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JUDGE (n.) A law student who marks his own papers
- H.L. Mencken
"Nearly all men can stand adversity, but if you want to test a man's character, give him power."
- Abraham Lincoln
The Judge files contain background factual data on judges, as well as analysis which is more subjective in nature. Where analysis and opinion are provided, they are the considered and sole opinion of the editor.
Information and news tips on judges can be sent to Spartan News Limited through various means listed on the 'Contact Us' page. Information may be submitted anonymously but it would be very helpful if reference or source background can be supplied along with information.
KIWIS FIRST
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JUDGE LANCE CRIMINAL TRIAL
15 March 2010
Former Deputy Judge of the Independent Police Complaints Authority
Michael Lance QC will face trial in the North Shore District Court on 24 March 2010 for willful vandalism. As first
reported on
kiwisfirst a year ago, Lance was witnessed "keying" the car of businessman Richard Cummins in front of the Judge's Browns Bay apartment by café patrons across the street. Despite the trial being set for months, the half dozen witnesses were only subpoenaed this weekend.
Further investigation of Judge Lance after his arrest uncovered a disturbing history of criminal conduct. This included similar incidents of vandalism where the Judge was questioned but never charged, as well as the Judge throwing a trial in Rotorua of a lawyer charged with fraud and blackmail years earlier. That lawyer, caught on tape trying to blackmail the detective prosecuting his drug-dealing client, turned out to be the business partner of the Judge's son Simon. Without disclosing the relationship, Lance had himself appointed trial judge and travelled down from Auckland to preside. In a brazen display of power, Lance J found the lawyer not guilty and then publicly castigated the police for prosecuting the lawyer. The lawyer cannot be named because Judge Lance additionally gave him name suppression.
Judge Lance's perversion of the course of justice in the criminal trial of his son's law partner occurred when Supreme Court Judge John McGrath was Solicitor General and Police Complaints Authority Judge Lowell Goddard was Deputy Solicitor General. Police hierarchy reported and detailed the corruption to the Solicitor General and deputy, but McGrath and Goddard concealed the evidence of Lance's criminal offending from the bench and dismissively stated at the time that prosecution of Judge Lance was "not in the public interest". At least one high ranking Police inspector quit out of disillusionment. The important news story was never reported by the NZ media.
Subsequent
Official Information Act requests for this evidence held by the Crown Law office have been stonewalled by claims the evidence is protected by legal privilege. Appallingly, both Justice McGrath and Justice Goddard gave ringing endorsements to Judge Lance's subsequent promotion to Judge of the Independent Police Complaints Authority. Judge Lance wasted no time claiming victory over the Police officials who had complained about his criminal conduct to no avail years earlier.
Years after McGrath and Goddard's cover-up of Judge Lance's criminal misconduct on the bench, Judge Lance successfully sued a radio talkbalk host Mark Bennett for defamation after the host called the Judge "idiotic".
Judge Michael Lance is currently retired. He is aggressively defending the charge but does not want a jury trial. The trial should prove interesting even if the New Zealand media are afraid to report it. BACK TO FRONT PAGE
SOLICITOR GENERAL CLAIMS HE IS VICTIM OF CONSPIRACY
15 September 2009
New Zealand Solicitor General David Collins is currently defending at least three unrelated complaints to the
New Zealand Law Society for alleged legal misconduct. One is by
kiwisfirst editor Vince Siemer, in relation to representations by Mr Collins to the Auckland High Court in January 2008. In brief, that complaint alleges Collins knowingly made false claims to initiate a contempt action that the www.kiwisfirst.com website was in breach of an interim injunction, despite his office conceding that the content was "fully compliant" with the injunction terms. The complaint also alleges that he deliberately misled Parliament by misrepresenting to the
Justice and Electoral Select Committee in August 2007 that the matter was before the Courts - and thereby off limits from a Parliamentary inquiry.
Mr Collins has responded by letter dated 3 September 2009 to Secretary of National Standards Committee Mary Ollivier that he considers he is the victim of a conspiracy by Mr Siemer and the other complainants. Presumably, on this basis, he refused to address the substance of the complaint and supporting evidence in the form of a 6 September 2007 email indicating his office agreed months before that the website was not in breach the injunction. Ironically Mr Collins used his response to threaten the Law Society with prosecution for contempt of Parliament if he considered the Law Society was "to collaterally challenge" the Select Committee's decision founded on what Speaker of the House Lockwood Smith had subsequently determined "may not have been correct". Dr Smith's conclusion was reached before he became aware of the documentary evidence that David Collins was personally involved in the deception of the Committee.
