IRREVERENT JUSTICE GLAZEBROOK
16 April 2014
Lack of accountability has its privileges. But being a New Zealand Supreme Court judge is to be above any law, as Justice Susan Glazebrook (right) proved last week in dismissing a recall
application by disenfranchised lawyer Tatsuhiko Koyama, and doing so through an administrative email, without reasons.
Lord Bingham, former Chief Justice of England defined the Rule of Law as application of law rather than discretion, highlighting the lynchpin role of judicial officers as stewards of the law or, conversely, the deacons of despotism.
It all starts out innocently enough. Judge Glazebrook, who has been on the Supreme Court for a year, is already known for dismissing applications to the Court privately, and without reasons, but last week she gave a hip-check to her dome-occupiers in purporting to dismiss Mr Koyama's application without panel assent. Section 27 of the Supreme Court Act 2003 - one of the few laws which heretofore constrained Supreme Court judges' conduct - requires a minimum 2 judges to dismiss an application.
Mr Koyama had alleged judicial breaches in the recall, which included Judge Glazebrook. This raised further concerns surrounding Ms Glazebrook's unlawful dismissal of the application through a private email which not only hid the ruling or reasons for it but obscured the application itself. The email was sent out to the parties through the generic Supreme Court email address and was unrecorded. It included an "
attachment" which was nothing more than the cover page of Mr Koyama's application with Glazebrook's refusal and signature scribbled across it.
Elsewhere in the rabbit hole, Humpty Dumpty came out of his chambers to declare a victory for the rule of law. The "independent bar" in New Zealand called Glazebrook an insightful judicial leader and the New Zealand legal practice manual
McGechan on Procedure commenced a new chapter on this 'evolving law' which now allows judges to follow Judge Glazebrook's example - but only to save wasteful expenditures on court scribes and parchment, and never for the sole purpose of keeping court judgments (even lawful ones) secret.
If you became confused as to where reality fused into fiction in this article, welcome to the land of milk, sheep and honey.
SKY CITY CASINO COULD PAY THE BILL
22 March 2014
While hardworking New Zealanders go about their day-to-day lives, struggling to pay the bills, those weaker souls, many of whom have lost faith, gamble away their milk money at Sky City Casino. Criminals launder their criminal proceeds in the cozy confines, while the house flips a buck or two to the local politicians and bureaucrats.
Few take notice or care to know. Collective apathy is no secret in Middle earth.
Last week, Transparency International New Zealand gave a speech at NZ Treasury where they recorded New Zealanders have "incredible complacency" regarding actual corruption. The speech by TINZ director Suzanne Snively requested attendees - almost all government employees - "post the 'corruption perception index' (which rates 'perceived' corruption in New Zealand low) in your kitchens and staff rooms". The perception index, partially funded by the Office of the Auditor General, who also partnered with TINZ in conducting the survey, rated the Office of the Auditor General the "pillar" in New Zealand with the highest integrity.
Meanwhile, in the real world, watchdog Penny Bright is increasingly providing actual anecdotes of corruption, adding "you can't make this shit up". She recently initiated a petition to Parliament seeking an urgent inquiry into why Auditor-General Lyn Provost did not disclose she was a shareholder in Sky City while refusing to conduct an investigation into law enforcement failures leading to the increased risk of money-laundering at Sky City.
Not long ago, the public largely did not want to believe Ms Bright's message and the corrupt bureaucracy considered her shoestring advocacy for honest governance was best avoided. Auckland Council looked away from her very public refusal to pay her property rates for years, not wishing to allow her a platform to trumpet her refusal rested on the Council's refusal to reveal where the ratepayers money was being spent (the Council refused on grounds the expenditures are commercially sensitive).
Last year, Ms Bright ran for mayor of Auckland on an anti-corruption platform and garnered 12,000 votes despite her campaign spending less than some politicians carry in their pocket - under $4,000. After 20 years of doggedly pulling skeletons out of unnoticed closets, this tall poppy now needed clipping in the uniquely New Zealand style.
Did you know this woman who exposed the Office of the Auditor General covering up a 4 million dollar discrepancy in the Auckland Council annual report is a nutter? You must realise this woman who helped expose the current mayor for taking comp rooms from Sky City to comfort his mistress and laundering campaign money through a trust is only refusing to pay her rates to make every other ratepayer pick up the slack? Do you not realise that everything she does is all about her?
If this propaganda campaign is working, shame on the media for allowing it and shame on all New Zealanders for not demanding better.
The issues Ms Bright has been raising for years have never been discounted on the merits. This woman truly does her homework.
Last month Ms Bright was in court over unpaid water bills to the defunct Auckland City Council organisation Metro Water Limited. High paid lawyers for Watercare Services Limited filed an affidavit claiming to be the judgment creditor, neglecting to provide the judgment the dearly-departed Metro Water Limited had obtained. Watercare also requested the court ignore its application was out of time. After a two-step and a dosey doe, the judge was left to ponder how many appearances to schedule.
Damn those tall poppies who clog up the wheels of progress and efficiency.
Meanwhile, back at Sky City, business is good. Perhaps, just perhaps, the Sky can pay Ms Bright's rates bill to keep her out of court. At roughly $29,000 for back rates, penalties and legal costs, few gambles taken to keep up the perception of low corruption are a safer bet.
RAMPANT CORRUPTION STINGS TRANSPARENCY INTERNATIONAL
2 March 2014
'Corruption destroys lives and communities' is its motto and its publicly advertised mission is to promote transparency which lays bare the conflicts and bribes which suck the soul out of all countries to varying degrees. But Berlin-based non-profit Transparency International is better known for telling the world which countries are doing a good job at combating corruption and which ones are not through its annual 'perception index' which rates 177 countries from 1 to 177.
Media organisations such as Forbes rely on Transparency International's findings in promoting its own world perspective.
In its own 'perception', Transparency International ranked New Zealand lowest (along with Finland) in corruption - and its local chapter is the non-profit's golden child and keeper of the faith. In contrast, New Zealanders question a charter which received almost all of its funding from the New Zealand government, routinely turned away new members - individual memberships have been relatively constant at 50 - and declared its "over-arching principle" is it "will not be involved in investigating or exposing individual cases (of corruption)".
Finally, a dose of reality has set in, with revelations of rampant corruption within the New Zealand chapter oozing from its opaque façade. Berlin has known since early December that NZ chapter director Suzanne Snively was running a fraudulent company trading on the Transparency International name to sell her consulting services to unsuspecting foreign companies seeking trade with New Zealand. They have done nothing but cover it up. Triple dipping Ms Snively is also a contractor to the New Zealand government and her TINZ salary is funded by the government.
