In a rare interview, two of the country's top judges reveal how they do their job - and what they think of public criticism. David Fisher reports
When Judge Raoul Neave passed judgment on Guy Hallwright, he did so in a way which stopped the country in its tracks.
"What I know of your character ... I consider it highly unlikely you would have driven at him," said Judge Neave, sentencing the investment banker to 250 hours of community work and an 18-month driving ban on a charge of causing grievous bodily harm with reckless disregard.
As Judge Neave criticised the media's handling of the case, he told Hallwright to pay $20,000 to the man whose legs were broken as the banker's Saab drove over him. "Why no jail?" asked Sung Jin Kim later.
The same question was being screeched across talkback. Bloggers went wild. One letter writer fumed: "Enough is enough. Incompetent judges should be sacked without a sack full of money."
When the Herald asked Judge Neave for an interview, we didn't get one judge trying to explain himself.
We got the chief judges for the district court and the High Court. They didn't come to justify one decision. They came amid talk from their judicial colleagues over the position they hold in society.
What they said is interesting. Why they chose to say it is important to all of us.
According to the Sensible Sentencing Trust's Garth McVicar, judges cannot connect with the public because they are "like the royal family and untouchable". Distant, he says, and beyond understanding those who come into their courtrooms - or what those outside the courtroom want. "When you start to monitor judges like we do, you get a small number of judges who consistently get it wrong."
The system becomes increasingly flawed as the judiciary becomes softer on crime, he says. "There was no corrective mechanism put in place as far as correcting the judiciary. I think they have become more liberal as they have become more authoritarian in their own arena."
Ruth Money, also from the trust, says there are no other professions that are free of performance standards and not compelled to undertake mandatory training. "We want to help the judges deliver their role as state servants more efficiently." Money says concern about "lenient" sentences raises concerns about the competence of judges. "We're certainly not asking for them not to be independent. We're just asking for them to be managed and educated and certified so the public know we are safe."
The problem is entrenched, say the critics, because judges are appointed for life. They are not subject to outside scrutiny, beyond conduct and courtesy obligations overseen by the Judicial Conduct Commission.
Increasingly, calls for greater accountability come from all sides. Most recently, the State Services Commission reviewed the Ministry of Justice's performance structures and included the role of the judiciary in discussion about meeting performance standards. The Law Commission last year asked if the chief justice should be compelled to produce an annual report. "The judiciary must ... be individually and collectively accountable for the proper discharge of its functions," it stated.
The judiciary appears to also be considering greater engagement, and the means by which that might happen. Greater reporting is currently provided on case progress through courts. Justice Sir Grant Hammond of the Court of Appeal, in a 2010 paper highlighting criticism of the judiciary, said: "A branch of government could hardly be expected to be like the submarine service and 'Run Silent, Run Deep'. A 'branch of government' implies some obligation to speak."
His published comment, among others on the Courts of New Zealand website, shows a judiciary which is becoming more vocal. In recent years, speeches have moved from dissertations on esoteric points of law to the role of the judiciary and the environment in which it operates. Recurring themes could lead to the view that the judiciary operates in an environment in which it has become marginalised, misunderstood by all and a target for vicious verbal attacks from the public served by the law it administers.
Sir Grant in his 2010 paper, said there seemed to be an expectation "the bile comes with the territory and the judge must just swallow it".
Interviewing a judge is not like speaking with other mortals. The response from the judiciary comes first through its single media contact, Neil Billington, who arranges a meeting with Justice Helen Winkelmann. The meeting, at the High Court in Auckland, is to canvass areas of interest before an interview by email would take place.
It might sound precious but it seems more cautious. For an institution that spends time wondering if it should speak out at all, the hesitancy is a clear understanding of the repercussions of doing so without caution. When district court judge David Harvey spoke at a public gathering this year, a misplaced wisecrack led to him stepping down from the Kim Dotcom extradition case, costing the country's most tech-savvy jurist the chance to oversee the first stages of the world's biggest online copyright case.
In 1956, Lord Chancellor Sir David Fyfe, Lord Kilmuir, was asked if he would allow senior judges to be interviewed for a BBC show. He declined, saying: "So long as a judge keeps silent his reputation for wisdom and impartiality remains unassailable."
