NZ Judges are basically a bunch self obsessed of Inbreeds!

ALL IN THE FAMILY

Suppose you awoke one day to find that by executive decree all but a couple of the 122 Members of Parliament were to be white Anglican, horse breeding lawyers who mix in the same tight social circles and whose priority is security of their possessions. If after they met the new Members passed a multitude of laws stating immigration is restricted to Europe and North America, horse breeders are exempt from paying taxes, the Northern Club is granted exclusive use of Albert Park for a new party facility and carpark and theft of property is now punishable by death, would this amount to a conspiracy on its face?

The answer is "No". It is human nature for people to make decisions which are rooted in self-interest. They do not need to collude to promote interests they share. The actions might further be considered egalitarian if the members were a mirror image of New Zealand and their actions were reflective of the mores of society. That non-horse breeders are left to pick up the tax burden, Albert Park users no longer have that enjoyment and NZ citizens from South America and Asia cannot have family members join them becomes merely a casualty of the balancing exercise where societal interests conflict.

The problem in a democratic and just society of course is if the decision making process appears arbitrary, is not transparent, subverts societal mores and benefits a privileged few at the expense of society on the whole.

It is inconceivable a democratic nation as diverse as New Zealand would accept the reins of power being vested in this parochial oligarchy. What few realise is that this has become the adopted model for the judicial branch of government since the loss of the Privy Council as the final appellate court in 2004. There is little diversity among New Zealand High Court judges, which includes Court of Appeal and Supreme Court judges. Only three were born off shore (all England) and two are Maori, although you could not tell by looking at them. If they all look like family, it is because they largely are. There are many cousins and even a husband and wife (Simon and Ellen France). The great majority are former Crown lawyers or children of past judges. It is not a conspiracy that they have a hard time recognizing white collar crime and the civil rights of individuals considering their privileged backgrounds and cloistered environs. If the Chief Justice has substantial shares in the state carrier, and the state carrier has been particularly kind in providing service and holidays to just a few of her judicial colleagues, it does not require a conspiracy for the appellate court to uphold a court verdict which had seemed a straightforward breach of antitrust laws. That the presiding judge alone controls the official record of what occurred helps to keeps things tidy.

That this is a huge problem for New Zealand was evident in the snickers from the business community to the announcement of PM John Key's futile dream that New Zealand become a financial hub along the line of Singapore. Even if the public are shielded by the shroud of secrecy which pervades many NZ court proceedings, business people with money to invest make it their objective to look at the economic and legal playing field. If the laws are found to not be equitably applied, investors want to at least know what the bribing regime is for judges. The problem for New Zealand is that while businesspeople see judicial decisions inconsistent with law and fact, they are told corruption of judges does not exist. They are left bewildered when a distinguished judge such as Susan Glazebrook on the Court of Appeal states from the bench she is not interested in whether a party has submitted fraudulent documents to the Court, refuses to look at the evidence this is so, relies upon the deceptive documents in support of the reserved judgment, then suppresses the court record.

Everyone now knows that after the Privy Council roundly chastised the New Zealand Court of Appeal for systemic legal abuses in Taito v R, Attorney General of the day Margaret Wilson led a coup to shoot the messenger and appoint the very Court of Appeal judges who were guilty of a homegrown brand of selective lawlessness to New Zealand's new court of last resort. What little judicial diversity - and redress - New Zealand offered before effectively evaporated.

One upshot of this incestuous consolidation of judicial power is that, in contrast to the United States or other Commonwealth countries, there is little realistic expectation that litigants in New Zealand will get an arm's length and fairer legal shake at the appellate court. Aside from appointing judges from a small social subsection in this land of 4 million people, the revolving door nature of the appellate court routinely has judges from the High Court sitting in judgment on the Court of Appeal and judges on the Supreme Court reviewing appeals of decisions they made when on the Court of Appeal.

Public ignorance of the nation's judges who exercise unbridled power is by design. The obscure selection process extends to the austere announcements of each appointment, ordinarily little more than a 100 word blip of tantalizing PR put out by the Attorney General. Court proceedings themselves are often black holes of information. Unless our desire to know who these people are and what they are doing forces a modicum of transparency, we have not learned the lessons of history.

New Zealand judges are not elected - 17 June 2010

New Zealand judges are not elected. They are effectively appointed without scrutiny, in secret, by two officials. Once appointed, they have the job for life and, for all practical purposes, are not held personally accountable for their actions. No judge has been removed from office in New Zealand history (although a few have resigned through the years under clouds of scandal).

Extremely little is publicly known about these judges who provide such a critical function to society. The risk of this public ignorance has been heightened recently by judicial conflict revelations.

New Zealand lawyers are indoctrinated not to express informed opinions of judges. A number of Crown lawyers responded to say they did not consider it appropriate to, or were prevented from, participating in a survey despite the survey being expressly anonymous. Lawyers were invited to post back the surveys in plain envelopes. 

No less than the New Zealand Law Society President made a public plea for lawyers not to participate.

These are the lawyers who have been educated to protect our democracy and freedoms. Can you imagine the Law Society and Crown campaigning to keep information on the official conduct of Members of Parliament from being made public?

A total of 730 lawyers and court-minders nationwide were sent this first ever survey of New Zealand judges and asked to evaluate only those judges they were familiar with. The response rate was disappointing, at less than 7%.

Only the 62 Judges in the High Court and above were included in the survey. The results were certainly enlightening, and often surprising.