This week it was revealed that another Transparency International New Zealand director Michael Vukcevic falsely claimed in his CV that he had a law degree and other qualifications in order to get an appointment in 2012 to promote New Zealand's bid for a free trade agreement in the Middle East.
Yet another TINZ director Claire Johnstone was a government official running a private consultancy business which promoted her ability to "access grant funding from government for many of our clients". Her husband Ash Johnstone, a serving NZ police officer, was profiled on the company website as in charge of conducting security background checks for private clients.
It came to light last year that at least two directors of TINZ made repeated visits to the Ministry of Justice in Cambodia seeking personal fortune on the door-opening coattails of Dame Sylvia Cartwright who was one of two international judges appointed to the Extraordinary Chambers of the Courts of Cambodia, filling a vacuum in the war ravaged country.
Fraud examiner and former police prosecutor Grace Haden, who was denied membership in TINZ and consequently launched her own "Transparency New Zealand" is not surprised by the corruption or cover up by Transparency International. "They don't want to know the reality because it differs from the myth they promote." Late yesterday, Ms Haden sent out an open letter offering Transparency International her services to verify degrees and credentials of its directors.
Transparency International Berlin refused comment other than to suggest inquiries be directed to the New Zealand chapter's "ethics committee". Apparently TI corporate are too busy getting ready for a razzle dazzle. The homepage of their website implores "VOTE for us in the Honesty Oscars for Best Visual Effects for the Corruption Perceptions Index infographics that we publish."
Meanwhile, others within TINZ have expressed concern that if Snively goes, so may the government funding. This funding includes the chapter's "Cornerstone Platinum Member" The New Zealand Auditor General Lyn Provost who, it was revealed last month, refused to investigate police failings in respect to money laundering at the Sky City Casino at a time she was a shareholder in Sky City. Ms Provost advised her powers of inquiry were 'discretionary', stating the investigation would be too costly in this case.
All of this would be big news anywhere else, but not in New Zealand where Ms Snively's husband is the former chief executive of the government-owned national broadcaster TVNZ.
Sadly for New Zealand, most New Zealanders like the Transparency International myth and prefer news of celebrity sightings not be interrupted by reality.
21 February 2014
At least forty appellants to the Court of Appeal were denied a hearing in 2013 because they could not afford to pay into court the anticipated legal costs of those opposing their appeals, as a condition to having their appeals heard.
The actual number is not known because the Ministry of Justice refuses to collect statistics and the regime is "off the court record". The Registrar directs the financial impediments to court access by email and unrecorded letters.
It is called "security for costs" and it is the "well established" way of selling justice in New Zealand - this according to at least 10 New Zealand Supreme Court leave refusals issued in 2013 alone.
In contrast to the New Zealand High Court where
only poor people are required to pay the anticipated costs of opposing counsel as a prerequisite to obtaining a hearing, the Court of Appeal has a regime which sets standard requirements that security be paid. The typical security order at the Court of Appeal is between $5,880 and $11,760. Under Rule 35(6) of the Court of Appeal (Civil) Rules 2005, the Registrar - a former police officer who is currently being criminally prosecuted for assault and battery - has absolute discretion to "(a) increase the amount of security: (b) reduce the amount of security: (c) dispense with security: (d) defer the date by which security must be paid."
Appellants who disagree with a bent cop being the legally unconstrained ticket-clipper of New Zealand's highest court by right have one shot to make their best written argument to the wizard behind the curtain if their view differs from the bent cop. According to New Zealand Supreme Court fiat last year (SC2/2013  NZSC11), there is no right of appeal and hearing against the almighty and powerful Registrar. The only recourse is to seek a chambers ruling (i.e. a legal crapshoot) from a single Court of Appeal judge who (presumably) reads the file and makes a decision on entry to the land of OZ from the undisturbed confines of their favourite pub.
This is New Zealand justice at its finest. The "enabler" for New Zealand is those who fall victim to the endemic corruption, who go away convinced they simply were unlucky in a court system which otherwise values equal access. The numbers are huge but largely unnoticed in this land of the flightless birds. Sitting on the remote heel of the earth does have this advantage. But, also, the illusion makes us feel good despite the costs - namely, that we are a step above the corruption in America and Australia which is allowed to be reported. We don't give a damn that all New Zealand's intrepid reporters have left for those safe confines. We still have the reporters who keep us abreast of celebrity sightings and whale beachings, so all is good.
1 February 2014
Her temperament may be more fiery than her red hair but Clare O'Brien's strength as an apparatnik gatekeeper of the New Zealand Court of Appeal has made her a darling of the judges if not her staff. But it is her personal sense of power and entitlement which appears poised to raise fears among the law-respecting citizenry.
Registrar O'Brien (pictured) has singularly resurrected the pre-Taito days at the appellate court, a 10 year period where the Registrar exerted arbitrary power to dismiss as many as 1,500 criminal appeals without hearing - until the Privy Council decried it a systemic breach of due process in the 2002 ruling
Taito v Queen UKPC15.
New Zealand ridded itself of the Privy Council the following year and formed the Supreme Court out of the Court of Appeal judges who had been deemed guilty of the abuse.
It was not long after formation of the Supreme Court that business as usual returned to the Court of Appeal. Simply put, NZ Judges prefer not to deal with appeals which disclose judicial impropriety at the trial level - and indeed never find such an event. They trust the Registrar to save them the discomfort of having to look at such evidence where possible. On this Ms O'Brien has hit her stride, routinely usurping powers which by statute are the strict purview of judges. One example from last year; she refused to allow a single appeal against any bankruptcy order - preventing appeals by Barrister Barry Hart, lotto winner Malcolm Rabson, bank critic Richard Guy and private prosecutor Graham McCready, among others. In three of these cases, evidence accompanied the appeal grounds that the trial court had been misled. McCready's proceeding is hidden by comprehensive suppression orders which he has repeatedly tried unsuccessfully to have lifted.
Last week, McCready told a
Sunday Star Times reporter that Clare O'Brien would be the next target of his New Zealand Private Prosecution Service for assaulting a process server last September. The story promises to be sensational because undiscovered video said to be in the Crown's possession purportedly shows O'Brien assaulting process server Richard Creser - but the police have laid charges at O'Brien's request against Creser!
Moreover, Ms O'Brien's statement to Police admits she shoved Creser, whereupon Creser immediately stated he would file a complaint to police (he did not do so). After this provocation by O'Brien, she claimed "I felt him pushing my arm". This was the assault and battery charge she took to the police after consulting with the Court's 'legal advisor Roger Howard'.
Police did not release Ms O'Brien's statement until last week, more three months after filing charges and missing two self-imposed deadlines for its disclosure. They have to date failed to acknowledge requests for the suspected video.