For Justice Winkelmann, the system is already open and responsive to criticism. "The requirements that judges work in public and that they provide reasons for their decisions provides the best means of accountability. Their decisions can be, and are, the subject of public comment and criticism. Their decisions can be reviewed or appealed. These are the primary means by which judges are held accountable for their decisions."
Judges, she says, "are not subject to personal direction; not from politicians, the Ministry or the public, and nor from other judges, such as the head of bench". It leaves "judges ... able to decide a case according to law, free from improper pressure or influence".
There is an understanding of tangible accountability; Justice Winkelmann describes work with the Ministry of Justice to collate statistics that can illustrate the ability of New Zealanders to access justice and do so in a reasonable time. Judges would report against those standards and efficiency "is a necessary part of the court being accountable to the public".
The ability to "deal with the business of the court as promptly as is consistent with justice" relies on "the adequacy and appropriateness of the resources made available to the courts. For these resources we are again dependent upon the Ministry of Justice".
The position of the judiciary within one of the other branches of government, rather than on its own, is a recurring theme in recent judicial speeches, suggesting it is an issue which rankles. The frustration is exacerbated by the casual attention shown to the boundaries and rules held dear by the judiciary. Last year Chief Justice Sian Elias spoke of the establishment in the 1990s of the Department of Courts, which had been welcomed at the time as "the way to greater judicial responsibility".
Then, she added, "only a few years later, in a decision in which the judiciary was not asked for its views, the Department of Courts was folded back into the Ministry (of) Justice".
Casual misunderstandings give hints of wider issues. Justice John Priestley has spoken of a Ministry of Justice official including judges in a general reference to "justice sector employees". Judges bridle at the suggestion - they are independent. The same response came after finding his conference name badge listing his attendance as from the "Ministry of Justice". "A judge is ... part of an arm of government, independent and performing a vital constitutional role," he said.
Parliament is funded through Parliamentary Services. Ministers get money through Ministerial Services. The judiciary, even though a separate branch of government, "have no independent means of supporting their operation", says Justice Winkelmann. "They require either funds allocated from Parliament (which is how some Australian courts function) or support provided by the executive."
The issue, as Chief Justice Elias explained it, was the assumption judicial independence was preserved simply by not telling judges what to decide. Wider consideration would bring more "principled attention" to the judiciary's place in society. Administration issues, discussion about criminal justice agencies being cloistered in "justice precincts", alternative resolutions of cases (such as increased use of cautions and diversion) - all were discussed "often without thought for the independence of the courts and their role as a distinct branch of government". The suggestions might be good ideas but surely, she said, there was a way to do it without treading on the judiciary's territory.
Justice Winkelmann warns against any public impulse to make judges' decisions more "consistent" against a set of predetermined guidelines.
"Predictability is achieved through the application of the law. It is not possible or appropriate to measure predictability beyond that.
"If judges do make mistakes these can be corrected on appeal. That is a safeguard against error."
Beyond the system itself, is access to the court system. "The Courts are open to the public and the media, and are regularly subject to criticism. In that sense, I don't see how they could become more open. Criticism of judicial performance must be expected as part of how our open society works.
"It can also be seen as a form of sanction that the judges are able to be criticised publicly. Most judges who experience that kind of criticism would feel it keenly."
For district court chief judge Jan-Marie Doogue, the relevance is particularly keen. Public anger is usually raised over decisions made by the 145 judges at district court level who handle about 160,000 new cases each year - more than 95 per cent of criminal cases heard in the country. The workload is highest in Auckland, where about 47,500 new cases pass through the courts. "Like all professionals, any criticism is taken seriously," she said by email. "It not only affects the judge concerned and their family but impacts on all of the judiciary. However, this is part of the judicial role, and judges understand that their comments can cause debate. They recognise that the public have every right to express their opinion."
For Attorney General Chris Finlayson, the opinion of the public is perfectly valid. But the increased opportunity to personally attack judges, and the increased commentary driven by social media, is one of the reasons the Law Commission is studying an update of contempt laws.
"I do get concerned where there are these highly personalised comments about judges. It is one thing to criticise a judgment which is entirely legitimate, and judges can't be too previous as academics or lay people want to come out and say they think a judgment is wrong. Personalising it for a particular judge is very difficult. What response does that person have?"
The position of the judiciary in New Zealand is not well understood, he says. "The judges are not civil servants. They are not responsible to the Ministry of Justice. They are their own branch of government and they need to be treated with the respect that goes with that."
