Her career has been rocket-like: first woman QC with friend Lowell Goddard at 39; High Court judge – again with Goddard – at 46; sworn in as Chief Justice (on 17 May ) at the unheard-of age of 50, making her the second most powerful person in the country to the Governor-General. Then, in New Zealand’s June Queen’s Birthday Honours, she was created Dame – the highest civil honour in the land… Lay people acknowledge her as a brilliant lawyer who speaks their language, understands their problems – and does it all with a smile… Justice Goddard says: “For her it’s a fairness thing. Although Sian has a generous spirit she is very firm in the application of principle…”
At the beginning of her Chief Justice career, Ms Sian Elias said1History-making NZ Chief Justice values trans-Tasman links, Carroll du Chateau, (1999) 73 Law Institute Journal 31.:
It’s important for the public to be comfortable in the courts, but you can’t become too engaged – it may compromise the judicial function, which is why judges don’t socialise with people they may have to deal with in court.
Five years later, the Law Commission reported that its investigations disclose widespread dissatisfaction with the court system. It remarked on a “message of alienation and discomfort” which is felt by big business as well as by “ordinary New Zealanders”2Public Confidence and Judicial Function: The New Zealand Experience, 2004.. We do not know how Ms Elias understands the “judicial function”, but clearly she hasn’t been “too engaged” with the public needs indeed.
The below open letter provides, in our opinion, a fair summary of Ms Elias’s prolonged service in the office of the Chief Justice of New Zealand. The letter was delivered to the Supreme Court on 20-Jun-2016. No response from Ms Elias was ever received. The image of the original letter can be found here.
|20 June 2016||[Redacted]
(I do not include my physical address out of fear of retaliation)
Ms Sian Seerpoohi Elias
Judge of the Supreme Court of New Zealand
By email: firstname.lastname@example.org
Dear Ms Elias,
In 1999, you were sworn in as Chief Justice of New Zealand. In 2002, the Privy Council found in Taito v R that the nation’s highest court “operated arbitrarily. Certainly, it was contrary to fundamental conceptions of fairness and justice.” In 2004, the Law Commission report disclosed “widespread dissatisfaction with the court system” on the part of ordinary New Zealanders as well as big business*1. Ten years later, the official statistics on judicial conduct complaints demonstrate that an average New Zealand judge and an average judge of the Supreme Court of New Zealand are complained about 9 and 121 (!) times more often, respectively, than an average judge of a comparable overseas jurisdiction*2. These are the results of your 17-year reign in the office.
Earlier this year, through your Chief Advisor Kieron McCarron, you have brushed under the carpet complaints about falsification of a party’s appearance by the Supreme Court and about unlawful assignments in the Court of Appeal. When your attention was drawn to your improper conduct in relation to the complaints, and to the glaring professional incompetence of Mr McCarron, you had “no additional response to make”3Refer to the complaint to the Chief Justice of 11-Jan-16 and the follow-up correspondence..
You regularly deliver judgments amounting to fraud upon the court. For instance, in  NZSC 374CRESER v CRESER  NZSC 37, §5., you made a statement to the effect that the only fact put forward by the applicant in support of his allegations of bias was “the fact that the Court rejected [the applicant]’s application”. It was a material omission on your part, made maliciously or recklessly, and calculated to mislead the public as to the substance of the application that you adjudicated. In truth, the applicant had advanced other facts5APPLICATION FOR LEAVE TO APPEAL SC139/2015 of 18-Dec-15, §§4-8. in support of his allegations, all of which you fraudulently omitted.
As the United Nations noted in Commentary On the Bangalore Principles of Judicial Conduct, “A judge should always […] act honourably and in a manner befitting the judicial office; be free from fraud, deceit and falsehood […] There are no degrees of integrity as so defined. Integrity is absolute. In the judiciary, integrity is more than a virtue; it is a necessity”. This cannot be said of you. Neither do you appear competent as the Chief Justice of New Zealand. Your continued sitting in the Supreme Court brings the judicial system into disrepute and casts grave doubts on all judgments you take part in. Your covering up of judicial misconduct in the capacity of the Chief Justice amounts to abuse of public trust.
For the sake of the nation, retire immediately. It is abundantly clear now that no good will result to the New Zealand people from your prolonged service.
Please note that I intend to have this open letter published. Should you wish to provide a formal response by 1 July 2016, it will be published as well, along with my reply. A lack of response on your part will be construed as you having nothing to say in your defence.
*1 Public Confidence and Judicial Function: The New Zealand Experience, Sian Elias, 2004.
*2 Please refer to my letter of 21 May 2015, a copy of which was emailed to you through a court officer.
Update (18-Oct-2016): On 14 October 2016, The Times wrote under the headline “Disaster from Down Under”6Disaster from Down Under, Leading article, The Times, 14-Oct-2016.:
Abusive. Racist. Appalling. Intolerable. Catastrophic. The adjectives allegedly used by insiders to describe Dame Lowell Goddard speak volumes of the frustration that she engendered among colleagues.
The adjectives also speak volumes about the referee, Chief Justice Sian Elias, who recommended her chum Lowell Goddard for the job7Officials knew about judge’s erratic conduct, Sean O’Neill | Andrew Norfolk, The Times, 14-Oct-2016.. Show us your friends, we’ll tell you who you are.
References [ + ]
|1.||↑||History-making NZ Chief Justice values trans-Tasman links, Carroll du Chateau, (1999) 73 Law Institute Journal 31.|
|2.||↑||Public Confidence and Judicial Function: The New Zealand Experience, 2004.|
|3.||↑||Refer to the complaint to the Chief Justice of 11-Jan-16 and the follow-up correspondence.|
|4.||↑||CRESER v CRESER  NZSC 37, §5.|
|5.||↑||APPLICATION FOR LEAVE TO APPEAL SC139/2015 of 18-Dec-15, §§4-8.|
|6.||↑||Disaster from Down Under, Leading article, The Times, 14-Oct-2016.|
|7.||↑||Officials knew about judge’s erratic conduct, Sean O’Neill | Andrew Norfolk, The Times, 14-Oct-2016.|