Hard News by Russell Brown


A ramble through the Fourth Estate

When they're not behaving badly, the news media fill an important role in our democracy: that of the Fourth Estate. This role provides a thing that it is perilous for our elected representatives to offer – scrutiny of the judiciary.

All bets are that we're about to see this principle bite pretty hard this week, when Justice Bill Wilson offers his resignation in the wake of the report of the Judicial Conduct Commissioner on his repeated failure to declare that he owed a lareg sum of money to his business partner Alan Galbraith – and to recuse himself from cases argued by Galbraith.

The affair went up a notch when retired judge Sir Edmund "Ted" Thomas alleged in a complaint to the Judicial Conduct Commissioner, Sir David Gascoigne, that Justice Wilson made up a "fictitious" story to avoid disclosure.

The Commssioner doesn't appear to have thought much of Sir Edmund's claims ("Sir Edmund has drawn inferences and applied value judgments to what he had been told which were not warranted") but David Farrar ventured yesterday that Sir David's comment that "if the only subject of the complaints made about Justice Wilson’s conduct was his acts and omissions prior to and during the Court of Appeal hearing," it would not have been a matter for the panel …

… reminds me a bit of Watergate. It was not the original offence that caused so much trouble – it was the cover up. Now by this I don’t mean to suggest Justice Wilson has done a cover up. But that it was his responses to the Supreme Court’s questions that have resulted in the recommendation of a JCP, rather than his handling of the original case.

A number of journalists have pursued this story since it was broken by Nicky Hager for NBR the Sunday Star Times, among them the Dominion Post's Phil Kitchin.

We'll be talking to Phil Kitchin in this week's Media7, along with Jenni McManus of The Independent, who last year wrote an intriguing – and as yet unrepeated – report card on the judges, based on a confidential survey of top barristers; and NBR's Jock Anderson, who has been scrutinising judges for quite a long time.

We'll discuss this specific case, and other occasions when the bench has been in the news – including the acquittal of Judge Michael Lance on a charge of intentional damage after Judge Kevin Phillips ruled that the evidence from two members of the public who said they'd seen Judge Lance "key" a car blocking his driveway was "not the type of evidence that I could find Mr Lance guilty of this charge on."

And, of course, we'll look at the turf where the press and the bench most often square off – suppression orders.

If you'd like to join us, we'll need you at TVNZ between 5pm and 5.30. tomorrow. Hit Reply and let me know and I'll give you the details.

NB: One thing we won't be doing is this

3. Scandalising the court
The courts rightly protect themselves against anything which will undermine their dignity or interfere with their independence. However, this does not mean that courts cannot be criticised.
If a court makes decisions which outrage public opinion - such as a rapist being jailed for six months while a bicycle thief is jailed for three years - then it is the duty of the media to provide an outlet for that outrage. Bad decisions should be criticised in the media.
However, great care must always be taken in the way in which the courts' decisions are criticised. Anything reported which is likely to lower the authority of the court or bring it into public derision and contempt may be held to scandalise the court.
For example, you may criticise a judgment on the grounds that it is inconsistent with other judgments; or that it is out of touch with the public mood regarding the crime in question. That kind of criticism, strongly but fairly argued, should not be held to scandalise the court. However, the suggestion that a judge deliberately made an unjust decision, or that he was biased, or drunk, or incapable of carrying out his job, would be held to scandalise the court. You may discuss the issue, but you may not attack the person.

This form of contempt is, of course, controversial in itself, but I'd be obliged if you were to bear it closely in mind in any discussion of this post.

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