www.kiwisfirst.com


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

**************************

NEW ZEALAND SUPREME COURT SPINS ANOTHER FACT

2 August 2012
The absence of an independent bar or arm's length appellate courts in New Zealand allow the Supreme Court to increasingly make it up as it goes.  SEE THE LATEST CASE WHICH HAS SURFACED

 

GLAZEBROOK APPOINTED TO THE SUPREME COURT

31 July 2012
The New Zealand Supreme Court has added a further element of unpredictability with the appointment of Susan Glazebrook by Attorney General Chris Finlayson.  Glazebrook was one of the more emotional and erratic Court of Appeal judges but was also seen generally to be one of the more respectful of human rights.

High Court Justice Christine French was appointed to the Court of Appeal to fill the slot.

 

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

 

 

 

 

 

 

 

 

 

 

New Zealand Judge files

Information on New Zealand Judges compiled from public and private sources, including all information submitted by the judges themselves

Justice YOUNG, William Gillow Gibbs Austen

 

 

Professional Data:    2010 Judge Survey Score (1-10) Ranking (out of 60)

Postion & Titles: QC, Former President of the
Court of Appeal, knighted by the New Zealand government in 2009
Judge of: Supreme Court 2010 Previously High Court Christchurch, 1997
Specializations and Professional Interests: Politics and litigation, Criminal practice committee 2004
Professional Comments:

Justice Willy Young has long political ties and connections developed within the Serious Fraud Office in the days before it was exposed as a political animal.  William Young J has astutely climbed the judicial ladder, trumping fellow justice Robert Chambers (the more intellectual candidate) for the Court of Appeal presidency in 2006 and with his appointment to the Supreme Court in late 2010.  

"Sir" William Young is extremely adept at the dispensing and collecting of political favours, going back to his days as a SFO lawyer when he unduly protected his cousin John Austen, then Chairman of Fortex (meat works) from prosecution in a company fraud that saw hundreds of hard-working Kiwi's cheated out of vast sums of money by his cousin and other management.  Two directors were convicted of criminal fraud and were sent to prison but Judge Young's cousin was never prosecuted.  Though William Young J was working for the Serious Fraud Office, he fed his cousin inside information, charging him $42,000 for this information which successfully evaded the SFO prosecution.  Winston Peters was the first to expose William Young's sordid legal dealings in Parliament in the 1990's.      

Justice Young has demonstrated a restrictive view on human rights, both on the Court of Appeal and the Supreme Court.  In 2011, in Attorney General v Chapman, Young J joined with McGrath and Gault JJ in the majority ruling that violations of human rights guaranteed under the New Zealand Bill of Rights Act 1990 and International Convention are not enforceable against judicial officers.  Elias CJ and Anderson J dissented. 

In the seminal rights case of Brooker v Police, Young wrote the Court of Appeal opinion, ruling that a peaceful protest on a residential street amounted to "conduct... disorderly and objectionable.  ...I believe the appellants were properly convicted."  In 2007, the Supreme Court of New Zealand overturned his decision. 

Also in 2007, in Siemer v Stiassny, Justice Young wrote the opinion that protected Auckland insolvency accountant Michael Stiassny from an accounting corruption scandal which threatened to expose $500 Million in inflated valuations at power lines company Vector Energy designed to manipulate the sharemarket (William Young's brother Neville was a director of the Electricity Commission).  The Supreme Court later ruled Judge Young was not biased at the same time they refused to hear the evidence.  Justice Young had unsuccessfully tried to suppress the hearing transcript which showed he had altered witness testimony under cross-examination.

Court of Appeal President Young enjoys a good intellectual debate but is basically lazy, generally taking very little in the way of notes in proceedings.

It is widely considered that Young's appointment as President of the Court and then the Supreme Court is because he poses little if any threat to the other judges, all of whom are aware of Young's sordid past as a lawyer.  As a result, President Young has been forced into the no-win position of protecting other judges who go off the rails, a situation that invariably results in bringing legitmate disrepute upon the Bench. 

Justice Young is intoxicated by the baubles of power and was routinely chauffered around Wellington in a black government limousine back when he was on the Court of Appeal.    (The Ministry of Justice refused an Official Information Act request from kiwisfirst requesting to know how much his chauffer and limosine is costing taxpayers on the basis courts are "independent" of government). 

