Chambers set off a breach of counsel's duty of fidelity to the Court complaint to the Law Society because counsel in Orlov et al v Atty General took his own recording at the public appeal hearing. Chambers J was forced to relent when it was shown that counsel had duly informed the Registrar of his intent to record prior to the hearing. The Registrar has since been instructed to not approve such requests.

The Court of Appeal's aversion to revealing hearing transcripts to the litigation parties has filtered to orders over the lower courts, effectively expanding the practice. In a September 2011 ruling, Court of Appeal President O'Regan and Rhys Harrison J refused a request for a family court transcript by an applicant identified only as "AJF".  The applicant claimed the transcript would show the court appointed lawyer for child was unsuitable and that a psychologist report ought to have been prepared. The judges' rational for refusing the request was that the transcript "will be irrelevant to that exercise".

RIP VAN WINKELMANN

28 October 2011
It is hard to imagine a judge more asleep at the switch than Helen Winkelmann (pictured). As the Chief High Court Judge who has accurately identified that courtrooms around New Zealand are sporting more cobwebs these days than litigants, one would think she might try to figure out what it is about the courts that seems to have provoked a broad allergic reaction among the public. Instead she is out to attack her 'competition' - as she sees it.

That competition, according to Winkelmann J, is those damn mediators and private arbitrators. They deprive the nation of the body of court precedent which guides commercial and civil law, and - hold your hats - are not as trustworthy as the courts.

In a recent speech to the Arbitrators' and Mediators' Institute of New Zealand, Winkelmann J tried to warm up the crowd by accepting that mediation "is a good thing", before immediately delving into her "four concerns". More than a few jaws dropped when she claimed that personal interests of the mediators, excessive durations of mediations which impact judgment, cost blow outs and resolutions determined by power imbalances were the bane of this alternative to her pet court option.

Was this not a case of the old girl projecting the ills of the courts upon her competition?

Media responses from the National Business Review to NZLawyer to Her Honour's gypsy tour suggest questionable judgment by the Chief Judge, not without, perhaps, a little pity for the old girl.

One obvious thorn is virtually everyone knows that decisions can take years to come out of the NZ courts. Winkelmann herself often takes six months to issue an interlocutory ruling. Even the World Justice Project survey run by Court of Appeal judge Anthony Randerson's brother could not ignore this reality, giving New Zealand low marks. It must therefore be demeaning for Winklemann J to have to obfuscate these realities in her effort to sell reasons to use the courts. The charade is perhaps reminiscent of President George Bush's sales pitch for going to war against Iraq.

Winkelmann J is also more junior than the five judges, other than Raynor Asher, who sit on commercial cases. She has repeatedly turned a blind eye to judicial indiscretions by senior judges under her authority, including conflicts of interest by Judith Potter and Geoffrey Venning JJ and the obvious inability to add accounts by Rodney Hansen J when ruling in favour of his mates.

There is also the broader question of who really wants to see the Chief High Court Judge busking on the street for business?

Though Her Honour has taken up the avocation of hawking courtroom services on the lecture circuit, her dissing of the competition has provoked unusual criticism of a judge in a country where the gospel states judges have no flaws. Barrister Nigel Dunlop, writing for NZLawyer, too politely responded that, contrary to the hapless Winkelmann's remarks, parties to mediation control both the process and the costs - in contrast to court proceedings.

As to power imbalances, it is absurd to advocate NZ courts as providing a more level playing field when money is such a driver that plaintiffs must put the defendant's projected legal costs into escrow before they can obtain a hearing and judges are so cloaked in immunity and self-importance they have no compunction deciding cases involving family and business partners without mere disclosure.

THE SCOURGE OF DEFAMATION

3 October 2011
Defamation has apparently become so bad in New Zealand that judges have implemented an "express lane" for the courts to deal with it. Presumptions of the court now generally rest with the plaintiffs (influential figures are almost exclusively the consumers of such claims) and judges often warn defendants at first appearance that their legal fate is by their own hands.

Where once defamation was the province of jury trials - by definition 'defamation' is the perception of the public at large - judges effectively eliminated this statutory right of a defendant as too lavish and slow over the last four years.

The mode of trial may be immaterial. Only a small fraction of NZ defamation claims go to a defended hearing. Most well-heeled plaintiffs win by force or default. Less-heeled defendants struggle with the huge cost of defence. Often they are debarred from defending themselves after their accuser racks up sufficient pre-trial costs awards such that the judge makes an order these must be paid to their accuser before they can appear at trial. Media organisations, on the other hand, almost always settle if the plaintiff has the financial resources to push the claim through the courts. Principles take a back seat to financial assessments which not surprisingly determine the cost of defending is often greater than paying off. Settlement, in turn, always contains a confidentiality agreement.