Part of that is the ability to be vocal. "It is extremely important for judges to speak out on matters connected to judicial administration - cameras in court, legislation that affects the sorts of things that go to the heart of the operation of the judicial system. Where I get concerned is where judges get involved in matters of social policy or areas which are directly in the realm of the executive. They may inadvertently stumble into the political forum and find themselves exposed."
An example was the clash in 2009, shortly after the three-strikes-law coalition agreement between Act and National was hammered out. Chief Justice Sian Elias delivered a lecture in which she questioned whether harsher sentencing worked, offering evidence it possibly caused greater harm for society in later years. Prime Minister John Key said the speech strayed "over the line" while then-Justice Minister Simon Power said judiciary should "apply the law set by Parliament". He added: "This Government was elected on the sentencing policy."
However, the Herald has discovered the scrum was already screwed before Chief Justice Elias chose to speak out. Former Act leader Rodney Hide recalled how he and fellow Act MP David Garrett sat down with Key and Power to work out how the three-strikes policy would work.
Hide said the National politicians tried to introduce a benchmark of a three-year sentence to those qualifying for the "strike". It would have the effect of moderating a controversial law. "The point was made that the judges would shoot below (the three-year mark) and defeat Parliament's will."
Hide said a list of people was produced and shown to Key. It showed criminals who had been sentenced to fewer than three years on serious crimes and "were exactly the kind of people we wanted to be kept away".
"We were conscious that the judiciary had come out against longer sentences. Politicians had the sense that the judges were out of touch."
As the popular mood has shifted towards tougher sentences in the last decade, judges have pondered how to respond. The Court of Appeal's Justice Sir David Baragwanath said in a 2008 speech that "judges must speak and act with caution" as democracy gave politicians "a legitimacy which judges cannot claim". But increasingly judges seem to feel they must be part of the public debate - on this and other issues - if only to ensure their perspective is heard and understood beyond the courtroom.
Justice Winkelmann sums up, with an eye for balance: "Judging is not a science. Despite the many rules involved it is not work that can be done by a computer. Judging is a human role, as judgment is necessarily a human faculty. But because judges are also human they won't always get that right. That is why the appellate process is so important."
When judges speak out
October 2009: Justice John Priestley
On court fees, where it costs about $1100 to file a civil case at the High Court: "Compare this to the other two arms of government - Parliament and the ministerial executive. It would never seriously be suggested that a citizen would have to pay $100 to consult his or her Member of Parliament or $5000 for the privilege of travelling to Wellington to lobby a minister."
On the judiciary's role: "Modern European history is replete with examples where impassivity in the face of threats to unpopular sections of the community eased the road to tyranny."
March 2010: Justice Sir Grant Hammond
"The justification which seems to be advanced - if it is articulated at all - is that judges do not pronounce upon contested questions of public policy. But the fact of the matter is that judges do, in cases and outside them! For at least the last 50 years, and increasingly over the last decade or so, judges have been invited to give public lectures, write books, and put their views 'out there' ... They may make fools of themselves; their arguments may be shown to be completely fallacious; and unquestionably there will be occasions on which the Executive is downright irritated by what has occurred."
July 2010: Dame Sian Elias, Chief Justice
"In an age of talkback and populism there are risks to the rule of law if law is seen as remote, inaccessible, and incomprehensible."
March 2011: Sir Peter Blanchard, Supreme Court
On fast-tracking law reform through Parliament: "The point I would make, however, is that parliamentary time is precious and expensive. At the moment it can be said that it is being misspent and that parliamentarians could, if procedures are altered, find that their time is freed up for things which are more interesting to them."
September 2011: Dame Sian Elias, Chief Justice
"Sometimes the obligation to say what the law is brings the judiciary into collision with the executive. It is often overlooked that a principal virtue of the supervisory jurisdiction of the courts over executive action is to provide authoritative vindication for what has been done, stilling controversy. While from time to time some heat may be generated in decisions of the courts which displease the executive, this function is the constitutional responsibility of the courts under the rule of law."
September 2012: Justice Mark O'Regan, president of the Court of Appeal
On the cost of the justice system and efforts to reduce it through pre-charge warnings: "The pressure to increase efficiency is not going to slow down and the imperative of the right to a fair trial never diminishes. Our challenge is to meet the former without compromising the latter."