Collins elected to take a global position in his reply. He appended a copy of the resultant High Court Judgment ordering Siemer to six months prison for failing to "unconditionally close down" this website as defence that his actions in seeking Mr Siemer's imprison were appropriate. back to front page
COURT ORDER SILENCES CORONER AND CONCEALS FARDELL SUICIDE FROM PUBLIC
27 August 2007
Late in July 2007 it was revealed that Auckland High Court Justice Paul Heath ruled last December - more than a year after
Robert Fardell QC (right) fell to his death from the 15 metre high Takapuna Head cliffs into the rocky surf at high tide - that the Auckland Coroner's findings and the evidence into the bizarre circumstances of Fardell's death would be largely suppressed. This Court ruling by Heath J followed prominent barrister Harry Waalken QC obtaining a restraining order in July 2006 preventing the Coroner from releasing his written report while the family sought a judicial review designed to censure and obscure the Coroner's findings. Unfortunately for Waalken, the cat had already been let out of the bag at a special inquest conducted at the Auckland Coroner's Court in June 2006. This was when Auckland Coroner Dr. Murray Jamieson issued an oral report stating Mr. Fardell died from drowning, with the post-mortem examination revealing drowning was precipitated by massive injuries consistent with a fall immediately prior.
With foul play and suicide the likely scenarios facing police officers responding to report of a lifeless body on the rocks, foul play must reasonably be ruled out simply on the response of police that day finding a middle-age man unexpectedly dead. What is known is that the police and ambulance response to the call of a body found 6:30 pm 11 December 2005 as the tide receded was unusually brief for an untimely and, presumably, uncertain cause of death. Although Mr. Fardell was 52 years old and in good health at the time he died, neither cordoning of the scene nor forensic analysis in-situ was apparently conducted. The ambulance crew left shortly after inspecting the top of the cliff above where the body was found. Moreover, as Fardell was an extremely heavy-set man who additionally had to breach a fence to reach the edge of the cliff, it is highly unlikely that his fall could have been an accident or murder in this area active with people enjoying the early summer weekend.
Nonetheless, Barrister Waalken vehemently pressed the Coroner that suicide was not a finding the Coroner could legally make - or even mention. While the Coroner seemed ultimately prepared to delicately acquiesce to Waalken's demands, Waalken's subsequent legal motions that the Coroner permanently seal the evidence and his finding were rejected outright by the Coroner as incompatible with the fundamental precept of transparent proceedings and justice. It is this ruling by the Coroner that has now been overturned by Auckland High Court Justice Heath.
There has been some speculation, unproven, that Mr. Fardell had a life insurance policy, the death benefit from which may have been lost if the Coroner's findings indicated suicide. However, it is more likely for reasons that will become apparent deeper in this story that, given the tremendous media exposure to the death, concerns were heightened within the judiciary that allowing the circumstances of the death to be made public would only increase the public's curiosity as to what drove Fardell to such self-destruction. It was anticipated that attention into the deceased's sordid personal and professional life would then raise legitimate and troubling questions as to how such a person could reach the pinnacle of the legal profession and be next in line for a judicial appointment while those in authority had turned a blind eye to numerous disturbing complaints concerning his professional conduct for several years leading up to his death.
In the days immediately following his death, the
New Zealand Herald ran front page stories claiming that Mr. Fardell died of a heart attack while swimming - irresponsible news reporting easily dispelled by facts that were immediately available to any reporter interested in accuracy. Other than the location of the body on rocks hundreds of meters from the nearest beach, Mr. Fardell was not dressed for a swim as he walked away from his house for the last time. The inquest officer assigned to the case said the body was found with shorts and no shoes but that his experience was "articles of clothing quickly get separated from the body in the water". And as any viewer of CSI can tell you, there are definitive forensic tests to quickly determine whether someone has suffered a fatal heart attack.
The inquest officer, Paul Herman of the Takapuna Police, immediately realized that he was in over his head on this investigation. The last person to talk to the deceased was Chris Morris, son of (now retired) High Court judge David Morris. Chris Morris admitted to Herman that he had come to Fardell's home this Sunday afternoon to discuss pending legal matters with the deceased but declined to grant a formal interview or provide further detail. Same with the widow. Also, as the press was widely reporting that ten High Court judges had attended the funeral, the estate hired Barrister Harry Waalken QC, widely regarded as a legal Houdini on medical cases, to advance the family's position on the death - and stymie the investigation. Faced with such powerful stonewalling Mr. Herman did not need to be a genius to identify that careers are made or lost on how someone might handle himself in an investigation where a litany of prominent lawyers and judges were not only expressing a keen interest in his approach to the investigation but were simultaneously speaking out effusively in the press about what a great man of integrity Mr. Fardell was.