The ironic upshot is that either the plaintiff's unanswered allegations or vagueness and silence are the outcome in the majority of these civil proceedings which legally purport to challenge and define the truthfulness of public protestations.

It is also ironic that some of the most virulent defenders of the right to an unfettered reputation are judges who expressed legitimate concern for the potential of defamation abuse when practitioners. Court of Appeal Judge and current advocate of protecting public personas, Rhys Harrison, long ago put it in simple and sweet terms when he said "Defamation silences false speech, but it also silences true speech".

One consequence of the Courts increasing presumption that the unfettered reputations of influential people are truths which need protecting is that what passes as investigative journalism today in New Zealand are largely mundane exposés. Typical are reports on expense account overspending by Members of Parliament and corner dairies selling cigarettes to under age teenagers. Having made significant investments in stories of dodgy dealings by powerful people over the years, only to be thrown in the bin because of a lawyer's defamation threat, television and print media organisations are rarely prepared to embark down that path. It seems only when the person's crimes become so public and destructive that it results in a self-imposed crash and burn that the mainstream media feel it is safe to finally report their public persona did not reflect their true character.

Even when it later surfaces that a party who won a defamation award - without a hearing - was engaged in fraudulent conduct as a public official, the Police, government agencies, the courts and press intently look away, as if undoing the resultant injustice merely opens a mended wound.

Take the bizarre defamation case of Wells v Haden. Grace Haden is a former police prosecutor and current private investigator who has prosecuted and exposed corruption for 30 years. In July 2006, Barrister, prominent politico and academic on animal welfare Neil Wells filed a defamation claim against Haden after she posted an article on a website claiming Wells was running a sham charitable trust and diverting public funding and fines earmarked for Waitakere Animal Welfare Services through this (non-existent) trust to himself personally. To underscore the alleged fraud, Haden registered the trust name which Wells had been operating under.

Having the documents to support her publication, and as a former prosecutor accustomed to court procedures and rules of evidence, Haden thought she had nothing to fear. Wanting to save the cost of an attorney, she appeared for herself.

A frustrating year later, District Court Judge Mary Beth Sharp ordered Haden to pay Wells, within two weeks, $19,000 in interlocutory costs judgments before her defence to the defamation would be allowed. Judge Sharp warned the emotional Ms Haden that she had brought this upon herself. The Judge simultaneously directed Wells to file a new statement of claim.

Ms Haden failed to pay. In any case, Ms Haden knew she could lodge a defence to the new claim. But no new statement of claim was filed. When Wells attempted to bankrupt her over the $19,000, she paid $25,000 to settle. According to Haden, the case seemed otherwise to have faded away - until she received notice from the Court that a quantum of damages hearing had been set down before District Judge Roderick Joyce in March 2008. She appeared, only to find out later the hearing was confined to damages only. This meant the judge was assessing damages without any court finding her guilty first.

Though the judge allowed Ms Haden to submit evidence in mitigation of damages, his 93 page reserved judgment left no doubt he had been expecting an apology. The judgment characterised her evidence as "rehearsals" and berated Ms Haden for continuing her "extreme and outlandish allegations" in her affidavit filed in mitigation of damages. Mr Wells was awarded aggravated and exemplary damages of $57,500. The judge purported to conduct his own internet searches post-hearing to support his exemplary damages award.

Ms Haden paid $49,000 for a lawyer to appeal to the High Court. But the money ran out and Ms Haden appeared at the hearing. In a reserved judgment nine months later Rodney Hansen J expressed disquiet over Judge Joyce's trenchant judgment criticism of Haden, but concluded "no harm was done". Hansen J upheld Joyce's finding, dismissing the appeal grounds of truth and honest opinion on the basis Haden "was unable to contest the essential elements of the plaintiffs' claim - that there were defamatory statements published by the defendants - and she did not seek to retreat from them at the hearing".

The indefatigable Ms Haden continued to press Waitakere City Council and MAF for evidence to further prove her assertions. The result is that the trust she was found guilty of defamation for calling a "sham", but which Joyce J had labelled "an organisation in terms of a state of affairs where two or more persons have joined in a common purpose" was audited by MAF Assurance and Risk strategy performance group, resulting in the organisation seeking to give up its approved status and avoid further scandal in 2009.

Although the government officials were likely caught up in the scam unwittingly in initially granting Mr Well's fictional entity approved status, they have so far failed to act on the evidence against Mr Wells who, despite being shown to have used his council position to unlawfully divert public funds for private gain, continued to run the animal welfare services at Waitakere city until he resigned under pressure in December 2010.

While Mr Wells has so far made no effort to collect on his defamation award, Ms Haden can no longer afford the cost of attempting to clear her name in the courts.

