New Zealand’s “dark secrets”

Sometimes when I listen to a foreign leader praise our efforts in the environment or our willingness to assist those in war-ravaged countries, I hope that our dark secrets – for they remain hidden to the rest of the world – will never become known internationally… [W]e have one of the finest, least corrupt Police Forces and Court systems in the world…

[T]he [Court of Appeal of New Zealand] system operated arbitrarily. Certainly, it was contrary to fundamental conceptions of fairness and justice… [A]ppeals were dismissed pursuant to a fundamentally flawed and unlawful system…

The Judicial Committee of the Privy Council in Taito v R [2002] UKPC 15

Mission statement

Our purpose is to expose the institutional corruption and fraud that permeates the New Zealand justice system. The honest opinions we express are based on the numerous documents we published on this website for the benefit of the public. We strongly encourage readers to peruse the documents and come to their own conclusions.

Most of the published documents relate to the litigation between some Mr N and Ms M. However, the underlying dispute between the two is irrelevant to our purposes. We are not concerned who of the parties is right. Instead, we offer the public a rare opportunity to scrutinise the actions of New Zealand judges, in accordance with the principle of open justice and the United Nations anti-corruption guidelines1Resource Guide on Strengthening Judicial Integrity and Capacity, V.11-85709—December 2011, the United Nations Office on Drugs and Crime.:

Enabling public access to court-related information is associated with numerous benefits for the integrity and efficiency of the justice system. Publication of judgments allows the public, the press, civil society organizations, lawyers, judges and legal scholars to scrutinize the actions of judges… For example, requiring a statement of facts and an analysis explaining the application of the law ensures that judges cannot hide decisions that are contrary to law.

Background: New Zealand’s “dark secrets”

“Fundamentally flawed and unlawful system”

The Supreme Court of New Zealand was hastily put in place in 2004 “to end appeals to the Judicial Committee of the Privy Council from decisions of New Zealand courts”2The Supreme Court Act 2003, s 3(1)(c)., following a number of unprecedentedly scathing and embarrassing to the New Zealand state judgments from London, for instance:

2002  Taito v R3[2002] UKPC 15, §§14, 18, 20-22. Approximately 1,500 (!) appeals were “similarly placed”: R v Smith [2002] NZCA 335, §3.: [T]he Privy Council cannot adopt the extra-legal approach advocated by the Solicitor-General [of New Zealand]… [G]iven the unlawful role by three judges of the Court of Appeal, the review procedure was from inception irredeemably flawed… [T]he system operated arbitrarily. Certainly, it was contrary to fundamental conceptions of fairness and justice… [A]ppeals were dismissed pursuant to a fundamentally flawed and unlawful system

2002  Dymocks v Todd4[2002] UKPC 50, §65.: Since the [New Zealand] courts below have left out of account factual matters of great importance, their Lordships feel entitled to reverse their decision…

2003  Jones v A-G5[2003] UKPC 48, §11.: [T]he Court of Appeal [of New Zealand]… gave less than proper weight to the conflict of evidence between the appellant and the constable, treating as uncontradicted evidence which was in truth very strongly contradicted, and attributing to the appellant an admission which he did not make.

2005  Howse v R6[2005] UKPC 31, §69.: It is impossible to imagine a clearer example of a trial that has gone off the rails… [T]here were many other aspects… which were far from satisfactory. We forbear to dwell on them… [That] was already, when judged by the standards of the law of New Zealand, an unfair trial. We could use more robust language to describe it but, with difficulty, restrain ourselves from doing so.

Unscrupulous judges

The judges of the Court of Appeal, who operated the latter “contrary to fundamental conceptions of fairness and justice”, made their way to the new Supreme Court. As of February 2015, two out of five judges of the court were former Solicitor-Generals, of whom one (John McGrath) in 1989-2000 supervised prosecutions in the “fundamentally flawed and unlawful system”, while another (Terence Arnold) in 2002 advocated the “extra-legal approach” in Taito v R before the Privy Council. John McGrath retired on 6-Mar-2015, a week after falsifying (along with William Young and Susan Glazebrook) a party’s appearance in SC3/20157Refer to the complaint to the Chief Justice of 11-Jan-16.. Terence Arnold still sits.

In August 2012, the same John McGrath wrote submissions on behalf of the entire New Zealand judiciary, lobbying Parliament to not pass the Register of Pecuniary Interests of Judges Bill. Mr McGrath argued the Bill was unnecessary, stating no evidence exists of judicial corruption and, accordingly, “prevention of corruption provides no justification for the establishment of a register of judges’ pecuniary interests in New Zealand.” Mr McGrath went on to hypocritically claim that8Register of Pecuniary Interests of Judges Bill – Acting Chief Justice (on behalf of the Judiciary).:

[T]he judicial process is a high visibility process: hearings are conducted in public and judges must give reasons for their decisions, which will be subject to appeal. These features of the judicial process impose an important discipline on judges and provide an effective protection against arbitrary or biased decisions the “open and transparent court processes” provide adequate protection against judicial corruption.

