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Thread: Judicial conduct checking mechanism?

  1. #11
    Quote Originally Posted by FairHearing View Post
    ... 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"....
    If your complaint was dealt with by the current Commissioner, I quote below the full text of emails to and from the JCC's Office"

    "Mr. Duffy

    I am totally confused by the Commissioner's decision, and attach my original complaint letters for reference.
    [The complaint was about gross incompetence or alternatively corruption]

    Using the Commissioner's logic - if a judge records in a judicial decision that they are going to break the law, or break the law by the decisions contents itself, that breaking of the law is not something the Commissioner can consider under the Act, as the allege criminal act is part of a judicial decision.

    Please confirm my understanding is correct of the Commissioner's logic, so I need not bother him with future complaints.


    Reply was:

    Dear Sir

    The Commissioner has asked me to respond to your email, sent yesterday, as follows:

    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.

    However, the Commissioner considers that your stated "understanding of [his] logic", as you have set it out, breaks down, as he takes the view that the Judges whom you have complained about have not, in any sense, broken the law.



    The above requires the Commissioner to consider the judicial decision against the facts to reach that conclusion - that there was no law breaking by the judges [which was in itself incorrect - they did break the law - being corrupt is a law breaking exercise].

    The only other way to determine if the judge is corrupt or not is for the JCC to get into the judges mind - which I understand is impossible. So logically we are left with the common sense approach under the Act - compare the judicial decision against what an honest judge with integrity would have decided judicially about the facts - that is a hypothetical legitimate decision. Parliament could not have been more logical in its intent in passing the Act

    If it is the same Commissioner maybe you should ask him to explain his inconsistency in 'policy' on how he interprets the Act.
    Last edited by Q. C.; 15-02-2016 at 12:37 PM.

  2. #12
    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.
    As far as I can apply the above to the complaint mentioned in my post, the JCC wasn't able to reach any view on that complaint as it required him, purportedly, to examine correctness of the decision, which he "couldn't do". In practical terms, that outcome is marginally better than a blatant lie to the effect that there was nothing suggesting corruption on the alleged facts of the complaint (what seems to have been said in your case). Frankly, I can understand the JCC. Given the facts alleged and the number and the names of the judges involved, any person in his shoes would be extremely reluctant to stick his head out, for his own safety's sake.

    [The JCC] takes the view that the Judges whom you have complained about have not, in any sense, broken the law
    As far as I understand, the JCC effectively said that he examined your complaint and found that "the Judges have not in any sense broken the law". In other words, the JCC said that regardless of his policy your complaint was bound to fail. I cannot really comment on this (apart from that s8 doesn't seem to apply to your case) as I don't know what was alleged and what was decided.

    Are you saying that the JCC went ahead and examined the correctness of a judicial decision in your case, i.e. compared what you alleged with what the decision said?

  3. #13
    Quote Originally Posted by FairHearing View Post
    ...Are you saying that the JCC went ahead and examined the correctness of a judicial decision in your case, i.e. compared what you alleged with what the decision said?
    Yes, how else could the JCC conclude that I provided "no real or persuasive evidence" that the judge was corrupt in writing such a falsified judicial decision.

    The allegation being that the Judge falsified his decision on material facts to achieve an outcome. A simple comparison of the material facts against the decision saying what those facts were - [they were the exact opposites]. Apparently that is not "real or persuasive evidence" of a corrupt act of the Judge under the Act, according to the JCC.
    Last edited by Q. C.; 15-02-2016 at 09:44 PM.

  4. #14
    I assume the "material facts" weren't disputed by the other party, were they? Did the facts relate to the merits of the case or to the procedure? Did you appeal? Was it in HC, COA, SC?

    In one of my cases, the HC judge cherry-picked one argument out of a number of arguments contained in a costs memorandum, dismissed it, and wrote in the judgement that "no other arguments were advanced". Was it something similar in your case?

  5. #15
    Quote Originally Posted by FairHearing View Post
    I assume the "material facts" weren't disputed by the other party, were they? Did the facts relate to the merits of the case or to the procedure? Did you appeal? Was it in HC, COA, SC?...
    The “material facts” are two affidavits filed by the Crown’s Councils: in brief:

    1. The Plaintiff (the Crown) claimed a document was in an earlier High Court proceedings evidence file and that that document was considered by the CoA and SC, therefore the High Court should find for the Plaintiff in the new proceedings.
    2. The Defendant (me) claimed there was no such document in the earlier High Court evidence file and the CoA and SC did not address that matter, therefore the High Court should find in the Defendant’s favour.
    3. Pre hearing the Defendant ask for discovery of the Document and matters relating to it.
    4. The High Court ordered discovery on the Plaintiff (the Crown) - to file affidavits producing the document or its copy; and if not in their possession to explain its whereabouts (as the Court and Plaintiff accepted the Document was not in the original High Court’s evidence file).
    5. The Plaintiff’s former Councils file two affidavits as discovery in support of their case and the discovery order. Neither affidavit attached any documents as discovery and between them advised the Court in the affidavits that they had never possessed the document (or its copy) and never filed it into the original High Court proceedings [which was their responsibility].

    6. The High Court ruled in the Plaintiff,s favour - on the basis that one of the discovery affidavits attached two bundles of documents in response to the discovery order and in support of the Plaintiffs case and that other affidavit explained the whereabouts of the document in the original High Court file, thus the CoA and SC had also considered the document.
    7. The CoA blocked the appeal on the basis there was no merit in the allegation that the High Court recorded incorrect facts about the two discovery affidavits contents.
    8. Because of the carful wording in the CoA decision, it was open to the SC to decide it did not have jurisdiction to hear the matter, which is what it ruled.

