A Moral Victory: The Supreme Court Rescues Our Judiciary From Itself

By   /   November 25, 2017  /   29 Comments

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THE SUPREME COURT has finally declared the deal struck between the Department of Labour and Pike River boss, Peter Whittall, “unlawful”. A moral victory for Sonja Rockhouse and Anna Osborne, certainly, but hardly a victory for the New Zealand justice system.

THE SUPREME COURT has finally declared the deal struck between the Department of Labour and Pike River boss, Peter Whittall, “unlawful”. A moral victory for Sonja Rockhouse and Anna Osborne, certainly, but hardly a victory for the New Zealand justice system. Though the Supreme Court came through for the plaintiffs in the end, the High Court and, more worrying still, the Court of Appeal, had both earlier rejected their legal team’s arguments. Had these two women not been as tough as the Pike River rock, their gruelling legal journey all the way to the Supreme Court might never have been completed. It would still be legally acceptable for delinquent chief executives to buy their way out of a conviction. Significantly, too much time has passed for Mr Whittall to be hauled back into court.

What is wrong with our justice system that the judgements of its lower courts have so often been overturned and criticised by the Law Lords of the UK Privy Council and, more latterly, the judges of our own Supreme Court? Why, for example, did it require a determined journalist, an Aussie jurist and a bloody-minded prime minister to give Arthur Alan Thomas justice? Why was New Zealand’s Court of Appeal so manifestly unequal to that task? And why was Peter Ellis unable to rely upon that same Court of Appeal to clear his name? In other jurisdictions, all the victims of the moral panics induced by false “Satanic Abuse” accusations had their convictions overturned in their countries’ courts of appeal. Not here.

It’s almost as if the New Zealand courts are afraid of acknowledging the occasional mistakes that all highly complex human institutions are bound to make. That once the State, or the Courts, have determined a person to be guilty, and an institution innocent, then that judgement must be upheld at any cost. Those exercising authority over their fellow citizens have been robed, like the Pope, in the vestments of infallibility. Thus protected, their judgements are only very rarely overturned.

Those filling the high seats of our justice system are not only reluctant to overturn the decisions of their colleagues in the lower courts, but they seem equally reluctant to hold accountable their peers in public administration and corporate management. And woe betide any members of the judiciary who so forget themselves that they condemn wrong-doing in high places in memorable and evocative language. When Judge Peter Mahon called the testimony of Air New Zealand to the Erebus Inquiry “an orchestrated litany of lies”, the national airline appealed to his brother judges to have the offending words struck out. They happily obliged!

This ingrained reluctance to hold New Zealand’s most powerful citizens and institutions to account, renders our justice system contemptible in the eyes of those who look to the judiciary for protection against the growing power of the state and its agencies. As if this failure wasn’t serious enough, the judiciary’s all-too-obvious reverence for the wielders of power in New Zealand society has, over many decades, seeped down into the minds of the broader population, contaminating the pool of potential jurors.

The near impossibility of securing a conviction in even the most egregious cases of police officers breaking the law is, in part, a reflection of the judiciary’s failure to educate the public in the supreme importance of making sure that those entrusted with the enforcement of the law understand how absolutely they are professionally and personally bound to uphold it. It is not difficult to understand why, earlier this week, after learning of the acquittal of two Police officers charged with kidnapping a 17-year-old youth, Dr Dean Knight, a senior law lecturer at Wellington’s Victoria University, tweeted: “I worry the rule of law took a hit today.”

It’s as well the Supreme Court chose the same week to reaffirm the principle that, in a nation of laws, it must remain utterly unacceptable for persons charged with offences to avoid conviction by simply handing over a great deal of money. Until the members of this country’s highest court intervened, the Labour Department’s refusal to present evidence against Peter Whittall had provided the critics of our judicial system with a seemingly irrefutable example of the way in which the powerful are able to close ranks against people like Sonja Rockhouse and Anna Osborne – making a mockery of their expectation that all citizens will be treated equally before the law.

Had they not, then the words of the Ancient Scythian philosopher, Anacharsis, would have been borne out in their entirety:

“These decrees of yours are no different from spiders’ webs. They’ll restrain anyone weak and insignificant who gets caught in them, but they’ll be torn to shreds by people with power and wealth.”

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29 Comments

  1. Gerald says:

    The judgement as been declared unlawful, does this mean that the lower court took part in an unlawful act? If so what is their punishment? Also the minister of justice in the government of the time was also negligent in their duty.