Mr McCready says O'Brien and the Police have a huge problem aside from the video. He says he has never heard of a criminal prosecution where the alleged 'victim' has admitted to initiating the assault on the alleged perpetrator and walked away with admittedly no injuries. O'Brien's statement is not even clear on how she was allegedly assaulted. McCready notes O'Brien is a former police officer, possibly explaining why her admission of assaulting someone has provoked the contrarian response from the police prosecutor.
Meanwhile, Mr Creser is a director of the New Zealand Private Prosecution Service and had served civil papers on behalf of
kiwisfirst publisher Vince Siemer, all of which provides distraction as to various motivations on both sides.
That the NZ Police have chosen to prosecute an assault charge on the ambiguous statement of the admitted and uninjured perpetrator of the assault should make the private prosecution for assault and battery against O'Brien relatively easy for McCready, who last week suffered a setback in prosecuting Auckland Mayor Len Brown for bribery when a District Court judge ruled the approval of the Attorney General was required.
Other criminal charges may soon follow against O'Brien. Her statement to Police reveals she was prior aware Mr Creser sought to serve her in a claim brought against her personally and that she was intent on evading such service. Yet it is the appearance of collusion with High Court staff to earlier prevent filing of the claim which has more worrisome rule of law implications. O'Brien admits in her Police statement she engaged in discussions with the High Court registry which then rejected filing of the claim against her, until Justice Ron Young ordered the registry decision reversed. Her police statement "I feel vaguely threatened" by Mr Creser in these circumstances particularly underscores O'Brien's sense of self-entitlement, unconstrained by conscience or law.
In the looking glass that is the New Zealand justice system, obstruction of justice and a malicious prosecution are expected by O'Brien to be gratuitously granted her by the High Court Registrar and Police in the same vein she protects the Court of Appeal cabal. So far they have done so. But recent indications are the Police are looking for cover. They have come to lament what they knew from the beginning; that their best evidence proves they have criminally charged the wrong person to advance a political goal, setting the stage for further public embarrassment if they take it to trial. Creser early on indicated to Police he had a corroborating witness and that he would elect trial by jury. Police now fear McCready's involvement will impede their attempts at damage control, forcing them to seek extraordinary measures.
It will be interesting to see what court suppression orders keep this corruption scandal out of the media.
12 December 2013
Those fearless advocates of the law have gone the way of wigs in the New Zealand courtroom, but the new breed which have replaced them present a risk to the rule of law itself.
Take, for example, the increasing practice of the New Zealand Supreme Court issuing statute-defeating decrees, with the obedient legal fraternity tripping over themselves to win favour by quickly endorsing the unreasoned and unsupported edicts.
How bad has the problem become? In March of this year, the Supreme Court decreed obiter in Siemer v Stiassny NZSC 11 that the direct right of review against chambers judgments of the Court of Appeal provided by s61A(2) of the Judicature Act 1908 does not apply to chambers judgments which order security for costs. "Chambers judgments" are private rulings, commonly made by one judge without hearing. "Obiter" is the judicial equivalent of a flippant remark; legally accepted as not relevant to the decision in the judgment, as well as unreasoned. In this case, the Supreme Court was forced to admit the comment was obiter when it was challenged by recall application.
Nonetheless, this admission did not hamper the speed by which
McGechan on Procedure (the lawyers' practice and rule manual in New Zealand) and Crown Law endorsed the Supreme Court fiat as the law of the land. This was confirmed earlier this month in the Supreme Court leave hearing against a security order of Court of Appeal Justice White in
Reekie v Attorney General SC47/2013, when the Crown Solicitor filed a Memorandum conceding the statute-whacking edict was obiter and unreasoned but still the law of the land because
McGechan cited the decree and the Crown agreed with its unstated logic.
The rule of law affront goes beyond any one page unreasoned obiter edict being endorsed as the law of the land without any hearing or debate. In this case the Judicature Act passed by Parliament makes no distinction between chambers judgments ordering security for costs as defined by s61A(1) that, in turn, are reviewable under s61A(2). The Supreme Court edict therefore negated an evident statutory right of review enacted by Parliament. We can only guess the contrived distinction lies in security chambers judgments routinely endorsing the Registrar's order that security must be paid even though such orders are perfunctory administrative decisions which cannot consider merits.
More vigilant societies than 21st century New Zealand have been duped by the Orwellian practice of retroactive chopping and changing the unassailable laws fixed to the barnyard door. Nazi Germany, and more recently Fiji and New Zealand, understood the importance of controlling criticism of authority to ensure the smooth erosion of laws. A proactive independent bar and a vigilant free press have long been considered the greatest threats to governments abusing rule of law principles and civil rights. On this, it is telling in NZ that (1) Attorney General Chris Finlayson publicly lambasted New Zealand's most senior Queen's Counsel Tony Molloy for criticising the general poor quality of judicial decisions in New Zealand - comparing the distinguished Dr. Molloy to a "vexatious litigant" and demanding Molloy relinquish his queen's-counselship if he could not talk nice - with the dutiful Law Society fining Molloy $1,000 for the pre-eminent jurist's public service, then (2) the NZ press dutifully reported the episode as if the junior and political Finlayson had disciplined an impetuous child.
In its "National Integrity System Assessment" this year, the New Zealand government-funded Transparency International chapter found
"The judiciary meet high standards of independence, integrity and accountability" based upon
"interviews with the Chief Justice, President of the NZ Bar Association and the New Zealand Law Society Chief Executive", proving opinions from the fox - with chicken feathers in his teeth - as to the safety of the hen house he is guarding are to be accepted by the gullible public. Remember it was only in 2010 that former Bar President James Farmer attempted to quell the Justice Bill Wilson scandal which he opined in a private email to Sir Edmund Thomas could
"bring down the Chief Justice if probed", unapologetically stating he put loyalty to the Chief Justice before any interests in the legal system of New Zealand!
The NZ legal fraternity have always been the bastion of genteel subservience to authority. However, particularly in recent years the Law Society has cracked down on lawyers critical of the system - the symptom or result being the law evolved to where defamation damage awards now eclipse those of other torts. Assault, misfeasance and false imprisonment rarely get more than $10,000, while defamation awards get 25 times that amount. Perhaps worse, defendants accused of defamation routinely are denied the right to defend themselves.
Lawyers in New Zealand have done the career assessments. Barrister Evgeny Orlov was struck off last month for criticising Justice Rhys Harrison as racist. Fair enough, until one looks at the evidence that other lawyers have made similar allegations about Harrison and Orlov had evidence to support his claim, but the tribunal hanging him by a 4 to 1 vote refused to consider his defence of truth or fair comment.
