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Thread: Judicial conduct checking mechanism?

  1. #1

    Judicial conduct checking mechanism?

    In this post, Q.C. wrote:

    There is no "lack of checking mechanisms", as we have the Judicial Conduct Commissioner...Act 2004
    However, s 8(2) of the Act says:

    It is not a function of the Commissioner to challenge or call into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a Judge in relation to any legal proceedings.
    In fact, the above section seems to be the most common pretext for dismissal of complaints.

    Let's say that we have a decision of the Supreme Court were the judges knowingly (or in the best case, recklessly or due to their mental incapacity) made false statements. When that was squarely put to those judges in a subsequent recusal application, the judges refused to recuse, saying in their judgment that the recusal application was meritless. Of course, the judges entirely omitted the allegations.

    It would seem to me that such conduct (firstly, making false statements, and then effectively whitewashing that) indicates the lack of integrity. It would therefore make a good complaint to JCC. However, pursuant to s 8(2), JCC has no jurisdiction to consider it.

    So what "checking mechanism" would be in that case?

  2. #2
    Quote Originally Posted by FairHearing View Post
    In this post, Q.C. wrote:



    However, s 8(2) of the Act says:



    In fact, the above section seems to be the most common pretext for dismissal of complaints.

    Let's say that we have a decision of the Supreme Court were the judges knowingly (or in the best case, recklessly or due to their mental incapacity) made false statements. When that was squarely put to those judges in a subsequent recusal application, the judges refused to recuse, saying in their judgment that the recusal application was meritless. Of course, the judges entirely omitted the allegations.

    It would seem to me that such conduct (firstly, making false statements, and then effectively whitewashing that) indicates the lack of integrity. It would therefore make a good complaint to JCC. However, pursuant to s 8(2), JCC has no jurisdiction to consider it.

    So what "checking mechanism" would be in that case?
    FairHearing: If we had a JCC with integrity the "checking mechanism" is the JCC's right under the Act to determine if a Judge’s approach to, and conclusions upon, the issues before him are so wholly divorced from sense and logic, and if so, that gives rise to an issue of incompetence, amounting to incapacity.

    Such resulting incapacity, if confirmed, is an issue of conduct, which falls within the JCC's function.

    So your example would be covered by that ability of a JCC to deal with apparent incompetence. But as the previous Commissioner and the current Commissioner have no integrity, anything useful in the Act is irrelevant. Incompetence and/or corrupt decisions have immunity from the JCC.

  3. #3
    Quote Originally Posted by Q. C. View Post
    FairHearing: If we had a JCC with integrity the "checking mechanism" is the JCC's right under the Act to determine if a Judge’s approach to, and conclusions upon, the issues before him are so wholly divorced from sense and logic, and if so, that gives rise to an issue of incompetence, amounting to incapacity.

    Such resulting incapacity, if confirmed, is an issue of conduct, which falls within the JCC's function.

    So your example would be covered by that ability of a JCC to deal with apparent incompetence. But as the previous Commissioner and the current Commissioner have no integrity, anything useful in the Act is irrelevant. Incompetence and/or corrupt decisions have immunity from the JCC.
    FairHearing: On this topic I refer you to A-G v Chapman SC120/2009 [2011] NZSC 110, where Richardson J’s decision at [163] states:

    “…the nature and degree of the wrongful conduct may take the acts of the Judge outside jurisdiction. The proper exercise of judicial responsibility requires that the Judge act with integrity and competence…In extreme circumstances the Judge’s conduct may be so egregiously overstep the mark as to take the resulting decision beyond any colour of authority. While purporting to act in a judicial capacity a Judge who acts in bad faith or is grossly careless or indifferent to the performance of responsibilities can properly be characterized as acting without jurisdiction or in excess of jurisdiction."

    But, does our Supreme Court practice what it preaches?

  4. #4
    Let's say I'm a JCC of absolute integrity. I have a complaint that alleges prima facie false statements made in a judgment. I checked the judgment and I can see that the judge knowingly made false statements. But I can also see myself writing as follows:

    19. However, section 8(2) of the Act places an important limit on my jurisdiction. It expressly provides that it is not a function of the Commissioner to: "challenge or call into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a Judge in relation to any legal proceedings".
    20. Section 8(2) is in broad terms. It applies to decisions on the substantive merits of proceedings before a Court. It includes interlocutory rulings as well as final judgments. It also covers any other direction, instruction, order or decision by a Judge of a procedural or administrative nature relating to the proceedings in question.
    21. The provision does not allow me, as Commissioner, to question whether a decision is justified or the correctness of the Judge's reasoning. It also means that I cannot question the factual or legal accuracy of a decision or any part of a decision.
    22. In summary, my jurisdiction to consider complaints about a Judge's conduct does not enable me to question the legality and correctness of judicial decisions.
    ...
    25. ...However, in order to consider whether [the complainant's] complaints are or might be justified, I would need to examine the judgments of the Court of Appeal and Supreme Court and assess whether or not the judgments were incorrect in the ways alleged by [the complainant]. Again, because of section 8(2) of the Act, that is something that I cannot do.
    The above is an excerpt from a recent decision of Mr Alan Ritchie, the new JCC. I cannot say, based on the above decision alone, that Mr Ritchie lacks integrity. Based on the plain wording of the Act, it seems to me that the JCC indeed doesn't have the jurisdiction. Of course, on a judicial review, the High Court could find that the Parliament didn't mean exactly that, and in some cases JCC could examine a judicial decision, but in my view, such a finding would be overstretch. At least, it's debatable. Anyway, there have been judicial reviews, and the High Court said that the wording of the Act has the same meaning it conveys at the first glance: judicial decisions are out of bounds.