Mr. Fardell undoubtedly had many fine qualities, but integrity was not one of them. It didn't help that Mr. Herman quite quickly uncovered this darker side to the man. Herman casually revealed to a private investigator early in his investigation that an Asian gang Fardell had a falling out with were phoning him in an attempt to gain information. Within a month Herman was also informed that Fardell was being sued in the Auckland High Court for deceptive practices by former clients Paragon Oil Systems Limited and Vince and Jane Siemer, and that an application detailing allegations that Fardell three times perjured himself had been filed and served less than two weeks before his death. Adding insult to a potentially career-killing injury for Fardell was the fact that Hugh Williams, a judge whom Fardell considered dim-witted and vain and, hence, was an irresistible butt of his jokes, was, as judge in the case, going out of his way to unduly protect Fardell. Fardell was a proud man whose career and legitimate standing among his peers meant everything to him. This graft from an unlikely ally whom he had been all too quick to dismiss as unprofessional was a tremendous blow to his ego as much as an inescapable symbol of poetic justice.
Yet another former client, New Zealand inventor Hugh Price, was also embroiled in a legal battle against Fardell before he died. Mr. Price had years earlier obtained a ruling from the Lay Observer that overruled the Law Society's dismissal of a formal complaint he had lodged against Mr. Fardell for deceptive practices and seeming incompetence. Despite this ruling of the Lay Observer, the Law Society refused to act on the complaint. Now, in December 2005, Mr. Price was again challenging Fardell in a current case for acting in a conflict of interest capacity.
Topping off all this was Fardell's close personal and business relationship with powerful Auckland insolvency practitioner Michael Stiassny, a relationship he would come to ruefully regret in the weeks before his death This was due in large part to (what Fardell was obviously convinced to be) an intentional release of information by his former friend that helped expose Fardell's legal scams. This information put Fardell's career at risk in addition to severely undermining his credibility. Whether this was the straw in the mountain of straw that broke the camel's back is difficult to say. However, given the significant betrayal by someone he had put so much trust in, it is not difficult to surmise this weighed heavily on Fardell as he solemnly walked to the precipice this otherwise sunny Sunday. Ironically, as Stiassny was trustee of the Fardell family trust (Delfar Holdings Limited) at the time of his death Fardell could not escape his clutches even in death.
In this pressure cooker where the powerful legal community's obituary contrasted so sharply with the unfolding facts of the man's real life, Officer Herman did the only thing he considered safe under the circumstances - he went to ground. As the Coroner's representative, Officer Herman was responsible for publicizing the public inquest. Despite the tremendous number of contacts he had received from media and financially interested parties, Officer Herman informed only the widow and Harry Waalken QC of the public inquest that he had hastily convened barely 2 months after the death.
Officer Herman would arrogantly respond later to those who felt slighted by his subterfuge regarding the public inquest that he was under no obligation to inform interested parties of the date or setting. This was simply untrue. The Coroner's Act 1988 specifically required him to notify in advance parties who may have an interest in the inquest. In the winter of 2006 Judge Borrin issued a ruling on behalf of the Police Complaints Authority of New Zealand stating Herman was derelict in his obligations under the Act. The Coroner had earlier been compelled to conduct a special inquest due to Herman's railroading of the public one.
The year 2006 saw significant changes in law for the Coroner's Office. The 1988 Act was repealed in favour of the Coroner's Act 2006, which was passed into law in August 2006, and the establishment of the Coronial Services of New Zealand was formed on 1 July 2007. Perhaps this chaos explains why the Coroner - having a year earlier been ready to issue his written inquest findings before a cease and desist order of the Court prevented him from doing so - released his report on 20 July 2007, seven months after Judge Heath finally gave him the approval to do so - sans the evidence and guts of the report. Perhaps the Coroner's delay was a demonstration of conscious indignation at the Court imposed coverup.
So it was that what started as a whitewash intended to be quickly disposed of in record time was eventually whitewashed by judicial order more than a year and a half after the fact. And when one reads the Coroner's brief final report, it is obvious that Mr. Waalken earned his substantial fees on this one. In legal speak, lawyers deceive by omission. This is obvious in this case when one reads the Coroner's two page report. This reporter's favorite line from that report is
"No evidence was located to suggest that Mr. Fardell harboured any intention to commit suicide. Indeed, his work on forthcoming cases suggested to the contrary". It is as perverse as it is ironic that the Coroner could not write massive injuries from a fall directly contributed to the drowning but was encouraged to get into the highly speculative (let alone non-medical) realm of saying busy people do not have time to commit suicide. Read Coroner's censured report.
