Contents

Chapter 6
Abusive allegations and false accusations against judges and courts

Introduction

6.1This chapter deals with abusive allegations and false accusations made against judges and courts that are published and have a real risk of undermining public confidence in the judiciary as an institution.458 As already noted,459 public confidence in the independence, integrity and impartiality of the judiciary needs to be maintained because the general acceptance of judicial decisions, by citizens and governments, is essential for the peace, welfare and good government of the country.460 In this context, courts may invoke contempt of court in the public interest to punish those whose actions constitute false and egregious attacks on the integrity and impartiality of members of the judiciary, thereby impugning the integrity of the judiciary and adversely affecting the rule of law.
6.2It is important to emphasise at the outset that the purpose of this contempt of court is to uphold public confidence in the independence, integrity and impartiality of the judiciary as an institution, not to vindicate the judge as a person or to protect the feelings of individual judges.461 As Laddie J said in Re Swaptronics Ltd: “It is all too easy for a court to be impressed by its own status”.462
6.3It is also important to emphasise that this contempt is not designed to prevent or deter legitimate criticism of court decisions or the views of judges expressed in those decisions or in papers or speeches. The right to freedom of expression, now affirmed by the New Zealand Bill of Rights Act 1990 (NZBORA), extends to criticism of judges and courts. The New Zealand Court of Appeal has always recognised the right of the media and the public to criticise courts and their work. In Re Wiseman North P said:463

… we wish to make it perfectly clear that Judges and Courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. No wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, public acts done in the seat of justice.

Similarly, in Solicitor-General v Radio Avon Ltd, Richmond P said:464

The Courts of New Zealand, as in the United Kingdom, completely recognise the importance of freedom of speech in relation to their work provided that criticism is put forward fairly and honestly for a legitimate purpose and not for the purpose of injuring our system of justice.

6.4Criticism of the judiciary and its work is important in a democratic society and can play a significant part in increasing public confidence in the justice system rather than undermining it. No one can object to criticism of this nature. Modern judges generally accept that, as public figures responsible for upholding the rule of law and determining criminal and civil cases, which are often contentious and where invariably there is an unsuccessful party, they need to be robust and resilient in the face of criticism. Respect, like reputation, is earned by the timeliness and quality of their work and not conferred by any status attached to their office.

6.5There is also growing recognition that many criticisms are best ignored, especially perhaps those that are so extreme as to be simply unbelievable. As two of the Judges of the Ontario Court of Appeal put it in R v Kopyto, the criticisms there were “so preposterous that no right thinking member of society would take [them] seriously.”465 Put another way, if there were any substance in criticisms of this nature, the public would be entitled to expect steps to have been taken to remove the judge concerned from office. Inaction in this regard may serve to confirm that such criticisms have not been taken seriously by those responsible for taking such steps.
6.6At the same time, when criticism becomes abusive or contains false allegations or accusations that undermine public confidence in the independence, integrity and impartiality of the judiciary as an institution, action may be required. As the Hon Paul East, when Attorney-General, put it:466

Constitutionally, the Judges can speak only through their judgments and cannot, by convention, publicly answer any criticism. The Attorney-General assumes responsibility over criminal contempts of court, whether arising in respect of criminal or civil proceedings, which undermine public confidence in the administration of justice. The Judge can deal with matters of contempt that occur in the face of the Court, but once it occurs outside the Court then it is a function of the Attorney-General to bring proceedings for contempt.

The convention that judges are not able to answer criticism publicly distinguishes the judiciary from other arms of government and explains why the Attorney-General, as the senior Law Officer of the Crown, has constitutional responsibility for upholding the rule of law and answering any unwarranted criticism of the judiciary.

6.7Mr East also pointed out that protecting freedom of speech needs to be balanced with the independence of the judiciary so that:467

Often a public statement by the Attorney-General is all that will be necessary to remind the news media that unfounded attacks on the judiciary can undermine the stability of our Constitution which it is in all our interests to protect.