    My point is, there is no proper checking mechanisms. I think that the JCC and the Human Rights Tribunal Acts are deliberately worded in a way to relieve NZ judges from any accountability in relation to their decisions. JCC can investigate judges scratching cars, masturbating in public and so on. But JCC cannot do anything when the judges orders, for example, the sun not to rise tomorrow because the sun has maliciously burnt crops at the Chief Justice's farm. That's New Zealand law as it stands.
    Last edited by FairHearing; 11-02-2016 at 08:32 PM.

  5. #5
    Quote Originally Posted by FairHearing View Post
    Let's say I'm a JCC of absolute integrity. I have a complaint that alleges prima facie false statements made in a judgment. I checked the judgment and I can see that the judge knowingly made false statements. But I can also see myself writing as follows:...

    My point is, there is no proper checking mechanisms. I think that the JCC and the Human Rights Tribunal Acts are deliberately worded in a way to relieve NZ judges from any accountability in relation to their decisions. JCC can investigate judges scratching cars, masturbating in public and so on. But JCC cannot do anything when the judges orders, for example, the sun not to rise tomorrow because the sun has maliciously burnt crops at the Chief Justice's farm. That's New Zealand law as it stands.
    FairHearing: The issue you refer to is a 'conduct' issue, which a JCC with integrity knows he can investigate and rule on.

    I quote from the former JCC's letter of 11 June 2013:

    “If it became apparent to me that a Judge’s approach to and conclusion upon the issues was wholly divorced from sense and logic, then that could conceivably give rise to a claim of incompetence, amounting to incapacity. And that maybe seen as an issue of conduct.”

    If it is an issue of corruption a JCC with integrity can investigate and rule on it. I quote from the current JCC's Office's email of 4 August 2015:

    "The Commissioner's view is that if a Judge were knowingly to break the law, then that may, depending on the circumstances, lead to the Commissioner taking action in respect of that Judge under the Act."

    But we have systemic corruption so no laws have any influence on those corrupt decision makers, for example the JCC's.

    Also read the JCC's report to Parliament. He states he has received complaints about judges being corrupt in their decisions, but, on investigation, he could not find any evidence whatsoever of such conduct.

    Clearly the JCC Act gives the powers necessary to consider judgments against an issue of conduct, and the JCC knows that. That is not challenging the decision, that is dealing with inappropriate conduct, which is a JCC's function.

    Remember; a corrupt decision or a decision from an incompetent Judge cannot be a judicial decision. By its nature it must be a 'nullity' in the eyes of the law. So s.8 of the JCC Act is avoidable in that circumstance, by virtue of the JCC finding corruption or incompetence.
    Last edited by Q. C.; 11-02-2016 at 10:06 PM.

  6. #6
    Remember; a corrupt decision or a decision from an incompetent Judge cannot be a judicial decision.
    I agree with you. But based on the plain wording of the Act, the JCC cannot question a decision, so he cannot rule that the decision is not "judicial".

    I quote from the former JCC's letter of 11 June 2013: “If it became apparent to me that a Judge’s approach to and conclusion upon the issues was wholly divorced from sense and logic, then that could conceivably give rise to a claim of incompetence, amounting to incapacity. And that maybe seen as an issue of conduct.”
    The above is merely the JCC's opinion. It's not the law. I'm curious, what was the conclusion on the judicial review of the above?

    As I pointed out in my previous post, the Act can be legitimately construed either way, with the first-choice meaning is that it excludes all judicial decisions absolutely. When convenient, the JCC can consider the correctness of a judicial decision. When necessary, the JCC can apply the literal meaning and say he has no jurisdiction. One wouldn't know as to the JCC's integrity unless they compare three decisions (after all, the JCC can change his understanding of the law - I'd expect, once). In any case, whatever the JCC decides, the HC on a judicial review can turn it whatever way they want. To my knowledge, the current law is the literal meaning.

    So, as the hypothetical JCC of absolute integrity, I personally think that the Act allows me to question judicial decisions when the judge's conduct is in issue. But the HC case law says that I cannot. So I have to follow what the HC says, because it's the court's role to interpret the law. And I honestly think the HC was legally entitled to rule that way (whether it was ethical is a different, and for all practical purposes irrelevant, question).

    Of course, I agree with you that the law has no meaning when it's applied by those who lacks integrity. But my narrow point is that the JCC Act is flawed, which allows judicial decisions to be absolutely, and lawfully, excluded from its jurisdiction. The JCC's integrity is a different issue.