Supreme Court Justice William Young has little regard for individual civil rights. He is also fixated on preventing transparency into conduct within proceedings and in the conduct of the Court in particular.  In 2010, William Young was instrumental in a formulating a policy shift (along with Mark O'Regan, Susan Glazebrook JJ and Judge Roderick Joyce of the Rules Committee) which severely limits parties' access to transcripts in their own proceedings, even for the expressed purpose of supporting an appeal.  The Registrar has been instructed to respond to such requests with the statement "Consideration of appeal options should be by reference to the Court's judgment, not what was said at the hearing".  The Court of Appeal now routinely refuses to release transcripts to the parties on the spurious ground it costs the court money - even where the parties have offered to pay for the service.   

Perhaps inconsistently, Supreme Court Justice William Young is very conscious of his personal image in orchestrating such Machiavelian measures to prevent transparency into Court proceedings and consequently attempts to portray himself as being above the fray.  If Justice Young could escape his criminal past as a lawyer, and shake off the corrupting effects of power, he might be an honourable judge.  Colleagues remember a young lawyer who was sensitive and level-headed.  The problem for now is that Justice Young is beholden to too many shady characters to break into being his own man at this stage of his life.

 

Background / Education: Educated at Christ's College (high school).  Graduated LLB (Hons) from the University of Canterbury and later gained a PhD from Cambridge University in 1978. He joined the Christchurch firm of R A Young Hunter and Co in 1978, leaving in 1988 to practise as a barrister. He was appointed a Queen's Counsel in 1991, to the High Court in 1997 and to the Court of Appeal in January 2004. Justice Young became President of the Court of Appeal in February 2006.
Degrees:  LLB (Hons) Canterbury,
Admitted to the Bar: 1978
Company Involvements: Shareholder, Byron Properties Ltd
 

Personal Data

Born:

14/04/1952
New Zealand

Sex: Male
Married: 1979
Susan Mary
Children: 3 (Nicolas Williams Austen b. 1982, Charlotte Rose b. 1984, Thomas Edwin Henry b. 1988)
Interesting Relationships and Coincidences:  Willy's brother Neville Young is a former National Party President and director of the Electricity Commission.
Miscellaneous:  Not particularly bright and has an extensive history as a dishonest lawyer.  These character weaknesses make him an easy mark for exploitation by powerful forces.

 

 

Justice William Young graduated LLB (Hons) from the University of Canterbury and later gained a doctorate from Cambridge University. ...
www.courtsofnz.govt.nz/about/appeal/judges.html - 22k - Cached - Similar pages

Simcock's Appeal Dismissed

William Young J. Appearances:, J R Billington QC for Appellant ... there has not been a miscarriage of justice for the purposes of 385(c) of the Crimes Act ...
www.flatrock.org.nz/news/r_v_donald_hugh_simcock.htm - 82k - Cached - Similar pages
Legislation Advisory Committee: EVALUATION FORM
... of legislative policy: Ruminations on the impact of the Sentencing Act 2002 on sentencing practice and prison musters, The Hon Justice William Young ...
www. justice.govt.nz/lac/ pubs/2006/evaluation-form-2006.html - 11k - Cached - Similar pages

Annual Reports - Institute of Judicial Studies: Annual Report: 1 ...

The Honourable Justice William Young, Governing Board and Court of Appeal & High Court Education Committee; His Honour Judge P D Mahony, Family Court ...
www. justice.govt.nz/pubs/courts/ annualreports/ijs-annual-rept/report-03-04.html - 37k - Cached - Similar pages
[ More results from www.justice.govt.nz ]

Speech Chief Justice William H. Rehnquist - April 9, 2001

REMARKS OF THE CHIEF JUSTICE WILLIAM H. REHNQUIST ... Chief Justice Warren himself married a young widow born in Sweden named Nina Palmquist Meyers. ...
www.supremecourtus.gov/ publicinfo/speeches/sp_04-09-01.html - 18k - Cached - Similar pages

Chapman Tripp - Resource Library - Supreme Justice:

The Court of Appeal (Justices McGrath, Glazebrook, O'Regan and Hammond, with Justice William Young dissenting) held that: ...
www.chapmantripp.co.nz/resource_library/ published_article.asp?id=3905 - 40k - Cached - Similar pages

 

 

THE OFFICE OF THE JUDICIAL CONDUCT COMMISSIONER REVEALED

Dateline:1 May 2007
Three years ago the New Zealand government passed the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 with the intent of investigating and disposing of complaints of misconduct lodged against judges.  There was a general sense at the time that the existing means of investigating judicial misconduct - namely, referring the matter to the Head of that Court - did not facilitate an open and just disposal of the complaints.  Because the complaints, once lodged, seemed to die with the Head of Bench with no outcome visible to the public, the Act provided a new 'independent' oversight and disciplinary process to handle formal complaints made against specific judges. 
 