CRISIS IN SUPREME COURT OVER OPERATION 8 APPEALS

29 August 2011
Despite the shroud of secrecy which has pervaded most of it, the four year prosecution of eighteen NZ citizens in what began as a terrorist dragnet in October 2007 has publicly taken on the appearance of a Chinese fire drill in the courts. The chaotic and protracted proceedings have, by public appearances, accomplished little that is tangible so far. Interlocutory court rulings have been all over the legal map. Two interlocutory judgments by Chief High Court Justice Helen Winkelmann have been appealed all the way up to, and agreed to be heard, by the NZ Supreme Court. Any trial, if at all, will not occur until at least February 2012.

The two appeals of High Court procedural judgments which the Supreme Court have agreed to hear so far concern the legality of the Police search warrants and the denial of the accused their statutory right to trial by jury.

The appeal against the search warrants was heard by the Supreme Court in early May and the decision is still awaited. The appeal hearing against the judge-alone mode of trial had been set for Tuesday of last week but was inexplicably adjourned until 14 September.

Kiwisfirst confirmed on Friday that the Supreme Court delayed hearing the second appeal because of the difficulties the bench is experiencing in reaching a reasoned decision on the search warrant appeal. Winkelmann J had declared 6 of the 9 land search warrants unlawful in September 2009 and the Court of Appeal subsequently overturned her ruling.

There is some consensus on the highest Court to the extent that, given the legally muddled procedural history, some cohesion in the highest court's ruling is required. But the strong and diverse opinions of the bench on the issue have reportedly created "intense debate" among the judges and already doubled the time of the expected ruling. The long awaited ruling is now anticipated to come out this week reversing the Court of Appeal decision.

These latest developments raise weighty problems for the prosecution and look set to change the complexion of the appeal against judge-alone trial. If the Supreme Court throws out some of the search warrants as expected, much of the prosecution's case is thrown out with it. Even if the remaining evidence is considered sufficient to go to trial, the trial is likely to be shorter, bolstering appeal arguments against one of Winkelmann J's two reasons for preventing jury trial (the trial is likely to be long).

Crown Law's damage control has been in active mode for months. Earlier this year, amid mounting public misgivings regarding the prudence of the prosecution, Crown Prosecutor Ross Burns reaffirmed his determination to take the matter to trial. In response to an Official Information Act request by kiwisfirst, Crown Law claimed implausibly to have spent less than $400,000 so far in prosecuting the 18 accused, in this case which comprises more than 60,000 pages of documents and has been the subject of multiple hearings and appeals over four years.

A small but unspecified number of the accused have already agreed to plea bargains according to Mr Burns. The rest are charged with weapons violations; five with participation in an organised gang.

DISREGARD FOR BASIC LAW BREEDS BROAD JUDICIAL DISCRETION

21 August 2011
In December of last year, Chief High Court Justice Helen Winkelmann issued a secret order denying the 18 accused in the Operation 8 prosecutions their statutory right to trial by jury. Mere publication of this fact brought threats of contempt against the National Business Review and this website, although a quick realisation the judge gave no reason for such secrecy, and had no lawful reason, resulted in a revision allowing disclosure of the judgment effect, but still suppressed her reasons for contravening the statutory right. The reasons included the Judge's opinion that Kiwis juries are too thick to be counted on to make the right decision.

Kiwisfirst publisher Vince Siemer was prosecuted in a show trial by the Solicitor General in early June after Siemer refused to remove the judgment from this site on the basis the judge had no power in law to suppress a criminal judgment.  Indeed, the judge had not attempted to give any reasons, as the law minimally required.

The Solicitor General's prosecution failed to assert what, if any, harm the publication of Winkelmann's order denying trial by jury created. He still sought the maximum term of 3 months imprisonment against the kiwisfirst publisher.

In a reserved decision dated 4 July 2011, Justices Simon France and Alan McKenzie (pictured) found the publisher guilty of contempt. Their judgment declared even unlawful orders must be obeyed until such time they are challenged and overturned, adding it is open to Mr Siemer and any one else affected by the order to challenge it in court.

This proved to be a false judicial claim according to a 26 July 2011 judgment by Auckland High Court Judge Timothy Brewer, who last month threw out an application by public watchdog Penelope Bright seeking to quash Winkelmann J's suppression order on grounds it was an unlawful order. In dismissing the application, Brewer J claimed Ms Bright had no standing in the court. While Ms Bright's rights are adversely affected by the order, she is not a party to the Operation 8 prosecutions.

Once again the NZ Judges have relegated the New Zealand Bill of Rights Act 1990 to the judicial loo, showing it to be a piece of legislation comparable to the North Korea Constitution which guarantees its citizens the right to political assembly and freedom of expression.