  7. #7
    Quote Originally Posted by FairHearing View Post
    ... So I have to follow what the HC says, because it's the court's role to interpret the law. And I honestly think the HC was legally entitled to rule that way (whether it was ethical is a different, and for all practical purposes irrelevant, question)....
    FairHearing: Before I comment - What HC case are you referring to?

  8. #8
    Quote Originally Posted by Q. C. View Post
    FairHearing: Before I comment - What HC case are you referring to?
    For example, [2013] NZHC 1655 at [8]-[12] in particular, [2013] NZHC 1853 and others - search judicial decisions online for the exact phrase "function of the Commissioner to challenge".

    I didn't analyse the judgments in detail, only skimmed them, but their direction seems to be clear.

  9. #9
    Quote Originally Posted by FairHearing View Post
    For example, [2013] NZHC 1655 at [8]-[12] in particular, [2013] NZHC 1853 and others - search judicial decisions online for the exact phrase "function of the Commissioner to challenge".

    I didn't analyse the judgments in detail, only skimmed them, but their direction seems to be clear.
    From reading the judgments it would appear, if they record the facts and issues correctly, that all is in order. However, the issues raised in these proceedings appear to be about systemic judicial and JCC corruption, therefore the accuracy and honestly within the judgments maybe an issue. Systemic judicial corruption usually has that outcome of; you cannot believe the decision.

    What is more likely is that the complaints to the JCC were not about "conduct", but about the individual judges getting it wrong in their decision by not recording the correct facts or issues. Generally speaking most complaints are incorrectly worded so that they challenge the judicial decision rather than challenging the "conduct". Thus giving the JCC direct access to s. 8(2) to escape.

    Those two types of complaints are completely different.

    With a 'conduct' complaint about, say, judicial corruption or gross incompetence the JCC cannot use s. 8(2). What he does is completely different. He decides that the complaint has provided "no real or persuasive evidence" in support of the allegation [which will be totally incorrect, if that type of conduct did occur] and dismisses the complaint under s. 16(1)(d) as "the complaint is frivolous or not in good faith" .

    On Judicial Review of the JCC's decision none of those arguments, or the actual facts, showing the irrefutable facts are completely opposite to the original judicial decision (thus the conduct of corruption or gross incompetence occurred), will be recorded in the Judicial Review judgment. Thus the JCC will successfully have the Judicial Review struck out.

    That is simply a fact on how systemic judicial and executive corruption works and how it is maintained.

    What is pleasing about that 'conduct complaint' process is that they (the judges and JCC) all have to blatantly lie in their decisions, so they can then hid behind legislation. Rather than under the other complain type, where they can directly hid behind legislation, that is s.8.

    Game, set and match you plebs of New Zealand, say the judges, A-G and JCC

  10. #10
    Quote Originally Posted by Q. C. View Post
    What is pleasing about that 'conduct complaint' process is that they (the judges and JCC) all have to blatantly lie in their decisions, so they can then hid behind legislation. Rather than under the other complain type, where they can directly hid behind legislation, that is s.8.
    I agree with all what you said in your previous post, except of the above quote. In my view, s8 helps to create the impression of legitimacy in both cases. E.g., one recent complaint said: "I do not seek to challenge or call into question the legality or correctness of any judicial decision. My complaint is solely focused on the Judges’ misconduct described above, irrespective of whether the Supreme Court was correct in refusing to hear the proposed appeal." In his decision, the JCC wrote: "[The complainant] submitted that the subject matter of his complaints raised questions of judicial integrity and reputation that did not involve a challenge to the legality or correctness of any judicial decision... ...However, in order to consider whether [the complainant's] complaints are or might be justified, I would need to examine the judgments of the Court of Appeal and Supreme Court and assess whether or not the judgments were incorrect in the ways alleged by [the complainant]. Again, because of section 8(2) of the Act, that is something that I cannot do".

    So I can say in my complaint that I challenge the conduct, not the decision. But the JCC will say either (a) he will have to examine the correctness of the decision to make a finding as to [mis]conduct, or (b) if he finds that the judge has misconducted himself, this will inevitably, albeit indirectly, raise a question as to the legality of the judge's decision (just as you said in your post); therefore, s8 applies.

    On a subsequent judicial review, I can say that as long as the JCC does not make express findings as to the legality or correctness of the decision itself (e.g., "the judgment wrongly states that..." as opposed to "in his judgment, the judge knowingly made a false statement that..."), then he is in compliance with s8. I will say that the consequences of the judicial misconduct, such as the potential illegality of the judgment, are of no concern to the JCC and do not fall under s8. But the judge in my judicial review will say I am wrong. He will say Parliament's intention was to prevent the JCC from interfering with judgments in any way, including indirectly. Of course, it will be expressed in a more politically correct way, but to that effect.

    What can be done is, once the JCC found he has no jurisdiction, the complaint can be forwarded to the head of the appropriate court (say, to the Chief Justice). Once the latter fails to take an appropriate action, a second complaint can be filed, now about CJ, to the effect that CJ has improperly dealt with the first complaint. Clearly, s8 would not apply. Of course, the outcome will then depend on the JCC's integrity. Now they will have to blatantly lie to dismiss it. Not a big deal.

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