In obvious double-talk the new Coronial Services website states on its' front page,
"The (new) Act was designed to enhance public confidence in the integrity and independence of the coronial system." All too sadly, the net result has proven the opposite true. BACK TO FRONT PAGE
JUDGE HUBBLE HONOURS HUBBARD AS 'OCCUPIER' OF CITY BUILDINGS
11 September 2007
In a ruling handed down by Auckland District Court Justice GV Hubble today, the Judge recognized the Mayor as
'occupier' of
'the whole of the Council Chambers and its buildings' for the intent and purpose of the Trespass Act 1980. This means the Mayor has the absolute right in law, according to Judge Hubble, to order people removed from city buildings whose presence the Mayor decides to be objectional or disruptive - or if he has good reason to believe they might become so - so long as he does not act 'capriciously' in doing so.
Judge Hubble's ruling found community activist Penny Bright guilty of crimimal trespass and discharged her without sentence, saying that
 she was well meaning and had suffered enough. The case stems from a 23 November 2006 Council Meeting called under urgency to consider a new waterfront stadium in Auckland. Hubbard had denied Ms. Bright speaking rights at the meeting. Ms. Bright demonstrated her displeasure with the Mayor's refusal by displaying a 1 by 1.5 metre banner in the public gallery that read "Mayor Hubbard's DICKtatorship is a CEREAL matter - Don't Buy it". The Mayor demanded she put the banner away but Ms. Bright refused; this refusal prompting the Mayor to temporarily adjourn the meeting while he summoned Police. By the time Police came the banner was gone but, when Ms. Bright refused to leave the meeting, the Mayor had her arrested for trespassing. The stadium proposal pushed by Hubbard eventually failed. The case of criminal trespass against Ms. Bright was pursued by the Crown at the Mayor's urging.
The mild-mannered Hubble appeared reticient in issuing his judgment. His decision ran contrary to three previous District Court rulings that had favoured Ms. Bright in similar circumstances. Still Hubble remarkably praised Ms. Bright and, in response to Ms. Bright submissions ahead of the sentencing, said he agreed with all the points she made. The difference this time, according to the Judge, was the Mayor found the banner justifiably objectionable. The Judge agreed.
With his judgment today Hubble also strayed further than previous District Court judges in ruling the Mayor was the rightful 'occupier' of the City building and, as such, was within his right to demand people being disruptive or guilty of objectionable conduct be cited for criminal trespass if they failed to leave when ordered to do so. Paradoxically the Judge recognized the public's right to access public buildings and attend public meetings. He therefore qualified his judgment by stating the Mayor, as occupier, had this right
"provided that occupier is not acting capriciously or on the basis of racial or other prejudice". Mayor Hubbard's actions, which included refusing Ms. Bright speaking rights on a number of previous and subsequent occasions, were apparently not deemed prejudicial by Judge Hubble due to His Honour's failure to mention this evidence in his judgment. The Judge also did not seem to mind that neither the Police constable nor Auckland Council Service's Manager Peter Burden could recall whether they had specifically issued a trespass warning to Ms. Bright before arresting her. The case included prosecution submissions and defense submissions
Given the stigma of a criminal conviction, Ms. Bright said she is determined to appeal Judge Hubble's decision. Back to front page
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Associate Justice DOOGUE, Jeremy
Professional Data |
| Postion & Titles: |
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| Judge of: |
High Court, Associate Judge since 2005 |
Formerly a District Court Judge |
| Specializations and Professional Interests: |
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| Professional Comments: |
Associate Judge Doogue has a reputation of not being intimidated by powerful (and undue) influences. However, he has been inconsistent in his bench performance, for example, ruling to bankrupt a consumer of Metro Water Ltd. then two months later refusing to do the same under identical circumstances after Associate Judge Sargisson and others agreed that these consumers had a legtimate dispute against Metro Water Ltd. |
| Background / Education: |
Associate Judge Jeremy Doogue graduated LLB from the University of Auckland in 1973. He was employed by
McCaw Lewis Chapman, Solicitors of Hamilton from 1974 and was a partner of the firm for eight years before taking up sole practice as a barrister from 1987. In 1996 he was appointed a district court judge based in Auckland. Judge Doogue was Executive Judge, Northern Region, district courts from 1999 to 2002, standing in as Acting Chief District Court Judge for various periods form 2002 to 2004. He became an associate judge of the High Court in December 2005 and is based at the Auckland High Court. |
| Degrees: |
LLB Auckland, 1973 |
| Admitted to the Bar: |
1974 |
| Company Involvements: |
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Personal Data |
| Born: |
1948(?)
New Zealand |
Sex: |
Male |
| Married: |
19 |
Children: |
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| Interesting Relationships and Coincidences: |
Has several relatives who are also judges or directly involved in the courts. |
| Miscellaneous: |
Scottish heritage. |
LOCAL COUNCIL CORRUPTION AND SECRECY IN NEW ZEALAND RAMPANT
2 February 2010 [Apologies: at time of publication, document linking feature for this article was broken down]
From Auckland to Southland incredible stories of malfeasance and backroom deals by Council officials have reached an alarming scale. Public money gone missing, council officials awarding contracts to their mates and privately selling off public assets, bureaucrats refusing to provide elected representatives records on the most rudimentary expenditures and a shroud of impervious secrecy over council business, all increasingly typify the status quo.
