New Zealand Law Society - Fall in number of complaints to Judicial Conduct Commissioner

Fall in number of complaints to Judicial Conduct Commissioner

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The Judicial Conduct Commissioner received 223 complaints about individual judges in the year to 31 July 2018, down from 314 in the previous year.

The Report of the Judicial Conduct Commissioner for the year to 31 July 2018 says the number of actual complaints was 154, down from 177 in the previous year. During the year examination of 190 complaints was completed (330 the previous year), with 8 referred to the Head of Bench (2 the previous year).

Complaints received by Court, year to 31 July

Court 2018 2017 2016
Supreme 54 158 221
Appeal 10 18 5
High 45 35 32
District 76 57 49
Family  31 40 43
Youth 1 0 0
Environment 0 0 1
Employment 1 0 1
Māori Land 3 1 0
Court Martial 0 0 0
Coroners 2 5 3
Total 223 314 355

The report says that the 54 complaints shown as having been made about Supreme Court judges came from 9 individuals. The 10 complaints about Court of Appeal judges came from 3 individuals. "It also remains apparent that some complaints about Supreme Court judges are driven by that being the final appellate court." 

Outcome of complaints, year to 31 July

Court 2018 2017 2016
Received 223 314 355
Unfinalised from previous year 48 64 98
Total 271 378 453
No further action taken 29 56 42
Dismissed 147 269 336
Referred to Head of Bench 8 2 6
Judicial Conduct Panel established 0 0 0
Withdrawn 6 3 5
Total finalised 190 330 389
Total not finalised 81 48 64
Total 271 378 453

The nature of complaints

The report says delay, discourtesy, incapacity, incompetence and bias (with a related failure to consider recusal) have all continued to feature along with allegations of criminal behaviour including corruption and conspiracy. It does not provide a break-down of the number of complaints in each of these categories.

"It is probably unsurprising that significant numbers of complainants invite the Commissioner to challenge the legality or correctness of decisions made by Judges," it says. "That, as section 8(2) [of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004] makes plain, is not a function of the Commissioner."

The report says the Commissioner has been aware of a spotlight on what is described as bullying behaviour by Judges towards lawyers.

"Complaints of this nature received by the Commissioner are few and far between but by no means unheard of. On occasions (though not in the current year) there has been sufficient concern to justify referrals to Heads of Bench. In doing so the expectation has been expressed that the particular Judge, or Judges generally, be reminded of their obligations in terms of public confidence in the judicial system. Guidelines for Judicial Conduct should leave little room for doubt about what is, or is not, appropriate behaviour. As former lawyers themselves, all Judges should have etched in their minds, as though second nature, their obligation to treat lawyers with respect and courtesy."

Referrals to Heads of Bench

There were 8 formal referrals in the 2017/18, with 7 made under section 17 of the Act and one under section 8B(3). Of these, two were to the Chief Judge of the High Court, four to the Chief District Court Judge, one to the Chief Judge of the Māori Land Court and one to the Chief Coroner.

The report says one of the referrals to the Chief High Court Judge did not arise from any finding of wrong-doing. "Rather, it was designed to ensure the adequacy of various guidelines or protocols relating to disclosure by Judges of matters which might lead to apprehension of bias and the need for consideration of recusal."

The other referral to the Chief High Court Judge related to an issue of delay.

Three of the complaints referred to the Chief District Court Judge related to just one Judge. They arose from what the Judge accepted was an error of judgement in not articulating sufficiently the views he would usually express concerning violence of any sort, particularly domestic violence. The remaining referral to the Chief District Court Judge was made under section 8B(3) after the Commissioner and Deputy Commissioner decided they had a conflict of interest in relation to the complaint.

"The referral to the Chief Judge of the Māori Land Court related to the need for meticulous attention to matters which might justify disclosure," the report says.

"The referral to the Chief Coroner was designed to ensure a full and clear understanding between the Coroner and the Chief Coroner to avoid any possible concern over public confidence in the judicial system."

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