Hard News by Russell Brown

This form of contempt is, of course, controversial in itself

No shit - its sedition for judges. But in a democracy, nothing should be above question. And if the reputation of the judiciary for fair decision making can't stand on its own merits, then I fail o see how threatening to chuck people in jail for questioning it does us (as opposed to judges who make poor decisions) any good whatsoever.

Fourth Estate, or Fifth Column?

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.

Um, who wouldn't be "scandalised" at the suggestion they're incompetent, dishonest and shit-faced on the job? Most of us, however, how have no recourse beyond defamation law or trying to rebut the charges in the public sphere. Can't see why judges should be any different.

Curious that they need a special word "scandalizing", rather than what everyone else has for the their reputation backstop - "defaming". Is that because you can't defame people if it's the truth, but you can scandalize them? Indeed, as Craig says, it's especially scandalous if it's actually true.

I the Jury - Spillane my guts...
nice to see the Fourth Estate starting to have a look at the Jury system too...

Having just been through the Jury service process last week, it was interesting to observe, it does seem to be a glacial process - for a whole week in two district courts only four juries were formed, there must be a huge backlog, as crimes still seem to be being committed...

The meat raffle selection technique and fate conspired such that I never made it to the final duty dozen...
So sadly the alleged minions of crime
were spared my dreadful wrath!
er, balanced judgement of facts presented...

I don't understand; what if a judge was in fact drunk or incompetent, or dishonest? What does one do then?

For what it's worth; I think judges have, like any other profession, rogue judges - those that do not do a professional job. 90% of judges do a professional job - and for the most part, well. I don't think that the cloak of justice should necessarily hide the remaining 10% of variable quality.

So long as the sanctity of justice is upheld, means should be found to ease such judges out, swiftly, before they cause much damage.

I don't understand; what if a judge was in fact drunk or incompetent, or dishonest? What does one do then?

Not talk about it - the same as you didn't talk about a drunk, incompetent or dishonest monarch back when they used to have sedition and lese majeste.

We're just supposed to accept their "authority", their natural right to not be questioned too closely about their behaviour. Screw that.

So long as the sanctity of justice is upheld, means should be found to ease such judges out, swiftly, before they cause much damage.

How do you get rid of people swiftly without threatening the independence of the judiciary? If it's too easy to get rid of "bad" or "incompetent" judges, how do you stop a government from getting rid of an inconvenient one?

It's not meant to be easy to get rid of judges. That's the price we pay for an independent judiciary.

I don't understand; what if a judge was in fact drunk or incompetent, or dishonest? What does one do then?

Contact the Judicial Conduct Commissioner.

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 Panel on his repeated failure to declare that he owed a quarter of a million dollars 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 Panel doesn't appear to have thought much of Sir Edmund's claims...M

1. There isn't a panel yet. The Judicial Conduct Commissioner doesn't appear to have thought... that some aspects needed to go to a panel.

2. You quote from DPF on this, without considering the rejoinder:

Finally, I hope my prediction that "the very decision to recommend that a Judicial Conduct Panel is required would deeply undermine Justice Wilson's position" turns out to be completely wrong. For the reasons admirably laid out by Richard Cornes here, "The constitutional imperative of judicial independence requires that no judge should be hounded from their court on the basis of media pressure."

I'd extend that claim to cover the "new media", and suggest to my fellow denizens of the blogosphere that it is far too early to call for "Justice Wilson to resign and return to practising as a lawyer" (something he cannot do, as a judge of the High Court, in any case). Let's allow justice to be seen to be done, even to a Justice.

1. There isn't a panel yet. The Judicial Conduct Commissioner doesn't appear to have thought... that some aspects needed to go to a panel.

Yeah, I realised that while I was out and away from the computer. Correcting now.

Ok forgive me for doing this, but i cant help draw a parallel with NzonAirs funding decisions.

Thou shalt not question the judges, nor call the judges character into question. It is at the sole discretion of the judges to interpet the law/mandate in any fashion as to support their decisions.

it's great that some brave souls in print media are turning the spotlight on NzonAir but we can hardly expect broadcast media to do the same...can we ?

and now back to your regualry scheduled broadcast.That decision to let the Masterton vigilantes walk is abominable.