6.8This approach is reflected in the Cabinet Manual, which currently states that the Attorney-General:468

… has an important role in defending the judiciary by answering improper and unfair public criticism, and discouraging ministerial colleagues from criticising judges and their decisions.

6.9As Mr East’s statements and the Cabinet Manual recognise, a public statement by the Attorney-General answering an unwarranted criticism of the judiciary may be sufficient to produce a retraction or apology, thereby avoiding any need for proceedings for contempt.

6.10Another alternative to contempt proceedings may be a formal written request by the Solicitor-General, as the junior Law Officer of the Crown, for a withdrawal of the unwarranted criticism and an apology to the particular judge involved. This alternative proved particularly effective in 1984 when the Solicitor-General on his own initiative wrote to the National Secretary of the New Zealand Police Association seeking and obtaining an apology for remarks attributed to him by the Sunday News, which included a statement impugning the impartiality of a Judge.

6.11In another example, in 2003, a website listed 14 judges and claimed to be investigating them. The website accused them of “corruption, incompetence and suspect character” and stated that evidence would be progressively published on the website to prove it. After the Solicitor-General sent a letter, the offending material was removed from the website.469
6.12Responsibility for upholding the rule of law, including defending the independence, integrity and impartiality of the judiciary, does not rest solely with the Law Officers of the Crown. Under the Lawyers and Conveyancers Act 2006 all lawyers and the New Zealand Law Society (NZLS) are obliged to uphold the rule of law.470 Similar responsibilities are reflected in the Rules of the Auckland District Law Society Incorporated and the New Zealand Bar Association.

6.13The NZLS will, in appropriate cases, make public statements answering attacks on members of the judiciary. Recent examples have included:

6.14An example from the independent bar is found in the response by Robert Lithgow QC and retired Judge Dr David Harvey, among others, to criticism of the discharge without conviction of a young sports player guilty of assault.475
6.15When the criticism of a judge is made by a lawyer, the NZLS may also invoke disciplinary procedures. In a recent case the New Zealand Lawyers and Conveyancers Disciplinary Tribunal found allegations by a lawyer of racism and corruption against two High Court Judges to be “baseless”,476 “without cause” and supported by “not one shred of evidence”,477 and imposed a sentence of 15 months’ suspension of practice, together with costs of over $250,000.478 The Tribunal’s decision, delivered some seven years after the allegations were first made, led to belated apologies by the lawyer concerned to both of the Judges.
6.16The result in that case was perhaps not surprising as the lawyer had made the allegations in complaints against the Judges to the independent Judicial Conduct Commissioner who had investigated and rejected them prior to the Tribunal’s decision.479 It is reasonable to assume, if there had been any truth in the allegations, steps would have been taken to remove the Judges from office long before the Tribunal’s decision in 2016. Instead the Judges remained in office with the unfounded allegations hanging over them. A more efficient and effective method for dealing with allegations of this nature is needed.
6.17Under the Constitution Act 1986 and the Senior Courts Act 2016 High Court Judges may not be removed from office except by the Sovereign or Governor-General acting upon an address of the House of Representatives.480 That address “may be moved only on the grounds of that Judge’s misbehaviour or of that Judge’s incapacity to discharge the functions of that Judge’s office.”481
6.18Judges of the Senior Courts therefore have security of tenure until they reach the age of 70, when they must retire.482 District Court Judges must also retire at the age of 70, and may be removed from office by the Governor-General on the advice of the Attorney-General on the grounds of “inability or misbehaviour”.483
6.19Members of the public who are concerned about the conduct of a judge may complain to the Judicial Conduct Commissioner under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, which was enacted to “enhance public confidence in, and to protect the impartiality and integrity of, the judicial system”.484 As the High Court recognised in Muir v Judicial Conduct Commissioner, the Act confirmed New Zealand’s commitment to the United Nations’ Basic Principles on the Independence of the Judiciary.485
6.20Under the Act the Judicial Conduct Commissioner has statutory responsibility for examining complaints in private and, in appropriate cases, recommending the appointment of a Judicial Conduct Panel to investigate allegations of judicial misconduct.486 The Panel then has statutory responsibility for investigating, hearing in public and reporting on complaints.487 Subject to a right of appeal to the Court of Appeal,488 an adverse report by the Panel against a judge may lead to action by the Attorney-General489 and, ultimately, the House of Representatives may remove the Judge from office under section 23 of the Constitution Act 1986. Decisions of the Judicial Conduct Commissioner are also open to challenge by judicial review.490

