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Home / New Zealand

'Unique inquiry': Hearing to determine if judge's conduct can be investigated

Tom Dillane
By Tom Dillane
Reporter/Deputy Head of News·NZ Herald·
1 Apr, 2022 05:18 AM4 mins to read

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A hearing on April 5 will determine if a Judicial Conduct Panel had the jurisdiction to investigate the Judge.

A hearing on April 5 will determine if a Judicial Conduct Panel had the jurisdiction to investigate the Judge.

A preliminary hearing has been set to determine if a "unique" inquiry into a judge's alleged misconduct can go ahead.

A statement from the Ministry of Justice this afternoon confirmed a hearing on April 5 would determine if a Judicial Conduct Panel had the jurisdiction to investigate the judge.

Attorney-General David Parker appointed the panel to launch an inquiry into the judge's conduct on August 30, 2021.

Retired Auckland University law professor Bill Hodge said such a possible inquiry into a judge's conduct was unprecedented as far as he was aware in the history of the New Zealand justice system.

"In terms of this alleged misconduct on the bench, I just don't have a good precedent," Hodge said.

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"It's kind of off the wall, unique. I would say generally it just doesn't happen in New Zealand.

"I would begin by saying New Zealand has been extremely lucky, or maybe it's more than luck, in having very superior judges with a judicial demeanour - which means they're patient and they don't give vent to their emotions."

The judge, whose name has not been released, "protests the jurisdiction of the panel" to proceed with the inquiry on the basis of its "mootness", and that there is "no public utility" to it.

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Today's release from the Ministry of Justice states the "sole issue" before the April 5 preliminary hearing is whether it has jurisdiction to inquire into the conduct of a judge who no longer holds office.

"In many areas there's no doubt that a person who had exited that profession would defeat any jurisdiction because it's about his or her fitness to continue in the public real presenting that profession. So there's a certain end to the need for the inquiry," Hodge said.

"It depends on whether you're looking back and trying to remedy injuries or trying to look forward and try to protect the public. Should there be a review for some of the consequences of that person's behaviour?

"For example, if an engineer certifies a whole lot of buildings, then maybe we better go back and recertify every one of those buildings."

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The former Auckland University law professor said such preliminary hearings for disciplinary inquiries were not uncommon across a range of professions.

"I mean there's a whole lot of professional bodies: architects, real estate salesman, dentists, nurses, lawyers, we all have a professional body to look over our conduct. Is it conduct unbecoming? Does it bring the profession into disrepute?" Hodge said.

"It's a preliminary inquiry in the same way we have a pre-trial committal type situation. Teachers have the exact same thing. If there's a serious complaint about a teacher, they have a body that looks at it saying should this go to the full disciplinary tribunal."

Accordingly, the release from the Ministry of Justice today clarified that the substance of the actual complaints against the judge will not be under scrutiny in the April 5 preliminary hearing.

"The hearing will not be concerned with the substance of the conduct complained of and there should not be any need to refer to the allegations, which did not involve the judge's conduct in their capacity as a judge but rather concerned the judge's conduct in their personal capacity," the ministry's statement said.

Despite this only being the preliminary hearing, Hodge said the only similar example of a judge's conduct being investigated in New Zealand was Justice Bill Wilson, who resigned from the Supreme Court in 2010.

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A former judge of the Court of Appeal and the Supreme Court, Wilson had been the subject of three separate complaints alleging inadequate disclosure of a business relationship with his friend Alan Galbraith QC - with the suggestion of bias.

The complaints alleged Wilson did not disclose the extent to which he could be seen as beholden to Galbraith while he sat as a member of the Court of Appeal.

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