Even
Transparency International New Zealand, a secretive chapter comprised of government bureaucrats, rife with its own conflicts of interest and 96% funded by NZAID, concedes there are two areas where NZ fails to meet basic international standards. On whether the executive makes available to the public a report on what steps it has taken to address audit recommendations or findings that indicate a need for remedial action; and on whether the National Audit Body or the legislature publishes a report that tracks actions taken by the executive to address audit recommendations,
NZ scores a 'D'.
The impotence of the Ombudsman and Auditor General is evident not only in their near universal failures to act but in their often apologist rationalizing of incontrovertible audit discrepancies in cases where their findings are made known. Former Auditor General Kevin Brady, for one, had an unflappable faith that all bureaucrats acted nobly. He regularly refused to concede that the irregularities crossing his desk were anything other than "typos". In 2007, his office monitored an internal audit by
Gore District Council which determined Council acted appropriately - but added
"this could not be proved conclusively because of the poor quality of record keeping." At the same time, Mr Brady's most prized role was giving
powerpoint presentations on New Zealand's lack of corruption relative to other countries in the region. Perhaps this is simply a reflection of these other countries keeping better records of their financial affairs.
It may be that his successor Lyn Provost has lowered the bar still. Late last year she could not escape finding that four
Canterbury Regional Councillors breached the governing statute when voting on matters where they have a financial interest. The Auditor General nonetheless
"decided that a prosecution would be unlikely to result in a conviction and that it would not be appropriate in these circumstances to seek to have the councillors prosecuted."
Attempting to peel away the shroud obscuring business of many local councils is commonly frustrating and extremely time consuming. Official Information Act requests are often stymied by council claims that the subject is commercially sensitive - or privileged based upon some 'legal opinion' which itself is too secret to merely divulge who wrote it. In the case of Gore District Council, Chief Executive Steve Parry has claimed OIA requests are not only "frivolous or vexatious" but, according to a resolution, those making them could be deemed a
'significant hazard under s39 of the Heath and Safety Act' due to the emotional stress such requests provoke
. He has refused to provide a copy of his employment contract to elected council representatives and ducked and dodged questions regarding his quiet sell-off of public property at bargain prices and payment of over $340,000 in severance payments to employees let go because they were uncomfortable with conducting council business in his implacable style.
This would be bad enough if it was unique to Gore. Far from it.
Auckland City Council has only marginally improved from the last administration when mayoral candidate Lisa Prager exposed a $4 million discrepancy in a reported surplus in the 2006/2007 annual audit. Expenditures to private contractors totaling hundreds of millions of dollars are still deemed too commercially sensitive to divulge to the ratepayers footing the bill. Contracts up to $1 million get assigned without competitive bid.
In
Waitakere City, staff with legislative duties for dog and stock control have been diverting public resources for the private gain of a sham trust headed by the manager of animal welfare. Correpondence shows that trustee made a proposal to the NZ government in 1999 that Waitakere assets be transferred into the unincorporated trust and that the contract with North Shore City to provide animal care and control be assigned to it. A complaint to the Auditor General concerning the obvious fraud went nowhere.
In
Carterton District Council, malfeasance through the Carterton Community Centre resulted in a formal Police complaint. The evidence, as well as the several lawyers and auditors reporting the financial misconduct were marginalized. Then Area Controller of the police Rod Drew showed his willingness to put form before substance, foregoing an investigation and declaring that because council members and former MP Georgina Beyer
"have recently discussed issues around the closing of the Centre... the actions of the 'elected' officers of the Centre are most unlikely to have breached any Criminal Law." Drew's emphasis on 'elected' is odd because It was not the 'elected officers' who were accused of a crime.
In the
Horowhenua, the council made a secret decision to avoid required consultation and double the expenditure on a new council building. The Auditor General found nothing wrong. In another example, the chief executive claimed a legal opinion condoned the extraordinary expenditure from a multi-million dollar freeholding fund. The Chief Ombudsman agreed with the CE that this legal opinion could not be viewed by councillors. Finally, the Audit Office reported that credit cards are being used by staff indiscriminately, financial review procedures are lacking and that works projects are being approved above staff member's delegated authority - including the mayor's company receiving a contract which exceeded the amount approved by the Auditor-General. Council bureaucrats dismissively replied that staff are trustworthy enough not to personally exploit these situations.
In
Tararua District Council, the furtive sale of a 50 acre tract of land in 2003 that saw some local officials directly benefit financially prompted a court battle by Woodville community advocate Jay Reid. He now publishes a monthly newsletter which seeks to shed light on what is actually occurring at the local council.