For the last two years, Chief High Court Justice Helen Winkelmann has shown an unhealthy interest in prodding the Law Society into briefing her on their investigation of Dr Frank Deliu for criticising her predecessor Anthony Randerson J. Three officers of the Law Society (John Marshall, Jonathan Temm and Mary Olivier) have obediently briefed Her Chiefness over this period notwithstanding statutory requirements of confidentiality governing their investigations.
The New Zealand legal society considers its mission is to cover up judicial misconduct. They largely believe the propaganda that PM John Key has stated publicly; that exposing judicial corruption will cause the public to lose faith in the judiciary. And the mainstream press have stopped trying to report it because these stories never make it past the press lawyers. The sad reality is the sheepish lawyers and sheepish press make us all sheep through policies which characterise useful criticism of corruption as merely vexatious. Our collective intelligence is defined by that which we are not allowed to know. It is the true cost of New Zealand leading the world in freedom to express uncontroversial views.
A LETTER TO MUGABE
30 November 2013
Transparency International New Zealand's annual general meeting last week filled the 200 seat room at the Archives in Wellington ? at least to hear Justice Minister Judith Collins and Dame Sylvia Cartwright speak. The preceding business meeting, where the non-profit chapter's rules were changed and it took thirty seconds to find a non-director willing to endorse the year's financials, saw around 50 attendees.
Hugs and accolades abounded for New Zealand's number one ranking in the "corruption perception index" (tied with Denmark and Finland). The tight membership of largely government contractors and employees shared their love of quoting the index, with every country mention including their CPI index in the same breath ? Sri Lanka was '79', Papua New Guinea was '150' and Cambodia was '157'.
Justice Minister Collins was the first speaker, predictably crowing about all the good work the current government was doing to make the NZ courts more transparent with the proposed Courts Act before Parliament. But when she sought TINZ's help in New Zealand's ratification of the ten year old United Nations Convention Against Corruption, she at once underscored the failings and opportunities with TI's CPI. New Zealand's historical position of refusing to pass anti-corruption laws as unnecessary apparently does not play as well on the international stage as it does with the local flock. Currently no New Zealand judge has gone to prison and TINZ was in lockstep with Collins in wanting to keep it that way. Perhaps if TINZ could rank New Zealand higher than #1 and Helen Clarke could push from the inside, the United Nations may see it New Zealand's way.
The Minister clearly felt uncomfortable when former banking ombudsman Liz Brown gave her a parting gift and congratulated her and the government after joking about the irony in TI chapters around the rest of the world being the bane of their governments.
Wellingtonian of the year Suzanne Snively also promoted the New Zealand model of being funded almost entirely by the NZ government and the TINZ membership comprised of bureaucrats and those who feed at the bureaucratic trough. Snively, who is the paid director of TINZ as well as managing director of a company More Media Ltd which contracts to the government, announced she receives many comments from other chapters about how lucky the New Zealand chapter is in not having to get grants from private donors to support their mission.
LinkedIn profile, Ms Snively promotes her consulting wares, pitching as 'Executive Chair' of the fictitious company Transparency International New Zealand Limited (the non-profit charity is 'Transparency International (New Zealand) Incorporated") "New Zealand has the potential to be an exemplar to others, demonstrating how this can improve business profitability through lower cost of doing business in overseas countries, better access, lower cost of capital and for those listed companies, a higher yeilding (sic) share price."
On the wall of the AGM was a large A-3 posting of "ROLL OF HONOUR, External Advisory Group Members" comprised, as it were, of chiefs of government in New Zealand.
The next speaker, Dame Sylvia, spoke about how lucky we are compared to the corrupt Cambodia where she is currently posted as a judge of the Exemplary Chambers in the Courts of Cambodia (ECCC). She spoke of the bribery and influence which she said allows Prime Minister Hun Sen to give government contracts to all his mates and she decried him as a puppet of the Vietnamese. It soon became evident the TINZ directors who repeatedly visit Cambodia are getting the short end of the stick. Knowing Sylvia gets them in the door but does not have the tangible coattails some feel her position should afford
Director Murray Petrie talked about "the last time I was at the Ministry of Justice in Cambodia" and Director Snively was thanked by Dame Sylvia for bringing her a loaf of bread. However,
Kiwisfirst could not get an answer to the query of how many members and directors of TINZ have financial interests in Cambodia, leaving any estimate to be gleaned from the less than transparent financial report for 2013 which had under "Other Expenses" $81,107 in "Events, conferences, travel and other expenses".
Only in such a transparent organisation would you find almost 35% of their outgoings listed as 'other expenses' under 'other expenses'.
Message to Robert Mugabe: Your country Zimbabwe is currently 166th in TI's Corruption Perception Index. But if you agree to fund your local chapter and restrict membership to government officials as in New Zealand, your "perception" as less corrupt is a foregone conclusion. Come to New Zealand and this chapter will show you how it is done.
7 November 2013
'My name is Graham and I am an alcoholic' is something Graham McCready says at least once each day. This pensioner and "Wharfie's son from Thorndon" - as he likes to refer to himself - rarely misses catching a bus into Wellington for his daily
Alcoholics Anonymous meeting. Given his successes at exposing failures in the NZ police and Crown Law, and recent run for councillor in
Wellington's Eastern wards, it is a wonder how he finds the time as well as a testament to his convictions.
Of late McCready has become well known as the private prosecutor given the green light by an Auckland District Court Judge to criminally prosecute Act Party leader John Banks for filing false electoral finance reports - after the NZ police and Crown Law had refused to prosecute. Previously his successes included private prosecution of Labour MP Trevor Mallard for assault and advocating pensioners housing claims in Tenancy Tribunals. As a result of his chosen path he has been vilified as an attention seeking criminal and lauded as a champion for the rule of law in a system governed by partisanship.
Last week, under mounting public pressure, Solicitor General Michael Heron announced Crown Law would take over prosecution of Mr Banks from the
New Zealand Private Prosecution Service which McCready fronts. The reversal is a huge embarrassment, highlighting the political influences which often give connected criminals the wink from Crown Law and Police. Heron waivered but was ultimately humiliated by McCready's public protestations his $80 computer and pensioner earnings left him financially disadvantaged in continuing to prosecute Banks, whose high-priced Queen's Counsel has already filed countless motions to stall the proceedings.
In contrast to their position regarding Banks, Police last month filed a criminal prosecution against NZPPS director John Creser for assault of Court of Appeal Registrar Clare O'Brien. Ms O'Brien, a former cop, complained Mr Creser laid his hands on her when serving her with court papers on behalf of a client. No injury was claimed.
Neither is McCready immune. Last year he was convicted of blackmail after he made a settlement offer to a powerful Wellington businessman on behalf of several accounting clients to vote the businessman's proxy in exchange for not pursuing a claim. The case remains subject of blanket court suppression orders. McCready's evidence that the businessman had committed a fraud in failing to provide a prospectus and misrepresenting contracts to his franchisees is suppressed by multiple court orders - with the most recent one by Justice Collins taken on the judge's own initiative. Police who prosecuted McCready for attempted blackmail have so far refused to prosecute the fraud.
