Regulation required if judges can’t be trusted

Liam Baldwin | Friday April 16, 2010 – 03:59pm

There is a fundamental flaw in the Guidelines for Judicial Conduct in that they are not binding.

The guidelines, which were kept secret until late last year, were coincidentally publicly released after the repeated badgering of the Crown Law department by judge-busting lawyer Sue Grey.

The purpose of the guidelines, dated August 2005, was to “provide practical guidance” to judges.

“The general principles can readily be accepted as standards all judges in accepting appointment agree to live by and the public of New Zealand is entitled to expect in judicial conduct.”

However, the guide is not intended to be a code, it self-decrees. “It does not identify judicial misconduct. It is advice.”

But, given the judicial rort that surrounds the precarious situation of Supreme Court judge Justice Bill Wilson, the government should start to look at these guidelines as an opportunity to create statutes – laws that actually govern what a judge must reveal before sitting on a case.

Justice Wilson was a fresh-faced Court of Appeal judge when he sat on a case between superfine wool producer Peter Radford against the Wool Board Disestablishment Company (Disco). He was part of a panel that overturned a High Court ruling in favour of Mr Radford.

Queen’s counsel Alan Galbraith was Disco’s lawyer. He was also Justice Wilson’s business partner and friend.

Because of Justice Wilson’s failure to be completely honest about aspects of his personal business dealings, a mockery is being made of the judiciary. If the government finds itself unable, or unwilling, to do anything about it, the least it should do is seriously consider sweeping changes to the rules.

The guidelines actually go on to explain further why they should only be an advisory.

These guidelines are not principally concerned with the sort of misconduct which would justify removal from office. They are concerned with the promotion of higher standards of conduct.

No system of discipline to impose and support a code of conduct for judicial officers exists in New Zealand or comparable jurisdictions for good reason. It would undermine the fundamental principle of judicial independence.

The guidelines claim judicial independence is not protection for judges but for the people of New Zealand.

In the case of Justice Wilson, the disqualification of judges’ guidelines are particularly pertinent.

The judge must be alert to any appearance of bias arising out of connections with litigants, witnesses or their legal advisors. The parties should always be informed by the judge of facts which might reasonably give rise to perception of bias or conflict of interest.

Justice Wilson failed to do this. There was some attempt to point out the nature of the relationship he had with a lawyer who appeared before him, but the true scope of it was only made clear when it was prised out of him by the Supreme Court.

If that wasn’t enough, there’s more.

Judges should disqualify themselves if in a close relationship to litigants, legal advisors or witnesses in the case. It is impossible to be categorical about the relationships which may give rise to concerns about impartiality. Clearly close blood relationships or domestic relationships are disqualifying.

That seems clear. However, it might not have been clear to Justice Wilson – it doesn’t specifically refer to bloodstock.

Justice Wilson is, or was, friends with Alan Galbraith QC, apart from being a business partner. Mr Galbraith is, or was, clearly friends with Chief Justice Dame Sian Elias. These three, along with Dame Sian’s husband Hugh Fletcher, also had shares in racehorses together.

But, wait, there’s more.

Shareholding in litigant companies or companies associated with litigants should be disclosed. They should always lead to disqualification if the shareholding is large or if the value of the shareholding would be affected by the outcome of the litigation. Where the shareholding is small, full disclosure should still be made.

Justice Wilson and Mr Galbraith each held 50% of Rich Hill Ltd. A 50% shareholding is considered substantial. In additions, this was a company that owned land worth millions of dollars. There was also debt which led to the Supreme Court concluding Justice Wilson was financially indebted to Mr Galbraith.

It is impossible to be categorical about relationships which give rise to disqualification but a judge should always disqualify himself or herself whenever a party, lawyer or witness of disputed facts is a close blood relative or domestic partner of the judge or a close relative of the judge or where such person is a close friend or business associate of the judge.

It is purely semantics to argue the fine points of the guidelines because, as they point out, they are simply guidelines and not absolute rules.

The intent of the guidelines is clear. Justice Wilson should have fully disclosed his business relationship with Mr Galbraith even prior to the Court of Appeal case being considered.

If New Zealand can’t rely on a man’s integrity, then the government must regulate. It has no reasonable choice.

See also

Supreme Court judge accused of ‘fictitious’ story

By PHIL KITCHIN – The Dominion Post