  2. OnceWasTim says:

    “This ingrained reluctance to hold New Zealand’s most powerful citizens and institutions to account, renders our justice system contemptible in the eyes of those who look to the judiciary for protection against the growing power of the state and its agencies”

    Well said Chris!
    I’m not sure which is worse. Is it the Judiciary’s reluctance to challenge the status quo, or is it the powerful citizens (senior members of our public service for example) and institutions who’re prepared to make some really stupid decisions in the first place.
    That Master of the Universe, self-entitled, holier than thou, ‘us who will not be challenged’ attitude that affects the plebs among us that has become well and truly ingrained with many of them.
    District Health Board CEOs and Chairman; Worksafe spin merchants trying to suggest they’re under a completely new organisational culture and minimising responsibility; a toxic and politicised senior management workplace culture that’s developed in everything from welfare agencies, to housing, health/ACC, transport agencies, MPI.
    Thankfully, I see signs that it is now all being challenged (e.g. proposals for some sort of review commission for historical court decisions, the break-up of MPI, and the likelihood of a bloody big rocket being put under the arses of a few others)

  3. cleangreen says:

    Look after their own firstly eh????

    Courts are now corrupt as well.

  4. Anacharsis was a pretty clued up bloke, it seems. His comment shows that human are the same the world over, from time immemorial…

  5. Sam Sam says:

    They might catch you by surprise if you let them slide. But if you feel for justice then you can build for this then you might survive. Now every one wants to see us sit still. Hear me jungle village. We got it. And if you don’t believe then rewind muh part fool.

  6. WILD KATIPO says:

    This whole Pike River affair has been a disgusting chronology of covering up , deferrals and deflections. It has been a monumental saga underscoring just what has ( and still is in many examples ) been the very state of our legal system.

    Composed of those who did their time at the same university’s, under the same lecturers, often sharing the same social networks and then covered and shown the ropes by the Old Boys fraternity’s when employed ,… is it any wonder : ”Those filling the high seats of our justice system are not only reluctant to overturn the decisions of their colleagues in the lower courts, but they seem equally reluctant to hold accountable their peers in public administration and corporate management ” …

    And this is what it always has been about : fraternity’s.

    There was another case whereby a courageous woman steadfastly challenged Police ‘ fraternity’ and our legal system and yet won out , – however NOT in a timely fashion. She had to go through hell and high water to see justice done with the result of two Police officers being convicted for rape.

    New Zealand legal history is chock full of examples such as this , – and Pike River has been yet one more , – aided and abetted by a corrupt Prime Minister that lied to the Pike River family’s , and utilized govt departments with swift footwork to prevent any justice ever being done.

    Remember it was not that long ago that the National govt were using a govt dept as a front to seal that mine up forever with concrete and deny the Pike River family’s closure , – and they as well as the NZ public justice.

    THAT is the value they place on justice, human life , – and as importantly – NZ workers lives. Zero.

    These two women , Anna Osbourne and Sonya Rockhouse, – in fact , – Bernie Monk and the rest … should go down in history as both the stalwart , dogged seekers of personal closure , justice and perseverance of the ‘ little person’ against the might of the state and the Old Boys inhouse fraternity , – as well as being the sort of tough minded ordinary citizens that ensure fairness and the preservation of a fair legal system for all of us.

    It is disgusting that they even had to go to these sorts of lengths in this country to obtain justice , – and yet because of their pain , we all benefit.

    And instead of being maligned and treated as legal pariahs that challenged the comfy cloistered corridors of power ( and won ! ), – the least we could do would be to award them some sort of civic honour as compensation for what has been a long , shameful ( on NZ’s legal / corporate systems part ) and personally painful journey to see justice done.

    We owe a lot to these people.

    • Richard Christie says:

      I think you ought to acknowledge that these battlers also had the assistance and support of many within the legal profession for their struggle, and that those people also attended the same universities and schools etc that you disparage.

      Bain, Haig, Ellis, Thomas, Gwaze, Pora etc have all had the support of dedicated legal teams, sometimes providing vast amounts pro bono work.

      The problem with the judicial appeal system isn’t so much the players (although it certainly has a hall of shame, imo Crown Prosecutor Brent Stanaway is a particularly egregious member) but it is that the appeal system is designed to protect its own authority and its procedures more than ensure just outcomes. It also erroneously assumes that any admission of failure undermines confidence in it rather than reinforces confidence that it can correct mistakes.

      Parallel to the Court and appeal system is the role of the Ministry of Justice and the advice that it provides ministers and the Executive. Here, failures over the past thirsty years have bordered on the corrupt, from setting up dodgy enquiries such as Eichelbaum’s Ministerial inquiry into the Ellis case ( http://www.peterellis.org.nz/docs/2007/new_evidence.pdf ) to the now routine practise of seeking advice from legal toadies such as Robert Fisher QC (Haig case and review of Binnie findings in the Bain case and Kristy McDonald QC (Scot Watson case).