Despite the stress of routinely seeing corrupt officials being protected and those who expose them prosecuted, McCready rarely appears chagrin. He enjoys spending considerable time buying surplus computers on-line, repairing them in his 50 square metre Miramar apartment, and then donating them to local schools. He sees it as a chance to help people as well as make up for past failures in his own life. The struggles of his youth, his father striking for collective bargaining rights on the docks of Wellington and his personal experience that those in power are often not held accountable are lessons he clings to in his quest to make society better for the average citizen.
$100 MILLION BLACK HOLE
2 November 2013
The New Zealand Supreme Court may be the most expensive building in history built to the homage of five lawyers but don't expect the gratuity to extend to the New Zealand public, let alone the public interest.
Within its $100 Million walls are stored some of the most exceptional legal submissions the New Zealand public may never see. It may require an Act of Parliament to pry the lid off the documentary vault.
Late last month, after weeks of "taking advice", Supreme Court Registrar Gordon Thatcher issued a letter declaring because "there are no regulations which permit a search of this courts files" he "is unable to make available copies of applications for leave to appeal and the submissions lodged."
Mr Thatcher's response was in reply to a request that court documents be provided for publication on a website dedicated to providing an archive of public documents to New Zealand's highest court. Currently only judgments are provided by the Supreme Court on-line, as well as transcripts to the small percentage of applications which are granted a hearing. Many leave dismissal judgments are less than two pages in length, begging more questions than answers in respect the reasons the Supreme Court judges relied upon in refusing to grant an appeal hearing.
A strong argument is made that it is the public interest for lawyers in particular to be able to see the legal issues being presented to the New Zealand Supreme Court in the absence of cogent reasons for dismissing applications and submissions to it.
Applications for judgment reasons are routinely met with a reply that under section 16 of the Supreme Court Act 2003, the Court "may state reasons briefly, and these may be stated in general terms only."
The publishers of www.newzealandsupremecourt.co.nz intend to judicially review the Registrar's decision on the grounds no law expressly providing for access to public records at the Supreme Court does not support a refusal to allow public access to public court documents which underpin the legal fabric which governs our democracy and individual rights at the highest level. That every other court in New Zealand provides access to filed documents underscores the errors in the Registrar's refusal to do so at the Supreme Court.
NEED BETTER WORK STORIES?
8 October 2013
A 7-day trial in the Auckland High Court begins Monday, 14 October, against 14 men in blue concerning the dawn 2008 raid on the offices of Spartan News Limited (this website) and home of Vince and Jane Siemer. A fifteenth defendant is the deputy registrar of the District Court who signed the undated police search warrant.
No one was charged as a result of the raid, which was postulated on Vince Siemer publishing the suppressed police affidavit used to hold, without bail, 18 New Zealand citizens in the infamous October 2007 Tuhoe raids (4 of the 18 were eventually convicted of various weapons charges; charges were dropped on the other 14).
The case has been five years in the offing.
Defence Counsel Austin Powell, of the "Constitutional and Human Rights Team" within Crown Law, will first cross-examine Vince and Jane and their daughter of the events of 21 February 2008 before the 14 police defendants tell their work stories. Two weeks ago that was expected to concern the twelve pages of items they seized but never accounted for on the day. However, the week before trial, the police conceded they have been withholding evidence of examination reports on the 5 cell phones they seized, had taken 183 photos inside the home not previously accounted for and cannot find the data the police cloned from three computers they seized.
Crown counsel Powell could only reply in a 7 October email,
"I am not able to give priority to any more questions about discovery of documents. We are now a week out from the fixture and there is a great deal of preparation to do. I will attend to this and any other requests if time permits."
Then-Solicitor General David Collins approved the raids on Tuhoe in 2007 and the Siemers in 2008 but the Court of Appeal ruled in 2011 he could not be sued by Siemers and Spartan News. Mr Collins was appointed a High Court judge in 2012.
In addition to all phones and computers, the police seized tax and business accounts, cameras and even printers. The police claim their active investigation ceased three years ago but admit to still holding unspecified property. The biggest return of items to date was more than 4 years after the raid, on 21 September 2012.
The claim pleads eight causes of action, including unlawful detention and trespass, malice and conversion. The plaintiffs are represented by Yale educated barrister Colin Henry of Albany.
YOU CAN'T HANDLE THE TRUTH
23 September 2013
The last month has been an active one.
Former police prosecutor Grace Haden was again in the District Court this week seeking to hold barrister Neil Wells at bay. Ms Haden was found guilty without trial in 2008 of defamation; the proceeding heard as "quantum only" after Ms Haden was debarred from defending. The most important court step of the substantive proceeding was skipped (in other law-based democracies plaintiff's still have to prove their case even if the defendant is barred from defending). Five years, three lawyers and at least eight court appearances have since failed to get one judge to look at the certain evidence Mr Wells had set up a sham charitable trust to personally siphon animal control fees off Waitakere District Council six years ago (the 'defamatory lie' Haden was convicted of telling). Last year Haden filed an originating claim alleging the 2008 judgment was obtained by fraud, with new evidence from the Ministry of Agriculture and Forestry confirming the trust was a sham. This time District Judge Gibson did the shuffle, albeit less than gracefully, when ruling,
"I do not accept the documents obtained by the plaintiffs after the determination of the earlier proceeding could not have been obtained through the discovery procedure, and further even if the plaintiffs had
the documents before the earlier hearing that would not have availed them as their statement of defence was struck out and they were debarred from defending the proceeding. They could only be heard on quantum." In short, even evidence proving the claim was a fraud is irrelevant.
Meanwhile, Marc Krieger and family, the consultant who this year blew the whistle on systemic corruption within the Earthquake Commission, is leaving New Zealand for the sanity of Europe, after being attacked by the government, then looking around and recognising New Zealand leads the world in shooting the truthful messenger. Crown Law may have had their funding cut for criminal prosecutions, but the Attorney General is digging deep to go after Mr Krieger, although Crown Law have yet to figure out how to lawfully accomplish the mission. (Former-Solicitor-General-now-'His Honour') David Collins has so far refused to clarify his suppression order Collins' former office is seeking to prosecute.