In December 2014, Attorney-General Christopher Finlayson put forward the following amazing arguments against the Bill before Parliament, admitting that judicial conduct complaints are on the rise and claiming that the judiciary should be protected from “unwanted criticism”9Finlayson, Christopher: Register of Pecuniary Interests of Judges Bill – Second Reading, Hansard, v 702, p 1132.:

I strongly believe that if there were to be a register of pecuniary interests, it would act as a very, very chilling effect on the appointment of judges. I know how judges come under attack all the time. There are cases in the system at the moment where a person appears before a judge, they are dissatisfied with the result, they complain to the Judicial Conduct Authority, and they make the most dreadful allegations against the judges. When they do not get what they want from the Judicial Conduct Authority, they… seek a judicial review of that person. Judges are under attack more than ever, and it is incumbent on us to recognise the separate branch of government that is the judiciary and protect it from unwanted criticism.

The Register of Pecuniary Interests of Judges Bill did not pass, of course.

“Widespread dissatisfaction with the ‘finest’ court system”

In 2004, Chief Justice Sian Elias admitted “widespread dissatisfaction with the court system”10Public Confidence and Judicial Function: The New Zealand Experience, 2004.:

…questions about the legitimacy and scope of the judicial function, long raised by business groups and some academics in relation to the claimed “activism” of the New Zealand Court of Appeal, have spread more widely… The Deputy Prime Minister… described a risk to Parliamentary sovereignty through judicial activism… At the same time, the Law Commission has reported that its investigations disclose widespread dissatisfaction with the court system. It remarks on a “message of alienation and discomfort” which is felt by big business as well as by “ordinary New Zealanders”.

Just two years later, the “fundamentally flawed and unlawful system” magically became, as per Governor-General Silvia Cartwright, one of the world’s finest11Speech to State Farewell, 2006.:

Sometimes when I listen to a foreign leader praise our efforts in the environment or our willingness to assist those in war-ravaged countries, I hope that our dark secrets – for they remain hidden to the rest of the world – will never become known internationally. I am concerned that these countries that so admire us might soon learn that we have a terrible rate of family and other violence, that although we have one of the finest, least corrupt Police Forces and Court systems in the world, this violence remains unacceptably high.

Government cover-up and official statistics

Keen to keep its “dark secrets” hidden, the state goes to great lengths to cultivate the misconceived perception of worldwide superiority of the New Zealand judiciary. For example, the New Zealand government has provided 85-93% of the operational funding of the local chapter of Transparency International since its inception12Stan Cutzach’s Governance of Transparency International Hits New Zealand, Kiwis First, 12-Jan-2016., which apparently allowed Minister of Justice Judith Collins to claim in 201313SNZ tops global ranking for transparency, again, Judith Collins, 3-Dec-2013.:

New Zealand had been ranked the least corrupt country in the world for the eighth year running [as per] Transparency International’s Corruption Perception index … “One of New Zealand’s biggest assets internationally is its reputation for being corruption free,” Ms Collins says14It appears that Ms Collins cited herself.. “People who live, do business and invest in New Zealand know that they can trust our laws and our government to protect their rights and freedoms. This reflects the integrity of our system and the people who work in it.” Ms Collins says this latest ranking is a huge economic asset and will continue to open doors for New Zealand business around the world, making it easier for them to attract valuable foreign investment and skilled workers.

The claims similar to the above are continued to be made despite the truly abysmal statistics on judicial conduct complaints, which shows that in 2014/2015 an average judge of the Supreme Court of New Zealand was complained about 29 times more often than an average New Zealand judge, and 210 times more often than an average judge of New South Wales, Australia. The numbers represent a twofold increase from the previous year15Refer to Statistics on judicial conduct complaints..

Good and bad lawyers

Any criticism of the New Zealand judiciary on the part of lawyers is not tolerated. For example, in December 2013, Dr Tony Molloy QC was censored for his critical comments about judges, published in a national newspaper16New Zealanders shafted by fraudulent justice system, says top QC, R Vaughan, NBR, 29-Aug-2012.. Remarkably, the article was titled “New Zealanders shafted by fraudulent justice system, says top QC”. The submissions made in Dr Molloy’s case suggested that17Notice of Determination by the National Standards Committee (NSC) No. 6446.:

[T]he issue in the recent evolution of New Zealand law… is not whether or not the criticism is justified, but instead that lawyers should not be making the criticism per se… [T]he concern of the standards committees [of the New Zealand Law Society] seems to be to suppress dissent amongst the legal profession and especially in a public fashion… In other words, lawyers ought not be seen criticizing Judges or else it is per se an ethical breach.

