Legal Beagle by Graeme Edgeler

22

Bill Will II

A week-and-a-bit ago I took most of the day off to listen to the first day's argument in Bill Wilson's judicial review. The situation isn't one I've followed especially closely, but it's a fascinating and important case, and the boss didn't seem to mind.

I wasn't the only one. I recognised maybe five lawyers in the public gallery – quite packed for a legal argument – and I don't know all that many. Perhaps 20 people watching at any one time (with some coming as others were going), a packed media bench – three deep – and more silk than the playboy mansion: three High Court judges, three Queen's Counsel, and a Sir Edmund Thomas, a former Judge of the Court of Appeal (and QC).

Unfortunately, I didn't get to all of the afternoon session, and wasn't able to skive off work for much of the second day at all, but the three judges would do the public discourse a great service if the first thing they note in their judgment is exactly what they consider the allegations of misconduct that remain unanswered, and if proven, are so serious that they would warrant consideration of dismissal. Because that didn't seem to be clear to anyone. Media reports of the subsequent argument suggest David Goddard (representing the Judicial Conduct Commissioner) and Solicitor-General David Colins (representing the acting Attorney-General) may have done their bit to clarify matters – at least from their perspective.

So what happened?

A few years ago a company called Saxmere took issue with the something the Wool Board Disestablishment Company was doing. They sued. And won. The Wool Board appealed. And won. So Saxmere appealed. And part of its appeal was that one of the Judges in the Court of Appeal ruling was Bill Wilson. And that he had business interests with Alan Galbraith, who represented the Wool Board. That these interests weren't fully disclosed, and that because of those interests it would appear to an ordinary person looking at the case that Justice Wilson might have (unconsciously) favoured the side argued by his friend. The Supreme Court looked at it, and said “no”. Then Saxmere asked them to reconsider. They did, stating that they had been under a misapprehension about the nature of the business interest, and Saxmere had a point. They referred the matter back to the Court of Appeal for a new hearing. The argument has been heard, and we're waiting for a decision.

Saxmere complained about Justice Wilson to the Judicial Conduct Commissioner. So too did Ted Thomas, and a not-otherwise-involved concerned citizen, Mr O'Neill. Not only were there a number of complainants, there were a number of complaints. It was alleged Justice Wilson was actually biased. And that he had breached a prohibition recently added to the Judicature Act about Judges not being able to hold other offices without permission. These (and other) complaints don't really survive. As best as I can figure, the conduct that remains impeached is only around what Justice Wilson (by then a Judge of the Supreme Court) told his colleagues when they were first considering Saxmere's complaint about him. It doesn't appear to be about Justice Wilson's behaviour during the Court of Appeal case – he disclosed the existence of a relationship to the lawyer but only informally – or about any of the half-a-dozen other complaints. The only one supposedly serious enough to warrant his removal from office is the allegation he wasn't forthcoming enough with his Supreme Court colleagues – to the detriment of a party entitled to win its appeal. By the time his colleagues were considering the matter, Justice Wilson had to be scrupulously forthcoming with them. And Saxmere and others say he wasn't (Justice Wilson says he was, and moreover, offered to be examined on oath about it).

But whether this was the right thing to do isn't really what the judicial review is about. That's what the putative hearing of the judicial conduct panel will be about. Possibly. One of the arguments being litigated last week was whether the findings of the Judicial Conduct Commissioner that some matter couldn't be proved, or that some matter wasn't serious enough to be referred to a panel means that the panel can't look into them. Is it supposed to look afresh at everything, or only consider specific allegations referred to it by the Judicial Conduction Commission (via the (acting) Attorney-General)?

One of the things the Supreme Court found as a matter of fact during its second hearing was that Justice Wilson was “beholden” to Alan Galbraith. This was news to them, and the basis for it changing its mind. It was also news to Bill Wilson, who says they got this wrong – a view his lawyer told the court had been accepted by the Judicial Conduct Commissioner. Part of the judicial review may revolve around the extent to which the Judicial Conduct Commissioner is bound by the findings of the Supreme Court (Ted Thomas apparently says he is).