And
Minister of Local Government Rodney Hide claims to know none of this.
Kiwisfirst approached him in September for comment regarding some of the suspect local government financial practices which this website has been approached with. Mr Hide professed not to be aware of any of it. Detailed examples from three local councils were then posted to him with request for his comment. Mr Hide has failed to respond to this and a follow-up phone call. RETURN TO FRONT PAGE
LOSS OF HONOUR
11 April 2009 (4 minute read)
In the wake of World War II, American Justice Robert Jackson famously reflected
"It is not the function of Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error." This was not considered a revelation so much as a reminder. For example, origins of English law enshrined in the Magna Carta long ago recognised the King's Judges could not be counted upon to be impartial when interests of the Crown conflicted with those of the citizenry. The enduring wisdom of this principle is reflected in the right to trial by jury (article 29) being embraced by almost all law-respecting democracies 800 years on. The protection that no man shall be stripped of his property or liberty without judgment of his peers is generally regarded as the Magna Carta's single most enduring value.
Over 100 years ago, this seminal right in law was reinforced by the New Zealand Parliament with the passage of the
Judicature Act 1908. Section 19(a) of this Act allowed parties to require a trial by jury in civil proceedings unless the matter was determined to "mainly" involve "difficult" questions of law or required prolonged inspection of documents relating to difficult technical, professional or scientific questions. This is the law which stands in New Zealand today, although recent rulings coming from the Supreme Court raise concerns whether this section of the law has now been extinguished by precedent.
Parliament has not revoked or restricted the right to jury trial afforded by the Judicature Act 1908. Nevertheless, no trial by jury has been allowed by the New Zealand Courts in a civil matter in more than 5 years. At least three appeals against orders for a judge-alone trial have gone to the New Zealand Supreme Court in the last two years. In each case, the lower courts and Court of Appeal ruled the judges exercised proper
discretion to deny jury trials. One of these is currently before the highest Court
(Siemer v Solicitor General). Two others were rejected by the Supreme Court without a hearing, including
Gregory v Gollan and the Attorney General SC4/2009 [2009] NZSC 29 on 30 March 2009.
Gregory v Gollan is a 4 year old case against the Crown over an alleged Police assault of an innocent man after Police entered his home without a warrant, pepper-sprayed him, wrestled him to the ground, then arrested and jailed him. It is now common ground that the plaintiff was in no way connected to a crime, but the Police defence is that storming the man's home was justified in the heat of the misguided pursuit in which they were engaged, when getting a warrant was not convenient. Associate High Court Judge Jeremy Doogue claimed that the law and facts were so intertwined that it would be difficult for a New Zealand Jury to separate out the factual determination it would be called upon to make at any trial. This is the basis upon which the Associate Judge denied a jury trial. The Associate Judge then indicated in passing that the case appeared somewhat innocently a matter of mistaken identity by the Police.
On Gregory's appeal to the Highest Court - and last resort - the Supreme Court bench of Elias CJ, Blanchard and Wilson JJ declared
"(trial by jury) is now covered by New Zealand legislation which makes it clear that proceedings are to be tried by judge alone unless the Court exercises its discretion to order trial by jury."
Not exactly. The relevant law blithely referred to by the Court actually states,
"If the debt or damages or the value of the chattels claimed in any civil proceedings to which this section applies exceeds $3,000, either party may have the civil proceedings tried before a Judge and a jury on giving notice to the Court and to the other party, within the time and in the manner prescribed by the High Court Rules, that he
requires the civil proceedings to be tried before a jury." [1] This seems more straight-forward than most laws: "either party" can "require" the "civil" proceeding be "tried before a jury". Yet the Supreme Court decreed the only way trial by jury can now occur is if "the Court" excercises its "discretion" to "order" trial by jury.
In one fell swoop, it would seem the Supreme Court has replaced - with judicial fiat - the law of the land as it concerns trial by jury. The Attorney General defendant wanted a Judge alone trial - and the Attorney General just so happens to appoint the Judges. While the law clearly stated Gregory was entitled to require a jury trial, the New Zealand Supreme Court stated the Court not only has the discretion to negate the law of the land, the law of the land is not enforced unless the Court "exercises its discretion to order" the law. In short, the law itself hinges entirely on judicial whim.