Lawyers also are being pursued with regularity for justly criticising the system. Last month, the most senior Queen's Counsel in New Zealand, Dr Anthony Molloy QC, was fined $1,000 by the Law Society for stating in a press interview last year that judicial ineptitude born of a lack of specialisation was too often resulting in judgments which would be considered fraudulent anywhere else. The sycophantic Law Society strategically imposed a fine small enough to avoid the busy barrister challenging it. Any other lawyer would have been struck off for such candour, but the Law Society had a problem beyond Dr Molloy's eminent status. Molloy let it be known he was prepared to rely on a prior phone call he received from Attorney General Chris Finlayson in which Finlayson expressed agreement with Molloy's assessment, even if he took exception to his choice of word.
Publicly, however, Finlayson lambasted Molloy, virtually demanding he relinquish his QC title for criticising our exemplary system.
It is these "two faces of Chris" that set public policy and tolerance in New Zealand. Truth is admired so long as it remains in the smoke-filled back room among the good ol' boys and does not expose misfeasance. Whistleblowers are free to blow the whistle but not if it tarnishes the image of those in power. And, significantly for our culture, it is the role of the Attorney General to crack the whip on the poor schmuck who violates this policy, to remind the public of our priorities.
Fortunately for Chris, the lawyers get it and the public remain too apathetic to care.
SELLING JUSTICE GOES ON TRIAL
5 September 2013
After years of New Zealand courts preventing hundreds if not thousands of similar appeals on "well-established" legal principles, the Supreme Court has granted leave to a prisoner who claims his right of appeal to the Court of Appeal has been unduly prevented by imposition of unaffordable security for costs.
'Security for costs' is a regime which requires poor litigants pay into court the anticipated legal costs of their adversary before the New Zealand courts will consider their legal claim. Most countries prohibit the practice as a draconian restraint on access to justice. Ironically, the NZ Court of Appeal which imposed the order in this case, and against many others who then sought challenge to the Supreme Court, has "
To no one will we sell, to no one will we refuse or delay, right or justice" emblazoned on its building.
On 25 July, the Supreme Court agreed to hear the appeal
SC47/2013 Reekie v Attorney General on the ground "Whether a waiver of security for costs should have been granted?" This agreement to consider an appeal against a security for costs order on a factual ground created consternation in the legal community given the Supreme Court's recent refusals to consider no less than six challenges to the security for costs regime on legal grounds. Each previous refusal curtly stated the process governing imposition of security for costs in New Zealand was well-settled law.
Queen Street lawyer Gregory Thwaite earlier this year filed a formal complaint with the United Nations Human Rights Committee attacking the New Zealand security for costs regime as a discriminatory constraint on access to justice based upon 'lack of property'. The UNHRC would likely have asked the NZ government for a formal response to this complaint just prior to the Supreme Court granting Reekie leave to appeal. Erstwhile lawyer Barry Hart has let it be known recently he is preparing a similar UN challenge.
Nicholas Reekie (pictured), currently serving time in Paremoremo Prison in Auckland, sought to appeal a judgment of Edwin Wylie J which found 'no evidence' of unlawful detention and torture after a substantive hearing in the High Court. Reekie's appeal asserts the judge might find the evidence inadequate but that it was a self-evident error to declare no evidence existed.
The Court of Appeal Registrar imposed a $5,880 order of security impediment to an appeal hearing. Upon application by Reekie, the Court of Appeal Registrar refused to waive security, accepting his inability to pay the $5,880 but stating she did not consider the appeal held any significant public importance. Save for the name and case number, the 'decision' Mr Reekie received from the Registrar is the same form letter sent out to every appellant seeking a waiver of security.
Justice Douglas White issued a two page dismissal of Reekie's application for judicial review of the Registrar's refusal. Parcel to the 'well-settled' law governing security for costs in New Zealand, the Registrar's refusal counts as a judicial decision and the judge's review the only appeal available by right.
Given the open-ended approved ground, the Supreme Court will be hard-pressed to keep the lid on this scheme which it has long held to meet all Rule of Law requirements, as well as consistently applied, fair and reliable. Relevantly, Mr Reekie has raised the same issues previously rejected by the Supreme Court, including the ground that security for costs impediments to insulate Crown respondents with a legal duty of care violates the Bill of Rights Act and amounts to unlawful State protection.
LAWYER LYNCHING LABELLED "SHOW TRIAL"
25 August 2013
Political oppression against those who exercise their freedom to express critical views of judges is set to play out in Auckland District Courtroom 5.3 on 2 September 2013, where the New Zealand Law Society is seeking to have human rights barrister EvgenyOrlov debarred for privately criticising Court of Appeal Judge Rhys Harrison (pictured).
The prosecution has been five years in the making, has cost Society members almost $200,000 and is largely unknown to the public despite procedural appeals having gone to the Court of Appeal and Supreme Court.
The saga began when Mr Orlov made a private complaint to the Judicial Conduct Commissioner concerning what he considered to be racially tainted views of Maoris and foreigners by then-High Court Judge Rhys Harrison. Though similar complaints have been made by others against Harrison, Mr Orlov's complaint prompted then-Chief High Court Judge Anthony Randerson to write the Law Society on Court letterhead asking it to investigate Mr Orlov's fitness as a lawyer.
The Law Society struggled but eventually came up with nine charges to levy against Mr Orlov. They all centre on "false and scandalous charges" Orlov allegedly made about Harrison in his JCC complaint.
Harrison and Randerson JJ both currently both sit on the New Zealand Court of Appeal.
In a mocking and meandering press release this week, Mr Orlov called the debacle a 'show trial', noting the Law Society intends to call no witnesses, while preventing him from calling Harrison or either of the two Judicial Conduct Commissioners as witnesses. Orlov draws a comparison with the 1899 Privy Council judgment of
McLeod v St Aubyn which found; "
Contempt of Court may be committed by publication of scandalous matter respecting the Court after adjudication as well as pending a case before it. In England committals for such contempts have become obsolete: in small colonies consisting principally of coloured populations they may still be necessary in proper cases".
Even for a colonial backwater, no witnesses and allowing no cross-examination seem a strange court process to prove 'false and scandalous' criticisms sufficient for a legal lynching.
Pertinently, Mr Orlov included a link in his press release to a New Zealand Law Society press release which publicly criticised a conviction in Fiji for quoting a report critical of its courts as "a serious restriction on the right to free speech". In contrast, NZ Society members' criticisms in Orlov's prosecution have been few; generally directed at the financial costs being incurred despite few members knowing what the 'false and scandalous' allegations are at the core of the prosecution conducted in their names.
Another lawyer similarly attacked by the New Zealand Law Society sees the current policies of the Law Society being representative of broad apathy in the legal community which has turned to fear. He intoned, '
everything, do nothing and, above all, be quiet' is the adopted credo of lawyers in New Zealand.