You can only get so much of a feeling for a case when you've heard two-thirds of one day's argument, presented almost exclusively from the perspective of only one of the parties (though we got pretty good coverage through Audrey Young at the Herald). There was the odd murmur or shaking-of-head from those with me in the public gallery who know more about the matter than me that indicates there will be differences over the facts and the argument. But there's hopefully enough to give you all a simplified – doubtless over-simplified – taste.

And what is Bill Wilson's argument in this judicial review?

It appears to have a number of strands, mostly focused on ways in which his lawyer, Colin Carruthers QC, says the the Judicial Conduct Commissioner stuffed up.

Primarily, before the Judicial Conduct Commissioner can recommend to the Attorney-General that a Judicial Conduct Panel can be appointed he has to be satisfied that an inquiry into the alleged conduct is justified, and that if proved, the (mis)conduct may warrant consideration of the removal of the judge (this is what section 18 of the Judicial Conduct Commission and Judicial Conduct Panel Act requires).

He says that even if the concerns left outstanding in the Commissioner's report were proved, they're not so serious as to warrant consideration of removal. And he may have a bit of a point. No judge has been forcibly removed from office in New Zealand, but those who have been removed overseas have tended to be removed over much more serious matters.

Over it's history the US Senate has tried 15 judges for consideration of whether they should be removed from office. One of those was Supreme Court Justice Samuel Chase – the only US Supreme Court to be impeached – whom Jefferson basically sought to have removed because of political differences; his acquittal set a standard that meant no-one seriously tried that again – someone might introduce an impeachment motion in the House, but it only takes it seriously if it's serious.

The US Senate is in the process of considering the removal of a judge from office now: Federal Judge G. Thomas Porteous, Jr. was impeached by the House of Representatives for a numerous matters including perjury and accepting cash from lawyers involved in a case. Serious. In 1989 Judge Alcee Hastings was removed for accepting a bribe (although he had been acquitted in a criminal trial), and was shortly thereafter elected a member of the House of Representatives, still serving Floridians 20 years on.

Most have been on charges of the like, but they haven't all been like that. The Senate removed West Hughes Humphreys for publicly calling for secession; giving aid to an armed rebellion; conspiring with Jefferson Davis; serving as a Confederate Judge; confiscating the property of Supreme Court Justice John Catron; and imprisoning a Union sympathiser with "intent to injure him". This gives the flavour of the type of non-criminal misbehaviour that might get a judge removed from office: conducts manifesting an unfitness to continue in judicial office.

There are examples from jurisdictions similar to New Zealand. Earlier this year, the Judicial Committee of the Privy Council in London recommended the removal of Justice Priya Levers of the Grand Court of the Cayman Islands. The Judicial Committee's press release carries a nice summary:

(i) The Board found that the comments critical of her fellow judges made on two occasions in court constituted serious misconduct in one case and were inappropriate in the other.
(ii) Madam Justice Lever’s interventions in the sentencing hearing in R v Bryan flagrantly violated the Bangalore Principles of Judicial Conduct, showed bias and contempt for Jamaicans and amounted to misbehaviour that would of itself have justified her removal from office. She was guilty of serious misconduct in attempting to procure the acquittal of a defendant by improper means in R v Irvalyn Bush and in making a recklessly inaccurate complaint against counsel in R v Parchment.
(iii) Among the family cases referred to the Tribunal, Madam Justice Levers was guilty of serious misconduct on three occasions. She made offensive and racist comments to a Canadian mother in the C litigation, demonstrated a similar attitude in suggesting that a Filipino mother go back to the Philippines and made a remark to SE which would be perceived as outrageously racist and would be wholly unacceptable from the bench anywhere in the world.
(iv) The evidence from a number of witnesses showed that after May 2007 Madam Justice Levers had formed a powerful dislike of the Chief Justice and certain of her fellow judges. She had disparaged them in private conversations with others involved in court administration, which crossed the line from indiscretion to become misconduct although not misbehaviour justifying removal from office on its own.