Ms Bright plans to file an appeal this week with the Court of Appeal, challenging Brewer J's dismissal as legally incompatible with France and McKenzie JJ's judgment which professed anyone affected by the order can challenge it.

Meanwhile, Mr Siemer's counsel Tony Ellis filed an application for arrest of judgment, noting the Court failed to follow the required summary legal process.  Last Friday McKenzie J apparently ignored this application when directing by Memorandum that Siemer be brought before the Wellington High Court on 2 September 2011 for sentencing. 

Pertinently, a Wikileaks post purports to show the NZ Police notified the U.S. Embassy in late 2007 that none of the 18 accused, originally labelled as 'terrorists', were likely to face custodial sentences.

If the Solicitor General's application for 3 months imprisonment is accepted by the Court, Siemer may be the only one involved in this sordid chapter of New Zealand secret court justice to go to prison - ironically, for nothing more than his accurate reporting that a judge secretly denied 18 New Zealand citizens their statutory right to trial by jury.

WORLD JUSTICE PROJECT CONCEDES ROOM FOR SURVEY IMPROVEMENT AFTER NEW ZEALAND'S HIGH RATING

8 August 2011
New Zealand's first year participation in the World Justice Project's annual survey has disclosed concerns for the organisation's "Rule of Law Index" after New Zealand gave itself high marks in lack of corruption.

WJP Senior Economist Alejandro Ponce (pictured), speaking from Washington D.C., conceded that countries which fail to look for corruption, or conceal it, could rate higher in its current questionnaire than less-corrupt countries where corruption is publicly weeded out. Mr Ponce stated the non-profit WJP is currently considering ways to reduce this survey perception bias, adding this is a priority before next year's survey.

Sixty six countries are currently included in the worldwide survey, which is promoted as providing "a comprehensive picture of the extent to which countries adhere to the rule of law in practice". The survey is the result of extensive consultation at international forums and focuses on whether the following four principles are adhered to:

1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property;
3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

CIVIL COURTS DEEMED TOO RISKY

4 July 2011
Auckland Law Lecturer Scott Optican deadpanned in 2006 that the civil courts have nothing to do with justice.  While expressing the opinion that New Zealand was "not a banana republic", he said back then "it is all about money".

Seems this 'cost' of what New Zealand civil courts have been dispensing in place of justice is finally catching up with it.   Fairfax Media reported last week that civil litigation is down 71% in little over a decade - there were just 997 new defended civil cases taken in the district courts last fiscal year, compared to nearly 3500 in the 1998/99 year.

Far fewer cases get through to a hearing.  Auckland barrister Anthony Grant sought figures under an Official Information Act request last year and wasnotified there were just 248 defended civil hearings from January 2010 to October 2010 - little more than one case a day for the whole of New Zealand. 

As reported last month by kiwisfirst (see left hand column), Mr Grant has recently advocated augmenting legal skill deficiencies on the appellate benches by tapping foreign judges to sit on New Zealand cases.

Lawyers are increasingly vocalizing their discontent with the quality (or lack thereof) of judicial skills and appointments, as businesses and the public at large avoid the courts as if they were plague-ridden.  

Despite increased incidences of company collapses, defaults, dodgy dealings and fraud, New Zealanders are seeking court redress far less. 

New court rules and "reforms" implemented last year have had a further devastating effect which has yet to be reflected in the numbers.  For instance, it is now easier for a judge to use his or her discretion to limit legal proceedings and new rules require civil plaintiffs put up, in advance, the defendants' projected legal costs before their claim will be allowed a hearing.  At the same time, access to legal aid has been severely curtailed for civil cases. 
Combined with the poor quality of legal representation and judicial decisions, civil lawsuits are simply considered too risky and too costly to be pursued.  Moreover, only the wealthiest New Zealanders can afford to launch litigation when the regime requires plaintiffs to deposit the opposing sides' anticipated legal costs into court - in addition to funding their own legal costs - as a condition of obtaining a hearing.

Recent Department of Justice figures confirm this sustained decline in civil cases.  In the nine months of the latest financial year to May, there were 572 new civil defended cases; a trend which could result in a total of just 763 for the year.

Attorney General Chris Finlayson has reportedly expressed concern about the exodus of civil litigants, explaining time spent on reforms to the criminal justice system meant the government had been unable to consider fixing the civil system to provide improved access to quality, efficient and cost-effective justice.   It would be fine if this were true.  Unfortunately, many of the rule and legislative changes which now undermine long-established natural justice and access principles of court justice have come under Mr Finlayson's watch.

According to Fairfax, on the issue of stemming the decline, Finlayson stated, "There has been some talk about a commercial court. It is not a government policy yet because the government has not looked at it, but I am very much in favour of that kind of arrangement."  Again, as reported on kiwisfirst last month, Fiddling Finlayson has been saying this as the courts burned for three years.  However, the problem of "not looking at it" for three years may not be Finlayson. 

