David Fisher

David Fisher is a senior reporter for the NZ Herald.

Judging the judges: Scrutinising judicial conduct

Sir David Gascoigne has told parliament more than one Judicial Conduct Commissioner may be required in the future. Photo / Mark Mitchell
Sir David Gascoigne has told parliament more than one Judicial Conduct Commissioner may be required in the future. Photo / Mark Mitchell

Who sits in judgment on the judges?

Meet Sir David Gascoigne, Judicial Conduct Commissioner. He is the arbiter of judicial conduct - but only conduct.

It is a distinction not recognised by many who seek his help. The number of complaints has risen rapidly in recent years - up from 101 in 2008 to 328 last year.

"People complain to me when they don't like something which happens to them in the courts. A huge proportion of them are complaining about it because they believe the judge got it wrong," he said. "There's the appeal structure which is supposed to deal with the substance of decisions. I'm there for things which are not based on decisions but which arise from judicial conduct.

"When you look at it closely, and I do, you find what they are really upset about is the result."

Instead, Sir David - who has a commercial private and public sector background - refers to the Code of Judicial Conduct. The set of standards, on the Courts of NZ website, describes the ethical standard expected of judges. It deals with behaviour in the courtroom, conflicts of interest and even has a section on alcohol abuse.

The distinction is not always clear, he said. "Take judges being rude - rudeness could be a sign of prejudice which could be grounds for judicial review. On the other hand it is also a matter of conduct and I can deal with it."

So many complaints came in the door last year Sir David felt compelled to tell Parliament more than one Judicial Conduct Commissioner may be required in future.

Perspective is key, he said. An estimated 255 judges working 230 days a year with five decisions a day would make 293,250 decisions a year - a rough estimate but an idea of the number of times a year in which judgment is exercised. Against this, his annual report last year showed six complaints referred to the heads of bench. Each complaint is handled separately and could involve the same judge and the same incident.

Many complainants speak of "corrupt" judges. "Quite a few people are using that word corrupt these days." He said by burrowing into the allegation usually it translates into: "The judge doesn't take my point of view and the only possible explanation is that the judge is corrupt." He has yet to find a genuinely corrupt judge. Most cases in which action is taken involve a judge who "failed to show proper courtesy, has been impatient or rude".

"A lot of the complaints I get are from people who complain a lot. If I were to judge things solely on the complaints I get, I would have a morally jaundiced view of life. In fact, I think the courts are well set up and highly disciplined in the way they go about things. And that includes their conduct."

Sir David usually sets out on an investigation writing to judges to seek their version of events, rather than phoning. "It's not a bad idea to have a certain distance between me and them." The judge's version might then be sent to the complainant if it leads to new issues to be considered.

He said some judges were complained about more often. "There are one or two judges who, let us say, have a robust approach to life and the way they work than a more measured judge." Some judges - "very few" - were also less willing to indulge an investigation. In the course of an investigation, Sir David will tell the head of bench a complaint has been made. He then is able to access the recording of the court hearing or the transcript, if needed. Occasionally he will need to search the court file.

Sir David said the complaint sometimes reflected the tensions of the courtroom and the complainant's comparative lack of knowledge of the process. In cases in which people were not represented by lawyers, or were unfamiliar with the court process, "the judge has to try and impose a sense of balance".

"In doing that, the judge is actually saying to the aggrieved person 'you should calm down, you're not supposed to behave like that'. That, according to the aggrieved person, shows bias, unfairness, predetermination, rudeness.

"Often when I listen to the tape and what I'm hearing is a judge trying hard to be patient with someone who is not. I often come to the conclusion the judge has had a reasonably hard time and tried hard," said Sir David.

It's a bit hard, he said, to criticise judges for the occasional lapse.

"Sometimes judges make jokes and people say, 'how dare judges behave like this'. But it is their daily job. It may be their method of working. Even so, judges may sometimes just forget, just a little, that the people appearing in front of them are under stress. Judges may forget, at the end of a working day, the nature of human frailty. Sometimes they can be a little forgetful of that.

"Most judges, nearly all the time, try really hard to be fair."

Sir David said he had interpreted the law governing his position as one which did not allow the publication of decisions. Decisions are sent to the complainants, who have the right to make them public.

The exception to the rule was the case of Bill Wilson, the former Supreme Court judge who resigned after Sir David had recommended the convening of a Judicial Conduct Panel to consider complaints about the judge's inadequately declared financial relationship with a lawyer appearing before him. Former Justice Wilson resigned and is working again as a lawyer.

Sir David said he found "a necessary loophole" to make public information about the case. It was necessary, he said, because of the confusion and inaccurate information before the public. "Too much secrecy is a bad thing and too much openness has its own perils because then you have no privacy."

- NZ Herald

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