Though this recent judgment was an eye-opener, it would seem the contravention of statute by the Court was fomenting before this recent Supreme Court repudiation. A year earlier, the Supreme Court formally relegated the statutory right to trial by jury behind the Court's discretionary right to deny it. In
Siemer v Fardell SC93/2007 [2008] NZSC 9 the Supreme Court decreed,
"There has been an entirely orthodox exercise of judicial discretion by the High Court" in refusing to allow a trial by jury. This is a case where Mr & Mrs Siemer were suing the estate of their former lawyer Robert Fardell QC for breach of fiduciary duty. The case was for monetary damages only. Neither party proposed the matter involved mainly difficult questions of law or prolonged inspection of documents. As with the Gregory case, the relevant law before the Court was section 19 of the
Judicature Act 1908. The High Court skirted this law. On appeal, the Court of Appeal claimed the matter was too scientifically technical for a jury - as it simultaneously claimed the scientific issues were not noteworthy because they were available and understandable to anyone searching the internet.
Despite this obvious contradiction, the New Zealand Supreme Court was undeterred. In refusing to hear the appeal, the Supreme Court ruled
"The legal principles are well settled, including the rejection of the House of Lords of the proposition that the decision on the mode of trial should be influenced by one party's belief that Judges as a class are likely to be biased against that party or in favour of the other party." Mr Siemer's formal application to the Supreme Court did not support the Supreme Court's view that this was the legal thrust of his appeal, although it did mention the original trial judge Hugh Williams was forced to recuse himself (after earlier refusing to do so) when four witnesses swore affidavits claiming the Judge's summary in an interlocutory hearing was in material contradiction to the actual event.
The application for leave now before the Supreme Court (again by Siemer) raises broader legal questions as to whether a trial by jury can be denied a defendant when the penalty is obviously criminal; in a prosecution initiated by Crown officers. It concerns a six month prison sentence imposed upon Mr Siemer by a full bench of the High Court, where the Court had rejected Mr Siemer's application for a jury trial on the basis the Solicitor General had filed his prosecution as a civil proceeding. At the time of the Court imposed sentence, Mr Siemer was under a three year-old interim injunction preventing him from publishing information relating to Auckland insolvency practitioner Michael Stiasny's temporary receivership of his company in 2001. The High Court initially claimed that section 19 allowed it discretion to deny jury trial where judge alone was a more convenient mode of trial. Midway through the trial, the Court ruled section 24(e) of the New Zealand Bill of Rights Act 1990 - upon which Mr Siemer's application was based - was also not engaged because the matter was civil rather than criminal (note: the Court had earlier refused to consider the application for jury trial under the Bill of Rights, sec.24(e) as a preliminary matter).
While section 24(e) does not make a distinction between civil and criminal in affording the right to trial by jury to anyone facing more than a 3 month prison sentence, the Judges focused on the phrase "charged with an offence". They ruled this phrase in the Bill of Rights Act meant this legal protection was exclusive to criminal proceedings.
In March, the Court of Appeal Judgment agreed with the High Court, although they changed the sentencing order to allow Mr Siemer to free himself if he took down from the internet publications which those judges say violated the injunction. In December 2008, that injunction was made permanent by High Court Judge Mark Cooper in a Judgment which included a record $980,000 defamation damage award, after the Court struck out Mr Siemer's statement of defence and debarred him from defending himself. This action by the Court has seemed only to make Mr Siemer more determined to fight for his right for a jury trial. His appeal to the Supreme Court claims phrases cited by the Judges as violating the injunction were long ago removed or do not breach the injunction which was limited to Stiassny's role in the receivership and documents obtained through discovery. He openly taunted the Judges to charge him with perjury (a criminal charge which assures him a jury) if they were inclined to suggest his affidavit claim to this effect was inaccurate.
Though the earlier Supreme Court precedent
Mafart v Television New Zealand Limited [2006] 3 NZLR 18 seems to agree with Mr Siemer's grounds that it is the substance of the proceedings rather than the form it takes which defines whether a proceeding is civil or criminal, the Court of Appeal flatly rejected this argument even though the
Amicus Curiae Dr Rodney Harrision gave force to this legal position. The Bench relied instead upon antiquated common law remedies which the Crown voiced the New Zealand Courts have reliably used in cases of civil contempt. The Bench reinforced this with its own revisionist interpretation that what was indeed sought was very different from what the Solicitor General's application asked for
AND what the Full Bench of the High Court had actually granted. Boldly, the Court of Appeal pointedly changed the prison sentence to support its own interpretation.
In the New Zealand legal system, it is generally regarded more important to follow the judges than follow the law. To not do so is extremely dangerous when many of the judges in this land of 4 million people belong to the same clubs and share the same beach houses. In New Zealand, Lawyers can actually get disbarred for criticising NZ Judges. It is easier to understand early that integrity is an easier compromise for aspiring lawyers than their tertiary education.