The Orlov trial raises broader natural justice concerns by preventing inquiry (as scandalous) into the validity of a complaint he has made against a powerful State actor - a complaint which is not unique. Mr Orlov alleged Harrison J sanctioned Maori children being removed from their parents without hearing - oppressively awarding costs against him personally in violation of UN conventions for representing the parents in a claim alleging the Crown acted without due process. In another case, Harrison J ordered a known paedophile to be the custodial parent where the mother was a Russian bride being deported as a result of her marriage breakup.
Investigate Magazine earlier on this misconduct, "
The most stunning aspect of the whole story, however, is why on earth a man with Paul Copeland's psychiatric history, a man who raped his own sister and tried to murder his wife with a bow and arrow, a man who enjoyed killing cats in the cruellest possible ways - why such a man would be allowed anywhere near a child".
Judge Harrison's brother Geoff Harrison was lawyer for that child.
Judge Harrison also criticised Mr Orlov for not being trained as a lawyer in New Zealand, seemingly justifying his complaint Harrison is xenophobic without any explanation from the Judge for this worrisome judicial comment.
Dr Frank Deliu, a U.S. and N.Z. trained lawyer, expresses similar views of Harrison and has provided the Judicial Conduct Commissioner seven sentencing decisions of Harrison J which cite their "host country" and crimes against "people of New Zealand" as factors in sentencing foreign-born New Zealanders. Dr Deliu is also being prosecuted by the NZ Law Society on the recommendation of Judge Randerson, although the charges are still being determined.
Mr Orlov's press release invites interested parties to attend the "show trial" which is set to begin at 10 am. With no witnesses and a charge of making false allegations, he has billed it as colonial justice at its finest and asked attendees to accordingly wear black tie and evening dress.
CLEAN GREEN PROPAGANDA
16 August 2013
Some forms of propaganda are more obvious than others. At the height of New Zealand's 'clean green' image campaign 14 years ago, tourists were astonished to see cars billowing thick exhaust, people burning rubbish in their yards and waterways clogged with inorganic and animal waste. It was not only the old cars shipped to New Zealand because they no longer met emission standards in Japan, it was also the statistic that New Zealanders led the world in per capita boat and car ownership. The clean green image was reality only to the extent the population was sparse across the landscape.
Helpfully, once Kiwis accepted the reality the community came together to effect change to live up to the image.
Currently, corruption in New Zealand is the common currency and the lack of any need to prevent or curtail it our pride and joy. Judges routinely make submissions to Parliament claiming corruption does not exist in the judiciary (including the current Pecuniary Interest of Judges Bill), the Auditor General gives speeches abroad on how corruption does not exist here and Transparency International New Zealand tells the public - with government funding - that it is not in the business of exposing corruption, will not expose corruption and, most of all, corruption does not exist in New Zealand.
We love it! We may be at odds with the United Nations by not adopting anti-corruption laws, but that is only because this organisation does not understand one nation exists that does not need to waste its time and resources in this area.
The problem with corruption is, unlike most State propaganda, you cannot look out your window and see government-funded claims corruption does not exist are farcical.
Then there is the public apathy. While Transparency International New Zealand has been publicly exposed as a State-funded club of 52 feather-nesting bureaucrats that turns down members who do not take the loyalty oath to tow the clean green line, we simply do not care. The reality is we still love this corrupt organisation telling us how corrupt-free NZ is.
We conveniently forget about the internal emails which exposed a judicial scandal that "would likely bring down (the Chief Justice) if probed" in the prelude to Supreme Court Justice Bill Wilson's resignation. Of course, it was not probed because (a) it was considered to be an imprudent focus of our energies, or (b) we could not afford to replace all our judges. The answer must be (a) because we are corruption free.
We rationalise there must be a margin of error in the survey that found Kiwis twice as likely as Australians to have paid a bribe. If not, we could adopt Transparency Intl New Zealand Director Suzanne Snively's opinion that the survey is skewed by Australian's ignorance about existence of corruption in their country!
Does any of this head-in-the-sand approach assist us in the end?
Only when we become embarrassed by the 'perception index' and choose to improve our reality index will there be any real hope to weed out the endemic corruption which exacts an untold cost on all of our lives.
WILL THE LAST INDEPENDENT JUDGE IN NEW ZEALAND PLEASE TURN OUT THE LIGHTS
20 July 2013
Kiwis often make excuses for parochialism. Where we find a bureaucrat has given a lucrative construction contract to her brother-in-law or a judge rules in favour of his business partner we rationalise it as something to be expected in New Zealand because we are only 4 million people. When apparent conflicts occur, bureaucrats and judges tell us it is merely coincidence - that they are professional enough to put such conflicts aside in reaching the proper decision. We believe them or simply do not care. Inevitably, the envelope gets pushed futher and further, until the law itself favours what is unlawful almost anywhere else in the world.
The "impartial and informed observer" no longer exists in New Zealand as a standard for analysing judicial conflicts of interest. In a 2007 case, Justice Paul Heath dismissed his extensive financial conflict with a party he ruled in favour of by stating "
I have never been to his house, nor has he been to mine". Sir Hugh Williams used to brag to his mistress that he dealt with parties challenging his conflicts by claiming ignorance of the alleged relationship and then punishing them in his judgment for having the audacity to raise the issue. In one such case, according to his former mistress, Sir Hugh - current president of the Electoral Commission - had a robust laugh out of ruling in favour of the maid of honour at his wedding after stating he did not know the woman when asked by opposing counsel of any conflict the judge had (something few lawyers in New Zealand have the backbone to ask).
Recently, in a judicial review of the Judicial Conduct Commissioner brought by lawyers Clive Bradbury and Greg Muir for dismissing a conflict of interest complaint against Judge Geoffrey Venning, Justice Lowell Goddard dismissed the review as an "abuse of process" even though Venning had admitted to being an active director of a competing forestry scheme to the one at issue before him.
Judges are appointed in New Zealand with the expressed understanding that they conceal each others conflicts on the perverse belief that to not do so could weaken public confidence in the judiciary. In short, we are not hurt by what we do not know. One problem with this is it acts as an encouragement for all judges to break the law.
This perhaps explains why NZ judges are a tighter group than the Mongrel Mob. Appeals which challenge judicial bias or conflict are universally dismissed, commonly with harsh criticism against the party bringing the challenge. And if the judiciary is not a gang in the common sense of the word, how can it be explained that judges never abstain let alone dissent when it comes to lobbying Parliament to pass or not pass laws. More than 200 judges are currently behind submissions to the Justice and Electoral Select Committee demanding Parliament not pass the Pecuniary Register of Interests of Judges Bill - a bill, if passed, which would require judges to register their business and financial interests. Ten years ago all the judges made submissions challenging the Judicial Matters Bill, stating,
"The protection for judicial independence, which underpins the rule of law and which has been a feature of our legal tradition since 1701, must not be undermined."