Prime Minister John Key considers any move to improve the quality of judicial decisions by setting up specialized courts may be viewed by foreign investors as confirmation by the government of the poor commercial decision making which currently pervades New Zealand's courts.  What Mr Key needs to come to grips with is that this message has already sailed to foreign shores.  It is dire time for the government to address it openly and honestly as the first step in fixing it.

DISHONOUR PROVED

12 June 2011
Judge Michael Lance QC (pictured) is claiming "complete vindication" after his mate, Judge Kevin Phillips, granted him $8,000 costs against the Police last week. This follows the failed prosecution last year of former deputy commissioner of the police complaints authority Lance for wilful damage in scratching a Volkswagon with his keys. The car had partially blocked Lance's driveway in Brown's Bay, Auckland. Three eyewitnesses to the incident came forth.

District Court Judge Phillips criticised the Police for not properly investigating before laying the charge, stating the charges against the once-powerful Judge Lance might not have been laid if they had.

Kiwisfirst broke the story of the Police investigation of Judge Lance in April 2009, a month after the incident.

The two day trial, conducted in the Auckland North Shore District Court in March of 2010, resulted in an acquittal by Judge Phillips immediately after closing submissions were made. The defence included a bevy of lawyers and experts led by formidable criminal defence barrister John Haigh QC. With the help of large displays and private investigator reports, the defence laid siege to the prosecution eyewitnesses, chastising them for claiming they did not recall a cabbage tree trunk which the defence asserted was positioned to block the witnesses' view from the outside café where they were dining.

The Police were prohibited from introducing into evidence their previous investigations of Lance keying at least one other car in front of his residence. Since the latest incident, "No Parking" has been painted in bright yellow on the roadside.

Judge Lance could have simply counted his blessings he escaped conviction, but that is not his style. In 2002, Lance sued Radio Pacific for defamation after a talk show host criticised as "idiotic" one of Judge Lance's decisions to dismiss a case of domestic violence on the grounds the abuse was "human and understandable". He settled the suit for a reported $40,000. A few years earlier, Lance travelled down to Rotorua to preside over a criminal prosecution of his son's legal partner for attempting to pervert the course of justice. The lawyer was acquitted and granted permanent name suppression in the judge-alone trial, despite a taped phone conversation of him attempting to blackmail the lead investigator into dropping drug charges against his client.

When the police later uncovered the Judge's relationship with the accused and sought then-Solicitor General (now Supreme Court Judge) John McGrath's help in holding Lance accountable, McGrath refused to prosecute Lance, claiming it was not in the public interest. McGrath then directed the file be sealed. Though the SG thusly concealed his unlawful conduct, Lance retaliated by viciously attacking the Rotorua police hierarchy for years afterward.

Former Solicitor General McGrath's complicity in covering up Lance's conduct undoubtedly encouraged Lance's subsequent offending and vengeful arrogance. With this pattern of conduct, it is significant that no judge since then had attempted to rein Lance in. Even today, they are content to allow vilification of the Police, the eyewitnesses and the owner of the car (who, it was asserted, may not have noticed his car was "keyed" on three sides before parking it), and Lance to tap into the public treasury, to maintain the myth that Lance is honourable.

McGrath's stealth and efficiency in concealing criminal conduct by NZ judges resulted in his own appointment to the Court of Appeal bench in 2000.

DELAYS BY JUDICIAL CONDUCT COMMISSIONER SUBJECT OF COURT CHALLENGE

7 June 2011
Barrister Francisc Deliu has filed a claim in the Auckland High Court against the Office of the Judicial Conduct Commissioner, seeking writs of mandamus directing the JCC to address a complaint against District Court Judge David Harvey (pictured) filed more than a year ago and the District Court to produce the court transcript which Mr Deliu says supports his allegations of judicial misconduct.

The claim also asks for a ruling that both have acted unlawfully by failing to properly investigate the complaint and produce the relevant transcript.

The five page claim alleges the JCC failed his statutory duty to progress complaints promptly by sitting on the judge's response for over 9 months and by refusing to request the court transcript on the basis he did not want to be seen to "assist" the complainant with his complaint.

The JCC has the statutory power to obtain court transcripts in his investigations and does so as a matter of routine. After initially agreeing to provide a copy, the District Court registrar reneged, stating in a recent letter that no transcript would now be provided. No reason was given.

Despite a statutory requirement to promptly process complaints alleging judicial misconduct and an amendment to the prevailing legislation doubling the JCC's human resources, the Office of the JCC has several complaints as much as 3 years old. Backlogs of complaints increased 600% in the three years to 2010. The next annual report from the JCC is due in August.