Doesnt it set a dangerous precedent in following on from the guy who got home detention in christchurch for drunkenly killing a cyclist in his unwarranted car, or the bank robber, also in churtown, who got home d and the guy who chased and stabbed Pihema Cameron ?

I mean if you were to profile someone with a best chance of getting off a serious charge, you can't go past white middle class.

Isn't that also to do with cultural bias and elitism favouring itself ?

I think ScottY has nailed one of the important principals
We don't want it to be too easy to get rid of Judges

Another principal to remember is that judicial decisions are open to appeal. it is when they go all the way to the top swinging either way at each step that there is a concern that the law is an ass
But the appeal process allows mistakes to be corrected or is meant to

I've had a couple of interesting conversations about the Wilson case today.

I do think we shouldn't discount the system's ability to address the issues -- basically, nearly everything you've read in the papers has actually come out as a result of the process triggered when the Supreme Court got the evidence that suggested there could be a problem.

This isn't to discount the Fourth Estate's role -- some very good reporters have done good work here -- but I think it's important to note that the recall and the commissioner's report don't seem to have happened because of the reporting.

90% of judges do a professional job - and for the most part, well. I don't think that the cloak of justice should necessarily hide the remaining 10% of variable quality.

Sounds like you need some *national standards* so people can choose which court to attend

Fourth Estate, or Fifth Column?

I think you'll find the Herald has six columns where as the humble tabloid merely four...
(ducks for cover under a pendant cos it's raining)

I think the offence of scandalising the judiciary is past its use-by date, and I think it's inconsistent with the Bill of Rights Act (though the High Court has ruled otherwise).

But let's not get too carried away. Don't let it stop you criticising judges. It's hard to think of any criticism more trenchant than Vince Siemer's site www.kiwisfirst.co.nz, but he has not been prosecuted for scandalising (or even threatened with it, as far as I know). Jock Anderson has written some blistering attacks on particular judges (accusing Ron Young J of political bias, for example). Not a blink from the Solicitor-General. I wrote a scathing column accusing a district court judge of being rude, incompetent and unfair. No reaction. The Independent has now twice run articles evaluating the judges - giving some very poor grades. Nothing.

I'm aware of only two scandalising prosecutions in NZ in the last 15 years: against Nick Smith and TV3 for attacking the family court over a particular case (their comments were indeed flatly unfair and misleading, though still within the bounds of free speech, I'd have thought: the main reason for the finding of contempt against Smith was his attempt to bully a family court litigant into dropping her case); and against the marvelous Mr Van der Kaap, who (among other things) submitted that "the prick of Penlington J pisses on the urinal wall of society". That he should be jailed for that piece of poetry was itself scandalous, I think.

Yes, judges can sue for defamation, and some do. But others regard it as unseemly. (If nothing else, it puts the judge hearing the case in an awkward position). It's constitutionally difficult for judges to come out and defend themselves against criticisms in other forums. Anyway, judges insist that scandalising is not there to protect their own reputations but to maintain public confidence in the judiciary against unfair attack. The modern trend is for scandalising applications only to be made when the publicity is widespread, the criticisms serious and wrong, and the damage done by the scandalising material exceeds the harm done by drawing extra attention to it. Which makes most blogs pretty safe, for example. What's more, they'll probably get a warning before an application for contempt is made.

Like I say, I'd abolish it altogether if I could. It seems to be undergoing a resurgence in Aussie, and that's always a danger here. Still, I expect that it will not be used much and will eventually be culled back by Bill of Rights arguments. Serious, honest, factually-based criticism of judges is not really under threat.

I think the offence of scandalising the judiciary is past its use-by date, and I think it's inconsistent with the Bill of Rights Act (though the High Court has ruled otherwise).

Thanks Steven -- I'm just writing questions about this for tonight.

But let's not get too carried away. Don't let it stop you criticising judges. It's hard to think of any criticism more trenchant than Vince Siemer's site www.kiwisfirst.co.nz, but he has not been prosecuted for scandalising (or even threatened with it, as far as I know)

Oh yes. I've been looking at that site and planned to allude to it.