New Zealand Law Society - Chief District Court Judge issues reminder about judicial independence

Chief District Court Judge issues reminder about judicial independence

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The Chief District Court Judge has issued a reminder about the importance of judicial independence in the court room.

Judge Jan-Marie Doogue says she is concerned that in the larger registries of the District Court, there are circumstances where counsel have approached the registrar and have had conversations with registrars about whether or not a particular judge should hear a case.

“This is entirely inappropriate. In one very recent example, a very experienced lawyer fronted at a registry and simply indicated that he would not appear before a particular judge, and that this would put the trial at risk. The suggestion was made that another judge should preside,” she says.

She says counsel must not attempt to interfere with the allocation of cases to judges.

“The law is very clear that should counsel be suggesting that a judge recuse himself or herself, that is a matter that must be resolved by way of formal written application to the said judge. The judge is then required to hear from all parties to the proceeding and give a formal decision citing reasons for their decision to recuse or not to recuse themselves,” she says.

Judge Doogue explained that the aforementioned situations with some counsel are occurring in situations where the judge may have expressed an opinion in an earlier case and that is not necessarily a ground for recusal.

“The mere fact a judge earlier in the same case, or in the previous case, has commented adversely on a party or a witness or has found the evidence of a party or a witness to be unreliable, would not be found to be a sustainable objection to that judge presiding,” she says.

Judge Doogue refers to the Court of Appeal case R v Cullen [1992] NZLR 577, which says.

“It is inevitable that defendants will appear more than once before the same judge, and the fact that something discreditable to the defendant happens on one occasion does not make it inappropriate for the same judge to deal with another matter in the future. Judges are well able to put such things out of their minds, just as juries are expected to do from time to time with proper direction”.

She says the issue of recusal does not arise merely because a judge has ruled against a defendant on a pre-trial matter, even if the decision made was erroneous and adverse to the party now alleging bias.

“A judge is only disqualified if he or she has expressed views in the course of a hearing, in such extreme and unbalanced terms, as to throw doubt on his or her ability to try the issue with an objective judicial mind. The threshold for recusal is high in these types of circumstances,” she says.

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