Judge Harvey has been the subject of several past and current complaints and was personally sued in 1994 in a case which Harvey won on appeal on the grounds of judicial immunity. Two current complaints against Harvey concern his combative demeanour, including personal threats to counsel without provocation.

WILLYWOOD

31 May 2011
The resurrection tour of disgraced Supreme Court Justice Bill Wilson (pictured) swings back into action with an interview scheduled to run on TVNZ's weekly Court Report program 16 June. Despite the actual interview not scheduled until 14 June, it is being touted as one of explosive revelations, with criminal defence lawyer-host Greg King bragging on facebook he could sell tickets.

Supreme Court Justice Wilson resigned last October amid revelations he ruled in favour of his bank (BNZ) and business partner (Alan Galbraith QC) when on the Court of Appeal. Since then, Wilson has given one interview - to his lawyer's wife, Deborah Coddington of the NZ Herald - where he claimed he had done nothing wrong and chastised the government Ministers for not rushing to his defence. Though Wilson has since told friends he intends to expose the widespread partisanship of his erstwhile judicial colleagues which proved his indiscretions tame in comparison, do not look for the King interview to expose any secrets, despite its billing.

One reason is Wilson has been paid buckets full of money to remain quiet.  In addition to the well-publicised million dollar payout that precipitated his resignation from New Zealand's highest court, kiwisfirst was tipped off that Wilson is also receiving large government superannuation payments. However, in response to an Official Information Act request, the government has refused to disclose the amount, citing privacy as the reason why taxpayers cannot know how much of their money Wilson is getting.

Notwithstanding this ongoing largesse, Wilson understands his agreed silence cannot be enforced since confidentiality agreements are not enforceable to cover up criminal activity. The former judge has been reservedly astute in playing this card. Consequently, judges and his Queen's Counsel mates are falling over Wilson to placate him and bring him back into the fold. Powerful QC's such as James Farmer and Colin Carruthers reportedly have his ear, but his relationship with one-time great mate (Chief Justice) Sian Elias is by all accounts still strained. While Elias was as supportive of Wilson as practical through the ordeal, it still rubs at Wilson that Elias' was guilty of much more egregious offending, yet has come out above the fray.

Meanwhile, Green List MP Dr Kennedy Graham's bill which would require judges disclose their pecuniary interests is in Committee, bogged down by political infighting and recent events in Christchurch.  Attorney General Chris Finlayson has proposed an alternative legislative overhaul to the Judicature Act, quietly telling judges on the powerful Rules Committee that they will be allowed to write what effectively will be a Clayton's Act as to how they conduct themselves if he has his way. This approach fits with Prime Minister John Key's attempt to promote New Zealand as a corrupt-free zone for international investors, along the line of Singapore. The Prime Minister has repeatedly told his ministers that exposing judicial corruption is off limits as it will undermine public confidence.

New Zealand is virtually unique in the world's democracies in refusing to consider corruption exists or implementing processes to look for it. As kiwisfirstreported twice in the last two years, Transparency International New Zealand receives 1% of its funding from memberships and more than 90% from the NZ government on the proviso it focuses its work off shore on the smaller Pacific island nations. Several of TINZ's New Zealand directors are government employees who also run consultancy firms which specialise in obtaining government grants for their clients.

POLICE CONCEDED MOST EXPENSIVE PROSECUTION IN HISTORY IS LIKELY TO RESULT ONLY IN FINES

9 May 2011
In a Wikileaks disclosure posted on 28 April 2011, it is revealed at cable "7" that New Zealand Police advised the U.S. Embassy in Wellington in late 2007 that the 18 accused in the Operation 8 "terror raids" are likely to face fines not exceeding $4,000.

This revelation is the latest in a massive prosecution which has since cost taxpayers over $13 million ahead of trial and is the subject of a United Nations complaint against the New Zealand Police and blanket suppression orders by the New Zealand courts.

In related action, Crown Law has claimed to have spent over $100,000 prosecuting kiwisfirst publisher Vince Siemer for breaching suppression orders relating to these secret court proceedings. Siemer's trial for publishing High Court Judge Helen Winkelmann's December 2010 order denying the accused their statutory right of trial by jury is set to commence in the Wellington High Court on 8 June 2011. The Solicitor General David Collins is asking for Mr Siemer's imprisonment notwithstanding the fact that even Crown Prosecutor Ross Burns has stated suppression cannot be justified in law and the accused in the case being reported on by kiwisfirst are realistically facing fines according to the Police.

Having been bankrupted by the New Zealand Courts, Mr Siemer is on legal aid. The cost of the trial is expected to cost taxpayers another $70,000 to prosecute and half this again to defend. This is assuming no appeal is necessary.