As Mr Siemer seems determined to push this matter to breaking point, it will be interesting to see how the Supreme Court handles this appeal, particularly on the heels of the
Gregory verdict. # RETURN TO FRONT PAGE
[1] Judicature Act 1908, sec 19A (2)
JUDGE NUMBERS DOUBLE: COURT LOGJAM WORSENS
12 May 2008
According to a Ministry of Justice response to an Official Information Act request by
Kiwisfirst, the number of lawyers appointed judges in New Zealand has doubled in the last 25 years from 103 to 204. Despite this population explosion in active judges, trial backlogs plague the Courts at an unprecedented rate. Delays of a year or more are common.
The delays within NZ Courts have become so intolerable that a recent article in national police publication
PoliceNews called the crisis a
"national disgrace", saying the Police are tired of being apologists for the grossly inefficient court situation. The article cited statistics showing backlogs of criminal jury trials alone increased 57% in the last three years. It went on to state that, of those outstanding cases, 52% are more than 12 months old and 31% will not get a hearing within 18 months from charges being laid.
In a high profile case in March, Justice Judith Potter aborted a trial two weeks into it because it conflicted with her scheduled overseas holiday. A new trial will now be scheduled for next year.
The result is that many judges are choosing to release those criminally charged. In January, two men charged with assault were issued a stay of proceedings in the Christchurch District Court. If their trial had gone ahead, it would have been 26 months after arrest. A month later the High Court granted a permanent stay of prosecution to a St John of God Order member charged with historical sex offences - this after the trial had been delayed for more than 4 years.
The
Police Association is urging the government to take immediate action to improve the efficiency of New Zealand's judicial system. Outside of the obvious cost to justice posed by the inordinate delays, Police Association Director David Pizzini stressed the extraordinary amount of extra police work required to manage and keep track of witnesses during these long court delays.
How is it that 200 judges are finding it hard to keep up with the work 100 did just 25 years ago? You may be surprised at the reasons.
First, most judges today have a much lighter work load than their colleagues of a generation ago. This comes as no surprise to those who have experience with the Courts. Court today regularly commences at 9:30 am or 10:00 am, with most judges hanging up their robes well before 5:00 pm. Granted, a considerable portion of a judge's time is spent away from the courtroom browsing briefs and compiling judgments. But then the system liberally allows for this necessity with thin court dockets which offer many court-free days.
Moreover, punctuality has increasingly fallen victim to a system where the judge alone dictates the schedule and there is no incentive for the judge to be punctual. Indeed court time at trial is rarely recorded beyond the nebulous 'day' (or fraction thereof) yardstick. Even with these short court days, hearings are regularly convened 10-15 minutes late, morning and afternoon tea breaks rarely are limited to the official 15 minutes allotted and lunches commonly cut a hefty 1 ½ additional hours out of each day. It all adds up to a significant loss. The result is the constructive trial day in New Zealand seldom exceeds 5 hours. The situation has become so unmanageable that lawyers have almost universally dispensed with accurate billing of hours during trials in favour of a daily charge-out rate, much to the detriment of their clients.
This situation is worse for juries in criminal cases because lawyers often argue legal points in Court away from the jury. It is not unusual for a jury to spend less than 4 hours per day actually in Court hearing evidence - the rest of their time wasted away in a cloistered conference room.
Overseas 'conferences' and 'sabbaticals' are also increasingly being taken by judges and promoted by the judiciary as an enhancement to the quality of judicial decisions. This may be true but the obvious consequence is that less 'judging' is actually being done.
Next, while we are loath to admit it, years of inconsistent judicial decisions and lack of judicial discipline on seminal law has created a morass of irreconcilable court precedents, as well as outmoded and ambiguous laws. The resultant hotch potch has increasingly made appearing in New Zealand Courts a crap shoot in even the most straightforward of cases. The risk that a judge may rely on 'judicial discretion' or what a District Court judge in Palmerston North ruled last month to effectively overturn a House of Lord precedent which has stood for 100 years is all too real, if not common. The situation has become so out of control that Law Commissioner Sir Geoffrey Palmer has made it a primary mission of his to undertake a broad overhaul of the country's laws, an exercise that is currently underway.
It is perhaps a 'chicken and egg' dilemma then that the quality of judges (and resultant decisions) is often suspect. It is an open secret in the legal profession that finding highly qualified candidates for judicial appointments is a vexing problem in New Zealand; one that has gotten considerably worse in recent years. Even for a small country the current procedure is far too parochial, regularly appointing judges from within a close-knit social and political group of lawyers. Are the judges administering poorly because of historical lawlessness and ambiguity in court decisions - in turn causing highly qualified candidates to shy away from judicial appointments - or are the inconsistent rulings and poor administration a symptom of the poor quality of judges overall?
The average judge in New Zealand makes over $350,000 per year - not counting all the fringe benefits.
Wherever the problem started, it is obvious the situation is not going to get better until we take it seriously and demand better. Obviously, hiring more judges has only added to the problem. Back to Front Page
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