Retiring Court of Appeal Judge David Baragwanath was the highest overall scorer at 9.1, with embattled Supreme Court Judge Bill Wilson pulling a dismal 3.1 in last place.

Lawyers were asked to score each judge on a scale of 1 to 10 in four categories; knowledge of the law, intelligence, personal character and fairness - as well as provide relevant comments. A survey with all '10's was not considered serious and discarded.

Though women comprise 21% of the judges surveyed, they captured half of the top ten spots and 3 of the top 5 in the rankings. The average rating for female judges was 7.75, compared to 7.50 for the men.

Male judges still scored, on average, higher in knowledge of the law and intelligence, but the women blew the men away on perceived fairness and integrity. If Judith Potter J - a definite outlier in the survey - was removed, female judges on average were considered an astounding 28% fairer in their judicial approach than their male counterparts.

The results from the survey also raised the disturbing possibility that the overall judicial pool is short on talent and that, with the possible exception of Sian Elias, the New Zealand Supreme Court is not the bastion for this scarce legal talent. There appears palpable fear by some lawyers responding that the Supreme Court is not as reliable as the Privy Council was.

Judicial independence was also regularly raised as a concern. So many of the current judges are related or engaged in business ventures together. There is little diversity on the court, with judges coming from many of the same law firms and clubs, and minorities virtually unrepresented. Several lawyers admitted to suffering through cases where the judges had potential conflicts of interest, afraid to raise it for fear of offending the judge and prompting retaliation. Comments were common that many judges act with overt bias on Crown cases.

These results strongly suggest that New Zealand consider re-evaluating the mechanism by which judges are appointed, promoted and monitored. A copy of the survey results has been sent to the Attorney General and New Zealand Law Society.

THE PURGE OF INCONVENIENT LAW in NZ - 20 April 2011

The denial of trial by jury to the eighteen Operation 8 defendants by judicial decree is now before the New Zealand Supreme Court. Though the New Zealand Bill of Rights Act, Judicature Act and Crimes Act all exhort the right to elect trial by jury, do not hold your breath that the Supreme Court will uphold the law and reverse the lower court decisions. 

At the fore is the ease to which the still infant Supreme Court has repeatedly cast aside statutory guarantees to trial by jury in the most spurious fashion. The lower court reasoning that a jury would use improper reasoning in its decision-making against these 18 defendants sounds too Orwellian to stand in law. But the Supreme Court has been masterful in creating fictitious reasons why such laws have not mattered in the past.

Variously the Supreme Court has stated issues are too complex for juries, trials too long or, simply, made a broad reference that trial by juries are not fair to juries or judges, or have been denied in some case in some other country.

The seminal right to jury, which has been a linchpin in the English legal system for 800 years, is being destroyed by judicial fiat in New Zealand. If you think the effects will be benign, or even positive, consider the following Supreme Court decisions.

In 2009, the Supreme Court, when prohibiting trial by jury in Wenzel v Queen, surreptitiously tagged on an irrelevant opinion to obscure contravention of clear statute when it ruled "The proposed grounds of appeal are quite hopeless. First of all, it is an impossible argument that a fair trial requires a trial by jury." The appeal did not state "fairness" as a ground: it relied upon Bill of Rights Act and Crimes Act guarantees. If this was not troubling enough, the Supreme Court relied upon a Canadian case, R v Lee, where the defendant did not show up for his jury trial, and then was denied one, as grounds why its decision to prohibit jury was consistent with the Canadian Charter of Rights and Freedoms.

Wenzel was facing 7 years in prison. In the subsequent judge-alone trial, he was sentenced to 5 years by District Court Judge Epati. In later overturning the verdict and ordering a new trial, the Court of Appeal pulled no punches in stating the Judge had failed fundamental principles of fairness and logic in finding Wenzel guilty. Equally troubling, the Judge dismissed charges against the lawyer who was Mr Wenzel's co-defendant and gave that lawyer name suppression without justification and without providing reasons. Fairness by judge-alone?

In Solicitor General v Siemer last year, the Supreme Court covered up the fact that the High Court ignored Mr Siemer's election to trial by jury by quashing the judgment and ordering a new conviction and penalty of three months prison, thereby meeting the Bill of Rights Act threshold for judge-alone trial. Proving the judges on the highest court are eminently more efficient at least than juries, the bench declared a new trial was not necessary because the Solicitor General's unsworn submissions from the bar were sufficient to confirm guilt.

Then there is the case of Gregory v Gollan, where the Supreme Court, in 2009, reaffirmed the lower courts were correct to use discretion to deny Mr Gregory's "application" for trial by jury. Gregory's counsel responded to the Supreme Court that an "application" was not required and was not made. He asserted Judicature Act, section 19 A(2) gave Gregory the direct right to "require" a trial by jury. Because the Supreme Court's actions were such a blatant contravention of the rule of law, Counsel requested Attorney General Chris Finlayson intervene in the public interest. Finlayson's office responded simply that judicial independence effectively means judges can pick and choose which laws they want to apply in New Zealand. For its own part, the Supreme Court refused to be pulled into defending its seemingly lawless decision and simply ignored the evident inconsistency brought to its attention.

We may not consider this issue important now, but there are profound reasons why trial by jury is central to egalitarian legal systems. History will judge New Zealand jurisprudence on this issue of trial by jury. And history has shown us that public complacency is an elementary factor in degradation of the rule of law by those in power.