THE PURGE OF INCONVENIENT LAW

20 April 2011 
The denial of trial by jury to the eighteen Operation 8 defendants by judicial decree is now before the New Zealand Supreme Court.  Though the New Zealand Bill of Rights Act, Judicature Act and Crimes Act all exhort the right to elect trial by jury, do not hold your breath that the Supreme Court will uphold the law and reverse the lower court decisions.  
 
At the fore is the ease to which the still infant Supreme Court has repeatedly cast aside statutory guarantees to trial by jury in the most spurious fashion.  The lower court reasoning that a jury would use improper reasoning in its decision-making against these 18 defendants sounds too Orwellian to stand in law.  But the Supreme Court has been masterful in creating fictitious reasons why such laws have not mattered in the past.
 
Variously the Supreme Court has stated issues are too complex for juries, trials too long or, simply, made a broad reference that trial by juries are not fair to juries or judges, or have been denied in some case in some other country. 
 
The seminal right to jury, which has been a linchpin in the English legal system for 800 years, is being destroyed by judicial fiat in New Zealand.  If you think the effects will be benign, or even positive, consider the following Supreme Court decisions.
 
In 2009, the Supreme Court, when prohibiting trial by jury in Wenzel v Queen, surreptitiously tagged on an irrelevant opinion to obscure contravention of clear statute when it ruled "The proposed grounds of appeal are quite hopeless. First of all, it is an impossible argument that a fair trial requires a trial by jury."   The appeal did not state "fairness" as a ground: it relied upon Bill of Rights Act and Crimes Act guarantees.  If this was not troubling enough, the Supreme Court relied upon a Canadian case, R v Lee, where the defendant did not show up for his jury trial, and then was denied one, as grounds why its decision to prohibit jury was consistent with the Canadian Charter of Rights and Freedoms.
 
Wenzel was facing 7 years in prison.  In the subsequent judge-alone trial, he was sentenced to 5 years by District Court Judge Epati.   In later overturning the verdict and ordering a new trial, the Court of Appeal pulled no punches in stating the Judge had failed fundamental principles of fairness and logic in finding Wenzel guilty.  Equally troubling, the Judge dismissed charges against the lawyer who was Mr Wenzel's co-defendant and gave that lawyer name suppression without justification and without providing reasons.   Fairness by judge-alone? 
 
In Solicitor General v Siemer last year, the Supreme Court covered up the fact that the High Court ignored Mr Siemer's election to trial by jury by quashing the judgment and ordering a new conviction and penalty of three months prison, thereby meeting the Bill of Rights Act threshold for judge-alone trial.  Proving the judges on the highest court are eminently more efficient at least than juries, the bench declared a new trial was not necessary because the Solicitor General's unsworn submissions from the bar were sufficient to confirm guilt.
 
Then there is the case of Gregory v Gollan, where the Supreme Court, in 2009, reaffirmed the lower courts were correct to use discretion to deny Mr Gregory's "application" for trial by jury.  Gregory's counsel responded to the Supreme Court that an "application" was not required and was not made.  He asserted Judicature Act, section 19 A(2) gave Gregory the direct right to "require" a trial by jury.  Because the Supreme Court's actions were such a blatant contravention of the rule of law, Counsel requested Attorney General Chris Finlayson intervene in the public interest.  Finlayson's office responded simply that judicial independence effectively means judges can pick and choose which laws they want to apply in New Zealand.  For its own part, the Supreme Court refused to be pulled into defending its seemingly lawless decision and simply ignored the evident inconsistency brought to its attention.
 
We may not consider this issue important now, but there are profound reasons why trial by jury is central to egalitarian legal systems.  History will judge New Zealand jurisprudence on this issue of trial by jury.  And history has shown us that public complacency is an elementary factor in degradation of the rule of law by those in power. 

LOSING THE PLOT

12 April 2011
The Urewera 18 have applied to the Supreme Court against the Court of Appeal's rejection of their right to trial by jury. 

Citing no right to appeal interlocutory judgments ahead of trial, the Crown prosecution opposes the Supreme Court considering the matter until at least after the scheduled trial in August, if at all.  
 
In what is already the most expensive prosecution to taxpayers in New Zealand's history, the result will be a mistrial if Crown argument is accepted and the Supreme Court determines post trial that denial of jury breached New Zealand Bill of Rights Act and Crimes Act guarantees.  Strategically the Crown's hope is that a fait accompli on judge alone trial will bolster the economic pressures on the Supreme Court upholding the lower court's imposed discretion to deny this statutory right.
 
Meanwhile, it has been reported in the Whakatane Beacon that Tuhoe will back a request to solicitor-general David Collins later this month to drop all charges against the 18 defendants.  After the September 2007 raids held many without bail on terrorism charges, public protests forced Mr Collins to reduce the charges to various weapons, drugs and gang charges.   It is reported Tuhoe leader Tamati Kruger said iwi would endorse the request to drop charges, sponsored by lawyer Moana Jackson and Auckland University law faculty professor Jane Kelsey, adding "These people will never, ever get a fair and just trial."
 