In October 2013, human rights lawyer Evgeny Orlov was struck from the roll of barristers and solicitors for his complaints about Rhys Harrison, the same judge who subsequently unlawfully assigned himself to Mr N’s appeal18Refer to the complaint to the JCC of 10-Apr-15.. The fact that Mr Orlov was “lynched” is apparent on the face of the dissenting view of an honest and brave lay member of the Tribunal that delivered the decision, inter alia19National Standards Committee v Orlov [2013] NZLCDT 45, §§163-173.:

There is no doubt that several ‘altercations’ occurred between Mr Orlov and [Harrison J]… These altercations provide for me sufficient and proper cause by which to understand the Orlov complaints, for them not to be considered ‘false’ or ‘without foundation’ as set out in the charges…. To me, in the plain sense of the wording, the Orlov complaints had foundation. There are no examples of Mr Orlov making scandalous allegations without foundation or being intemperate in his interactions within the Court.

On the other hand, there is widespread corruption in the legal profession, to which the government turns a blind eye. For instance, in her damning report on the Legal Aid system20Transforming the Legal Aid System, Nov-2009, ISBN 978-0-478-29080-2., Dame Margaret Bazley said the justice system had been undermined by a number of corrupt lawyers who were rorting taxpayer-funded legal aid:

There is a small but significant group of lawyers (and some defendants) who are abusing the system to the detriment of clients, the legal aid system, the courts, and the taxpayer… The behaviour I have been told about in the course of this review is simply appalling and I am surprised that the legal profession has allowed the situation to go on as long as it has.

Asked how many corrupt lawyers she believed there were, Dame Margaret said “as high as 200 or even more”, with all courts affected but Manukau District Court being the worst with up to 80 per cent of lawyers “gaming the system”. “The longer I talked to people, the more I found,” Dame Margaret said. “I think I could have gone on forever….” While she was not able to verify a lot of what she was told, this was part of the problem as “everyone knows what is going on but no one complains”21Corrupt lawyers swindling system – Bazley report, Patrick Gower, New Zealand Herald, 28-Nov-2009.. Astonishingly, Dame Margaret went on to say that criminal action should not be taken against corrupt lawyers as it would be “fought every step of the way”22‘Corrupt lawyers’ claim undermines profession, New Zealand Herald, 4-Dec-2009.. It comes as no surprise that she was immediately attacked by the lawyers whom she criticised23Govt must prove rorts, say lawyers, New Zealand Herald, 4-Dec-2009., while the government didn’t bother to investigate her claims.

The bottom line

The perceived “robustness of the rule of law in New Zealand”24Impressive New Zealand rule of law ranking saluted, New Zealand Law Society, 5-Jul-2011. is seen by the New Zealand government as a “huge economic asset” that helps to lure into the country unsuspecting investors and migrants. Anything which threatens to taint that idyllic image is suppressed and oppressed by the government at all costs. Of course, the judiciary (including the Chief Justice) have also their own corrupt corporate interest in whitewashing judicial fraud: after all, their own well-being is at stake.

Disclaimer

Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to the documents. If you have any concerns in this respect, please raise them with us immediately. The onus remains on any person using material in the documents to ensure that the intended use of that material does not breach any such order or provision. Nothing on this website should be construed as legal advice.

References   [ + ]

1. Resource Guide on Strengthening Judicial Integrity and Capacity, V.11-85709—December 2011, the United Nations Office on Drugs and Crime.
2. The Supreme Court Act 2003, s 3(1)(c).
3. [2002] UKPC 15, §§14, 18, 20-22. Approximately 1,500 (!) appeals were “similarly placed”: R v Smith [2002] NZCA 335, §3.
4. [2002] UKPC 50, §65.
5. [2003] UKPC 48, §11.
6. [2005] UKPC 31, §69.
7. Refer to the complaint to the Chief Justice of 11-Jan-16.
8. Register of Pecuniary Interests of Judges Bill – Acting Chief Justice (on behalf of the Judiciary).
9. Finlayson, Christopher: Register of Pecuniary Interests of Judges Bill – Second Reading, Hansard, v 702, p 1132.
10. Public Confidence and Judicial Function: The New Zealand Experience, 2004.
11. Speech to State Farewell, 2006.
12. Stan Cutzach’s Governance of Transparency International Hits New Zealand, Kiwis First, 12-Jan-2016.
13. SNZ tops global ranking for transparency, again, Judith Collins, 3-Dec-2013.
14. It appears that Ms Collins cited herself.
15. Refer to Statistics on judicial conduct complaints.
16. New Zealanders shafted by fraudulent justice system, says top QC, R Vaughan, NBR, 29-Aug-2012.
17. Notice of Determination by the National Standards Committee (NSC) No. 6446.
18. Refer to the complaint to the JCC of 10-Apr-15.
19. National Standards Committee v Orlov [2013] NZLCDT 45, §§163-173.
20. Transforming the Legal Aid System, Nov-2009, ISBN 978-0-478-29080-2.
21. Corrupt lawyers swindling system – Bazley report, Patrick Gower, New Zealand Herald, 28-Nov-2009.
22. ‘Corrupt lawyers’ claim undermines profession, New Zealand Herald, 4-Dec-2009.
23. Govt must prove rorts, say lawyers, New Zealand Herald, 4-Dec-2009.
24. Impressive New Zealand rule of law ranking saluted, New Zealand Law Society, 5-Jul-2011.