6.21While the Law Officers of the Crown and the NZLS have responsibility for defending the independence, integrity and impartiality of the judiciary by answering unwarranted criticism of judges and while there is a formal statutory regime in place for dealing with complaints by members of the public against judges, the question is whether there is any need to retain in any form the common law contempt of scandalising the court.

6.22The Solicitor-General has not brought a case alleging scandalising the court since 2004 when Dr Nick Smith MP, was found by a Full Court of the High Court to have been guilty of this contempt when making statements designed to lessen public acceptance of a Family Court custody decision.491

6.23The absence of any cases since Smith does not mean, however, there have been no abusive allegations or false accusations against the judiciary over the last 13 years that have tended to undermine public confidence in the independence, integrity and impartiality of the judiciary. Recent examples include:

6.24None of the criticisms or allegations in the above examples was true. All of the targeted judges remained in office. Yet in none of these cases did the Law Officers of the Crown or the Police take any steps to answer or respond to the allegations.495 The reasons for taking no steps include uncertainty over the scope and effectiveness of the law in this area and concerns about drawing further attention to the allegations.
6.25The lawyer who made the unfounded allegations of racism and corruption faced professional disciplinary proceedings, but due to numerous interlocutory applications and other delays the proceedings took some seven years to be heard and determined.496

6.26There is, therefore, a serious question whether the law of scandalising the court is currently workable in practice. If the law is to be retained, there are further questions as to the nature and gravity of the conduct covered by the offence, and where the line should be drawn between freedom of expression and conduct interfering with the administration of justice. If the law is retained, what is its appropriate form?

458Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA) at 231; Gallagher v Durack [1983] 152 CLR 238 (HCA) at 243.
459Above at [1.34].
460Murray Gleeson “Public Confidence in the Judiciary” (2002) ALJ 558 at 560; James Plunkett “The role of the Attorney-General in defending the judiciary” (2010) 19(3) JJA 160 at 162.
461Solicitor-General v Radio Avon Ltd, above n 458, at 229.
462 Re Swaptronics Ltd [1998] All ER (D) 407 (Ch) at [20] when deciding there was no need for an additional power to prohibit a party who is obdurately in contempt, by reason of his contempt, from enforcing his civil rights or from defending himself against civil claims made against him.
463Re Wiseman [1969] NZLR 55 (CA) at 58.
464Solicitor-General v Radio Avon Ltd, above n 458, at 230.
465R v Kopyto (1987) 62 OR (2d) 449 (ONCA); 47 DLR (4th) 213 (ONCA) at [85] per Dubin and Brooke JA. See also Ursula Cheer Burrows and Cheer: Media Law in New Zealand (7th ed, LexisNexis, Wellington, 2015) at 561.
466The Honourable Paul East Attorney-General “The Role of the Attorney-General” in Philip A Joseph (ed) Essays on the Constitution (Brooker’s, Wellington, 1995) 184 at 200; John McGrath QC “Principles for Sharing Law Officer Power: The Role of the New Zealand Solicitor-General” (1998) 18 NZULR 197 at 213. The position may not be the same in Australia: See James Plunkett, above n 460.
467At 201.
468Cabinet Office Cabinet Manual 2008 at [4.8].
469This incident is discussed in Cheer, above n 465, at 558.
470Lawyers and Conveyancers Act 2006, ss 4(a) and 65(b).
471New Zealand Law Society “Criticism of Judge unfair” (27 August 2015) <www.lawsociety.org.nz>.
472New Zealand Law Society “Sentence criticism ill-informed” (15 September 2016) <www.lawsociety.org.nz>.
473New Zealand Law Society “Discussion of judgments should be in appropriate forums, says Law Society” (8 November 2013) <www.lawsociety.og.nz>.
474New Zealand Law Society “Law Society provides guidance on sentencing considerations” (6 October 2016) <www.lawsociety.org.nz>.
475Stuff “Leading defence lawyers defend Losi Filipo’s discharge without conviction” (29 September 2016) <www.stuff.co.nz>; Vaimoana Tapaleao and Lynley Bilby “Losi Filipo case: How the judges judge” The New Zealand Herald (online ed, Auckland, 29 September 2016) <www.nzherald.co.nz>.
476National Standards Committee No 1 v Deliu [2016] NZLCDT 26 [Judges charges] at [215].
477At [185].
478National Standards Committee No 1 v Deliu [2016] NZLCDT 41 [Penalty decision]. This penalty decision reflected nine charges proved against Mr Deliu across three decisions: National Standards Committee No 1 v Deliu [2016] NZLCDT 25 [Interruption of meeting charge], National Standards Committee No 1 v Deliu [2016] NZLCDT 26 [Judges charges], and National Standards Committee No 1 v Deliu [2016] NZLCDT 27 [Incompetence charges]. Of these nine charges, six related to the allegations of racism made by Mr Deliu. Mr Deliu has filed an appeal: “Auckland barrister suspended” LawTalk 904 (New Zealand, March 2017) at 41.
479Complaints were made about one judge in 2008 and 2009 and about the other judge in 2010, all of which were dismissed: National Standards Committee No 1 v Deliu [2016] NZLCDT 26 [Judges charges] at [10], [184] and [209].
480Constitution Act 1986, s 23; Senior Courts Act 2016, s 134.
481Constitution Act 1986, s 23.
482Senior Courts Act 2016, s 133.
483District Court Act 2016, ss 28-29.
484Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 4; Wilson v Attorney-General [2011] 1 NZLR 399 (HC) at [25]–[52].
485Muir v Judicial Conduct Commissioner [2013] NZHC 989 at [41].
486Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, ss 15 and 18.
487Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 24.
488Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 31.
489Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, ss 32 and 33.
490Wilson v Attorney-General, above n 484, at [50]; Siemer v Judicial Conduct Commissioner [2013] NZHC 1655 and [2014] NZHC 2878; Muir v Judicial Conduct Commissioner, above n 485.
491Solicitor-General v Smith [2004] 2 NZLR 540 at [86]–[94]. Discussed above at [2.41]–[2.43].
492See [6.11] above. More recently, a New Zealand businessman used a website to advance his case and allege bias and corruption by a judge. The Court of Appeal rebuked his allegations in Siemer v Ferrier Hodgson [2007] NZCA 581, [2008] 3 NZLR 22 at [31]. See also Cheer, above n 465, at 558.
493Derek Chang “Fathers’ vendetta angers top judge” The New Zealand Herald (online ed, New Zealand, 9 May 2006).
494National Standards Committee No 1 v Deliu [Judges charges], above n 478. See [6.15]–[6.16] above.
495Principal Family Court Judge Peter Boshier defended the Family Court in respect of the 2006 picket at the homes of judges. He said that the picketing went beyond acceptable democratic protest and “[i]t has all the hallmarks of personal vendetta by individuals who do not respect the legitimacy of the court.”; see Derek Chang “Fathers’ vendetta angers top judge” The New Zealand Herald (online ed, New Zealand, 9 May 2006).
496National Standards Committee No 1 v Deliu [Incompetence charges], above n 478, at [29]. The Tribunal said “the primary contributing reasons for delay were the multiple challenges to the process taken by the practitioner and their, some-times slow progression, and his opposition to the Committee’s application to access evidence from the Court files”. A range of interlocutory and judicial review proceedings, as well as appeals, were filed in relation to both preliminary and substantive decisions. The Court of Appeal in one decision recorded that his objective was to prevent the Tribunal ever hearing the disciplinary charges: Deliu v New Zealand Law Society [2015] NZCA 12, [2016] NZAR 1062 at [19] and [32]. See also National Standards Committee No 1 v Deliu [Penalty decision], above n 478.