The original Police affidavit used to obtain the warrants to make the arrests which grabbed world headlines 3 ½ years ago suggests several defendants were charged because of their personal association with their co-defendants or for using offensive language in describing Police.  Despite a court-ordered public suppression order of this police affidavit from day one, Auckland High Court Judge Helen Winkelmann read out key phrases for the TV cameras in court when revoking bail against one of the defendants Jamie Locket a week after the arrests.  Those sensationalist excerpts, that "white men are going to die in this country" and "I am going to go commando", were not given any context and were not representative of the police affidavit.  Talk radio was ablaze in the days afterward, with many advocating reestablishment of the death penalty.
 
Three years later it was Winkelmann who denied 14 of these 18 defendants their statutory right to trial by jury on grounds jury members will likely use "improper reasoning processes" in reaching a decision and the trial is expected to be lengthy.  As with the affidavit, the Judge suppressed her ruling from the public.  It is this decision which the Court of Appeal upheld last month and the Supreme Court is now being asked to consider.

BLACK ROBES, WHITE LIES

31 March 2011 
Okay, Justice Hammond ruled in yesterday's record $920,000 Court of Appeal ruling against kiwisfirst publisher Vince Siemer, "We have not had our attention drawn to any worse case of defamation in the British Commonwealth, and our own researches have not disclosed one."
 
The judge who wrote New Zealand's handbook on judicial conflict of interest would know.  Hammond, after all, was the trial judge in 2001 who appointed Michael Stiassny, the alleged victim, receiver of the debt-free company with $175,000 cash at the centre of the case, and to whom Stiassny reported -  "We had begun disbursing monies to unsecured creditors on the basis of our understanding that funds would be provided by shareholders to support ongoing trading costs as provided in our cashflow forecasts.  We now have no such assurance and accordingly no further funds will be released to pre-receivership creditors".
 
Judge Hammond had been formally requested to disqualify himself in Stiassny's lawsuit against Siemer.  When Hammond refused, Siemer took the refusal to the Supreme Court.  Mr & Mrs Siemer both provided affidavits to the court swearing Stiassny bragged about Judge Hammond being his good friend and the Judge was a material witness to Stiassny's alleged accounting misrepresentations.  In response, His Honour provided a statement to the Supreme Court claiming he had no conflict because his previous involvement was before Stiassny became involved.  When evidence was provided to the Supreme Court showing His Honour had lied - he not only appointed Stiassny but had dealt with Stiassny in the case over seven months - the Supreme Court issued this Minute.  Any lawyer will tell you the most likely reason the Supreme Court would issue a Minute rather than the appropriate 'judgment' was to keep evidence of Judge Hammond's material deceit out of the official record.  Proving justice is blind, the judges on New Zealand's highest court publicly stood by their orginal 'judgment' that "bias, actual or apparent, could never have been responsibly alleged".

Same with the Stiassny defamation claim.  Astute observers would have noticed the Court of Appeal earlier prohibited appeal against the defamation judgment, allowing challenge to only the quantum of the award.  Why did it limit the statutory right of appeal?  Could it be there is something the court is hiding? 

The lynchpin in the defamation claim had always been whether Siemer was lying about the most powerful insolvency practitioner and employer of judges in New Zealand falsely labeling a solvent company insolvent.  Understandable.  If evidence existed that Stiassny wantonly labeled a solvent company insolvent, his professional reputation would be justifiably hammered.  So forget about what Siemer says.  The honourable Court of Appeal has declared Siemer is maliciously telling falsehoods and Stiassny is the poor victim - after preventing challenge of the defamation finding which was the product of a closed hearing where only Stiassny, his lawyers and the High Court judge met.  That is right: the 'trial' itself was ex-parte.  Rather, look at the two separate handwritten file notes of Stiassny's lawyer Robert Fardell QC six months into that receivership (note that "Ferriers" refers to Stiassny's insolvency company Ferrier Hodgson).  
 
Long before his judgment yesterday, Justice Hammond was the subject of a Judicial Conduct Commissioner complaint over his alleged conflict of interest in this case.  Now that Hammond has replaced Geoffrey Palmer as President of the Law Commission, expect the JCC, who has been sitting on the complaint for two years, to claim lack of jurisdiction.  As any law-abiding citizen, Siemer has nowhere else but the Courts to turn for redress. 

Such is justice in the New Zealand Courts.  Anyone who believes this is an unusual situtation can be forgiven for not knowing how the courts routinely and secretly operate here.  Perhaps it takes the "worst case of defamation in the British Commonwealth" to open the public's eyes.