    The “material facts” (the Crown affidavits) do not reconcile with the judicial decisions of the Judges.

    Therefore the JCC had to decide whether the Judges of the High Court and CoA were:
    1. Grossly incompetent; or
    2. Corrupt, by what the decision achieved for others.

    He decided I had provided “no real and persuasive evidence” of the allegations made against the Judges, even though the JCC had the judicial decisions and the two Crown discovery affidavits.
    Last edited by Q. C.; 16-02-2016 at 09:40 AM.

  6. #16
    As far as I got it,

    1) In compliance with a HC discovery order, Plaintiff filed two affidavits which had no any exhibits attached. The HC falsely claimed that the affidavits had two bundles attached as exhibits.

    2) The Court and Plaintiff accepted (how?) the Document was not in the original High Court’s evidence file. Also, Plaintiff in their affidavits stated "they had never possessed the Document (or its copy) and never filed it into the original High Court proceedings". The HC falsely (?) said that "[one] affidavit explained the whereabouts of the document in the original High Court file" (I presume you are saying this was supposed to mean that the Document had been in the original High Court’s evidence file, unless under "the whereabouts" the HC meant "the lack of").

    Is my understanding correct?

  7. #17
    Quote Originally Posted by FairHearing View Post
    ...1) In compliance with a HC discovery order, Plaintiff filed two affidavits which had no any exhibits attached. The HC falsely claimed that the affidavits had two bundles attached as exhibits.

    2) The Court and Plaintiff accepted (how?) the Document was not in the original High Court’s evidence file. Also, Plaintiff in their affidavits stated "they had never possessed the Document (or its copy) and never filed it into the original High Court proceedings". The HC falsely (?) said that "[one] affidavit explained the whereabouts of the document in the original High Court file" (I presume you are saying this was supposed to mean that the Document had been in the original High Court’s evidence file, unless under "the whereabouts" the HC meant "the lack of").

    Is my understanding correct?
    Almost:

    In relation to your reference 1: The HC falsely claimed that one affidavit attached two bundles as exhibits and that the other affidavit [again without exhibits] simply referred to the whereabouts of the document in the original HC file.

    In relation to your 2: How was it accepted that the document was missing? In open Court, at the discovery hearing, the Plaintiff's Counsel accepted that the Plaintiff's previous Counsel in another earlier and separate hearing (an Injunction hearing) had agreed the document was "missing" from the file [as recorded in that judgment] and that was accepted by that Court. Counsel at the discovery hearing agreed discovery was in order as he accepted the document was still missing: and

    "the whereabouts"? The affidavit stated that he did not tender the document to the original HC [which was his responsibility at that original hearing]. The HC's "whereabouts" could only be interpreted from the affidavit that it was not tendered and not in evidence, which is not what the judicial decision found, it found the opposite based on what the Court recorded as to what those affidavits discovered and swore 'the falsification' - the document was always in evidence and therefore considered in the original HC proceeding.
    Last edited by Q. C.; 16-02-2016 at 11:13 AM.

  8. #18
    What you described seems typical NZ "justice" to me. But since we are talking about the JCC, how did he address your claim #1? Have you expressly claimed that the judge knowingly or recklessly made a false statement regarding bundles?

  9. #19
    Quote Originally Posted by FairHearing View Post
    ... But since we are talking about the JCC, how did he address your claim #1? Have you expressly claimed that the judge knowingly or recklessly made a false statement regarding bundles?
    The complaint to the JCC was about breach of judicial oath, claiming:

    "The breach of Oath is evident by their perversion of the cause of justice in the following manner in their decision... The common thread in all the below paragraphs, is that in each case rather than recording the facts, they perverted justice and by lack of transparency the reader of their opinion, by deliberately recording material false facts and omitting material facts:

    At [12] they stated for the readers, and justice, perversion that the...1st Crown... affidavit attached two bound volumes of documents in response to Justice Lang’s discovery order...

    ...Nothing could be more remote from the truth. As the affidavit...Attached no documents, let alone two bound volumes....it Swore at its paragraph 5 that they never... have “ever had such a document in its possession”. Swore at its paragraph 6 they...neither “hold, nor has ever held, a copy of the Document.

    The Judges knew they could not record the truth, as it would conflict with their desired decision at [87], where they ruled that the Document went into evidence
    [from the Crown].


    5 or 6 further material false facts or omissions in the judicial decision were quoted to the JCC and compared to the actual documentary facts (all third party produced documentary facts were provided to the JCC).

    The JCC addressed the complaint by ruling that the High Courts own produced documents and the affidavits of the Crown Counsels, that conflict with the judicial decision, are not "real and persuasive evidence" in support of the allegation against the judges.
    Last edited by Q. C.; 16-02-2016 at 04:19 PM.

  10. #20
    Quote Originally Posted by Q. C. View Post
    The JCC addressed the complaint by ruling that the High Courts own produced documents and the affidavits of the Crown Counsels, that conflict with the judicial decision, are not "real and persuasive evidence" in support of the allegation against the judges.
    Hmm... It appears that the JCC was "not open to persuasion" (i.e., was actually biased). I am curious what kind of evidence he considers "real" and what his criteria of "persuasiveness" are. They sound like entirely subjective terms.

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