The Act expressly stated that the purpose of the Act was "to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system".  Rather than rely upon the Head of the Bench to discipline or remove one of his or her colleagues, the Judicial Conduct Commissioner (JCC) was given the power to refer complaints directly to a Judicial Conduct Panel, this panel appointed for the expressed purpose of formally investigating the complaint and making disciplinary recommendations directly to the Attorney General.  Instead of reporting to another judge or the Ministry of Justice, the JCC reports to Parliament.  For some reason that can only be classified as bizarre given its mandate, the OJJC nonetheless receives its funding through the Ministry of Justice and, hence, falls under its control.
 
With this somewhat inauspicious beginning in 2005, the first Commissioner was appointed by the Governor-General upon the recommendation of the House of Representatives.  Resultantly, Ian Haynes, a senior partner with the law firm Kensington Swan, was appointed as JCC, where he remains today.  While Mr. Haynes is generally respected and unquestionably experienced in the law, a major problem would seem to be that he is a practicing lawyer in the New Zealand Courts. Coincidentally, Kensington Swan was the largest benefactor of legal aid last year, having received $2.26 Million.  All of this would seem to create an environment where the left hand would be wise to watch out for the interests of the right hand.  But rather than make assumptions, let's look at the evidence and what the Commissioner had to say.
 
Through March 2007, the Office of the JCC had received 172 formal complaints against certain judges.  As of this story going to press, not one complaint has been deemed worthy of referral to a panel for formal investigation.  When Mr. Haynes was recently asked why none of these complaints seemed to warrant an investigation, he was quick to 'correct' the record and state that 5 complaints he received had indeed been referred to the Head of the Bench.  As to the troubling question why he would refer complaints back to the Head of the Bench rather than appoint a panel (mindful that the Act was created to provide an independent alternative to the Head of the Bench), Mr. Haynes pointed out that this was still one option open to him, but then added that there were also some complaints not disposed of that may yet go to a Panel.  He stated some complaints were destined to go nowhere because they disputed a judge's findings and such complaints must be dismissed in accordance with the Act.  As to problems posed by the fact that he is a practicing lawyer who must answer to these judges, Mr. Haynes claims this is not a problem because he never appears in Court.  But 172 complaints?  The answer again is that some of these have yet to be investigated.
 
Given the significant number of complaints against judges, it may partially be the case that the job is a bit overwhelming.  An official request of the Ministry of Justice disclosed that the Office of the Judicial Conduct Commissioner has only one part-time employee in addition to the Commissioner.  The total annual budget for the office is $134,000.  To put this budget in perspective, a lawyer can easily earn this much on one case.  As to how much of this is remuneration to the Commissioner, Mr. Haynes would not be drawn in, replying only that he was certainly not doing it for the money.  So why is he doing it?  To this Mr. Haynes replied that he had been asked by the Governor General and considered it his duty to comply with the request.  As phone interviews go, it was difficult not to be impressed with his sincerity.
 
Not that certain aspects of Mr. Haynes job haven't caused him discomfort since his appointment.  He has made several suggestions for Amendments to the Act in his last annual report.  One suggestion is to allow the Commissioner to defer to a substitute where the JCC has an obvious conflict of interest.  According to Commissioner Haynes, three such cases have so far been presented to him, including one against High Court Justice Judith Potter who is a former partner of his at Kensington Swan.  To his chagrin the response he received is that he still must decide these complaints personally.
 
Another recommendation he has made is that the Commissioner be allowed a fourth option in disposing of a complaint (the current three being dismiss the complaint, refer the matter to Head of Bench, or recommend the appointment of a Judicial Conduct Panel).  Mr. Haynes considers that being allowed to "take no further action" would be an appropriate fourth alternative where the complaint has some merit but the judge has either apologized or provided an explanation satisfactory to the complainant.
 
One gets the sense in talking with Commissioner Haynes that, while he seems genuinely committed to his role, he feels hamstrung and a bit frustrated with it all.  Nevertheless, the source and extent of his frustration  - or merely an acknowledgement that he suffers frustration - are clearly not something he is prepared to discuss.  He says he answers only to Parliament and evades issues he considers inappropriate or off-limits with the adeptness of a diplomat.  Nonetheless, one also gets the impression he has little interest in continuing as Commissioner once his current appointment expires next year. # Return to Front Page
 
 
 
 
 
 

The Kiwis First forum, the kiwisfirst.co.nz website, pages, content and any Internet mirror thereof are the works of SPARTAN NEWS LIMITED, a New Zealand Registered News Media Company. Copyright Notice & Disclaimer.

©2007 SPARTAN NEWS LIMITED.