Apparently, 'judicial independence' does not include independence from each other.
We have a new meaning for 'independent' in New Zealand and, while this meaning conflicts with the legal definition, it is the constant rallying cry of our 205 judges. According to our judges, they are being abused by Parliament and the public. The only allies helping to preserve their independence is the powerful Rules Committee and the New Zealand Law Society. The truth is most judicial appointments emanate from the Law Society proving ground where lawyers demonstrate first their commitment to judicial discretion and secrecy, as well as actively target and then prosecute lawyers who criticise court corruption. This explains a lot.
The public are increasingly standing up against such nonsense, even where lawyers are fearful to do so. The University of Otago is currently conducting a study to determine why there has been an explosion in recent years of lay litigants. The answer could be as obvious as why pay a lawyer to argue law which does not matter when it is more important to have a relationship with a judge. What is certain is the Courts' response has been to issue increasing numbers of secret judgments and suppression orders when common sense suggests public rulings would be the best way to put these lay litigants in their place if they are truly wrong.
SILENCE OF THE LAMBS
13 July 2013
First they came for the trade unionists...
I, Vince Siemer, am going to prison tomorrow after the Supreme Court upheld the Court of Appeal ruling which in turn upheld two judges of the High Court decreeing I am in contempt of the Courts. I consider I can show no better respect for the rule of law than contempt for judges who pervert it. My 'crime' is publishing the secret December 2010 judgment of Justice Helen Winkelmann which denied the Urewera 18 defendants their statutory right to trial by jury on the basis a jury
"would likely use improper reasoning processes". The Chief Justice strongly dissented, recognising I disobeyed an unlawful order yet was denied the lawful right to challenge it in order to preserve my liberty.
I am believed to be the first person in the free world to be sentenced to prison for reporting a criminal court judgment. (Who says New Zealand does not lead the world?!) One reason I am the first is secret criminal court judgments are unlawful. In my case, the Courts roundly protected the unlawfulness of Winkelmann's order by asserting they need not determine the lawfulness on the ground even unlawful orders need to be obeyed until overturned - the Crown claiming a message needed to be sent to the larger community of this. Interestingly, I invited the Attorney General to make submissions in the public interest regarding the lawfulness of Winkelmann's orders and he responded that, if he made submissions at all, he would seek an increased order of costs against me.
Where Winkelmann's order gave no reasons for the secrecy, the High Court Judges tripped over each other to retrofit the reason that justice required the secrecy. The Crown conceded at my trial no prejudice or harm was alleged as a result of my publication, but they still wanted me imprisoned. In a page out of a George Orwell novel, the Court of Appeal censored Winkelmann's reason for negating the statutory right of trial when upholding my conviction out of fear the public would not take kindly to being called stupid in a secret judgment.
First they steal the words; stealing the meanings only when required.
New Zealand judges are out of control. We no longer have the instilling discipline of the Privy Council in England. The NZ Court of Appeal judges trounced by the Privy Council as law-breakers in Taito v R now comprise the Supreme Court which replaced the Privy Council.
Do you see any mainstream media reporting any of this?
We get what we deserve with our judges. The incestuous nature of judicial appointments being what it is, every judge in New Zealand signed on to submissions to Parliament opposing the passage of the pecuniary interest of judges bill currently before Parliament. Really? Not one judge in the whole of New Zealand not actively opposed to this bill which requires them to register their financial and business interests? While it seems impossible at times to get more than two Members of Parliament to completely agree, our 205 judges are in lock step with their independent view. It is evident 'independent judge' is an oxymoron in New Zealand.
We have forfeited much with the loss of the independent Privy Council. This should come as no surprise. Former Attorney General Margaret Wilson was undeterred when 82 percent of Auckland law practitioners voted against her new Supreme Court. When everyone's back was turned it still happened. We built a $100 million palace for five elevated judges, most of whom were known to engage in breaches of due process. And, like sheep, this 82% fell into the fold even as this new court made mince out of established principles on judicial bias and essential legal rights, rolling over established legislation with all the finesse of a blitzkrieg. It is the law today that the "New Zealand independent and informed observer" is an endangered species and, where it does exist, does not consider a judge has a conflict of interest where he/she is business adversary or sibling to those who appear before him/her. You now have to be rich to get to a hearing in the courts - the Supreme Court ruling the requirement that plaintiffs pay the defendants' anticipated legal costs into the Court as a condition to obtaining a hearing is "well-settled law" in New Zealand. Two years ago, in Att
y General v Chapman, the Supreme Court ruled judges are exempt from the New Zealand Bill of Rights Act 1990 on the ground this statute that expressly bound them threatens their 'independence' we all know so well.
Maybe the diminishing numbers allowed to be heard in the courtrooms no longer care. But we could possibly survive without the legal necessity of independent judges if these judges had any respect for the rule of law and the courts they serve. But they have no respect for laws where their mates and critics are concerned, and the most powerful sheep lawyers in New Zealand, while silent about it publicly, make no secret about it privately. As retired Judge Sir Edward Thomas said in a 2007 email to the president of the New Zealand Bar,
"I am not a keeper of the court's conscience and am of the view that my primary obligation is to Alan, not just as a matter of professional obligation but by virtue of my deep friendship for him. There is a limit to how far I will go to uphold the integrity of the court if the judges themselves won't."
Where is the 'independent bar' on this? Flocking behind the independent judges, either cowering in fear or cloaked in protective partisanship. This silent flock is hoping the perverse court judgments in my cases do not generally denigrate the rule of law in New Zealand. History finds this the safest place for lawyers to be. Look at Fiji.
Those who see little comparison with Fiji fail to realise that Fijians do not feel oppressed. That is the insidious thing with erosion of the rule of law. It is frighteningly uneventful until the tipping point. In the Earthquake Commission contempt the Solicitor General filed against Marc Krieger this week, it was not the Bill of Rights or due process legislation which even featured in the SG's application. The SG largely relies upon three of my court decisions to eventually bankrupt this poor citizen who had the audacity to expose the EQC's attempt to write off $100 million which evaporated from the public coffers.
Anyone who doesn't believe a "deep friendship for Alan" is a more valuable commodity in a New Zealand Court than truth and law chooses to ignore the reality. For whistleblowers, one obvious problem is they do not have deep friendships with the perpetrators whose power and influence is the currency of the New Zealand courts. Partisanship and secrecy is endemic, and it is laying ruin to the rule of law in black robe and white collar New Zealand. It would be better if it was blood in the streets, if only to wake people up to the huge corruption occuring behind closed court doors. No one should need to go to prison to protect the rule of law but the sad reality is sitting in prison is often the best way to stand up for legal rights. While it is unfortunate this price must be paid, I consider my imprisonment a demonstration of my highest respect for the law.