The range of descriptors used in this got a bit of play at the hearing. There is inappropriate behaviour. And there are indiscretions. And there's misconduct. And serious misconduct. None of that is serious enough to get a judge kicked from the bench. Only when what a judge has done amounts to misbehaviour, can that judge properly be removed from office. And when serious misconduct isn't high enough, you've got a pretty high threshold.

The Caymans weren't the only territory to trouble the Privy Council recently. Late last year it considered the position of Chief Justice Schofield of Gibraltar. His was a very different case, less concerned with misbehaviour that with fitness to continue in office. The Chief Justice had basically engaged in a campaign against proposed changes to the Gibraltan Constitution he argued affected judicial independence, and a bunch of other minor things said to add to the ultimate conclusion (including his illegal employment of a maid, and his defence of a charge a driving a car with expired registration). Tellingly, the Privy Council split four votes in favour of removal to three against. The details of the case are unimportant for our purposes, but some of the discussion about the standard needed to be reached for removal from office may be of assistance. The majority formulated four questions in its assessment:

(i) Has the Chief Justice’s conduct affected directly his ability to carry out the duties and discharge the functions of his office?
ii) Has that conduct adversely affected the perception of others as to his ability to carry out those duties and discharge those functions?
iii) Would it be perceived to be inimical to the due administration of justice in Gibraltar if the Chief Justice remains in office?
iv) Has the office of Chief Justice been brought into disrepute by the Chief Justice’s conduct?

Rephrase these questions slightly, and we might have the beginning of a standard against which to assess the conduct Justice Wilson has been alleged to have engaged in – but we should also consider the words of the minority:

Thus, before making a recommendation that a judge be removed, the question to be asked is whether the conduct for which he or she is blamed is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, would be undermined, rendering the judge incapable of performing the duties of his office.

It is a very high standard. Can failing to fully brief your colleagues, but offering to be examined on oath, really qualify? In a noted Australian case, Justice Lionel Murphy of the High Court of Australia (Australia's highest court) almost faced a similar enquiry. He had been convicted of attempting to pervert the course of justice, and following a successful appeal, and a retrial that resulted in his acquittal, questions remained about whether he was fit to continue in office. Legislation was passed to enable an inquiry by three retired judges (into matters not directly engaged in the criminal proceedings) but it was repealed before the inquiry concluded, following Justice Murphy's diagnosis with an untreatable cancer. Andrew Wells QC, one of the retired judges on the Commission of Inquiry wrote extensively, and his views got a fair amount of play in Justice Wilson's judicial review. Although the Commission never fully determined the matter, Wells' opinion has been influential in other Commonwealth cases: he had noted:

Somewhere in the gamut of judicial misconduct or impropriety, a High Court judge's conduct, outside the exercise of his judicial function, that displays unfitness to discharge the duties of his high office can no longer be condoned, and becomes misbehaviour so clear and serious that the judge guilty of it can no longer be trusted to do his duty. What he has done then will have destroyed public confidence in his judicial character, and hence in the guarantee that that character should give that he should do the duty expected of him by the Constitution.

...

Accordingly, the word “misbehaviour” must be held to extend to conduct of the judge in or beyond the execution of his judicial office, that represents so serious a departure from standards of proper behaviour by such a judge that it must be found to have destroyed public confidence that he will continue to do his duty under and pursuant to the Constitution.

This is arguably – as with most of the case – the standard to which the Judicial Conduct Commissioner ought to have found the allegations against Justice Wilson reached before recommending the Attorney-General convene a panel. But to know whether it reaches that standard will require a little patience on our parts. I don't anticipate it will be an excessively long wait for the decision, but this hasn't happened often – and never in New Zealand and very few people seem willing to take a punt.

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