      • WILD KATIPO says:

        … ” I think you ought to acknowledge that these battlers also had the assistance and support of many within the legal profession for their struggle ” …

        Yes indeed they did , however , it only takes a few bad apples to let the rot set in. Democracy and fairness is too valuable to not weed out the bad eggs. We expect – demand – better.

        Especially when human life is involved.

        And , like Erebus , Pike River was appalling.

        And particularly so when covered up and stonewalled by a govt.

        That’s an absolute disgrace.

  7. XRAY says:

    That appalling decision to allow Whittall to buy his way out of trouble should have shocked us but by then and nearly 5 years into the Key/English government of rich men, somehow it was merely par for the course.

    Of course, no individual in National pushed the button, so to speak, but in a government so infamous for subtle but insistent micromanaging interference in the way public institutions ran, it had their grubby little prints all over it. Worksafe’s seeming uselessness at doing something to hold someone to account seemed too damned convenient.

    I guess they saw it as payback for the man they considered risked everything to bring employment to a struggling part of the country. But with horrendous consequences.

    It also spawned farcical workplace safety legislation that left out farming and other favoured industry.

    That decision not to prosecute was the final kick in the guts of the families who needlessly lost their own through totally reckless, postively Victorian era governance, whilst National looked after their own.

    A disgrace for all time.

  8. Marc says:

    The courts are ok, they do not always get it right, of course, but generally, I recommend people take issues straight to the courts, rather than bother with our so called ‘watchdogs’, which are a laughing stock, in many ways.

    For instance the Ombudsmen, ‘fairness for all’ is their catch call, but that is like selling a commodity (service) with a nice slogan, saying nothing substantive and reliable about what is being delivered.

    Add the HDC, one health and disability services ‘watchdog’, and you have to know the law, they can throw out many complaints under wide provisions of ‘discretion’, taking no action at all, and they use it generously.

    They seem to rather protect the agencies they are in the public’s view supposed to scrutinise, and the complainants often wonder, what the hell led to their complaints being considered not worthy any investigation, or not succeeding for other reasons.

    They have access to top legal advisors, and use the law to their advantage, and very often the government agencies that are complained about, get away with what they do. Only in some truly scandalous cases do they take real action.

    https://nzsocialjusticeblog2013.wordpress.com/2017/11/21/how-the-new-zealand-ombudsman-effectively-provides-cover-for-the-hdc-an-information-request-complaint-case/
    (published 21 Nov. 2017)

    https://nzsocialjusticeblog2013.wordpress.com/2016/09/05/the-new-zealand-ombudsman-underfunded-and-compromised-the-auditor-general-sees-no-need-for-action/

    https://nzsocialjusticeblog2013.wordpress.com/2016/07/24/the-new-zealand-ombudsman-fairness-for-all-an-empty-slogan-for-some/

    https://nzsocialjusticeblog2013.wordpress.com/2015/10/04/how-the-n-z-health-and-disability-commissioner-let-off-a-biased-designated-doctor/

    So, if you have a real issue, with government departments or agencies, with health and disability services providers, with privacy concerns, try and take it to the courts, and do not waste your time with our limp and wet bus-ticket slapping ‘watchdogs’ without teeth.

  9. Marc says:

    Also, read about the repeated restrictions and cut backs on legal aid, people are denied access to justice in a big way now, the Nats did only make it worse over their last terms in office:

    https://www.radionz.co.nz/news/national/312868/six-of-eight-legal-aid-offices-to-shut

    http://www.stuff.co.nz/national/crime/10285613/Legal-aid-funding-limits-creating-justice-gap

    https://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-868/legal-aid-and-access-to-justice

    Those who have bothered keeping up with developments are NOT surprised one bit, Mr Trotter.

    Try take WINZ to court, or any other department or Ministry, they have access to Crown Law legal experts, paid high fees by US, the taxpayers, and they work overtime, and for great money, to get government off challenges, and to deny justice to the ordinary folk.

    As for the rest, I presume, that like with some other ‘professionals’ operating in NZ, local bred and trained, and some imported ones, not all are that professional at all, they get away with too much.

    Some things happening here would never happen in some countries in Europe, I am sure of this. Also the people in other places would never put up with so much BS as that goes on here.

  10. Marc says:

    If NZ activists would have any guts, they would do this:
    https://www.youtube.com/watch?v=CuNHsoJVjTE

    https://www.youtube.com/watch?v=7sRjonStJv0

    https://www.youtube.com/watch?v=pJcmexbR9Qg

    As they rather shit themselves, they tow the line of government and the powers that be, useless, in summary, totally useless.

    • Marc says:

      Sorry, of course except burning cars and the likes, which is not that smart and constructive! I prefer more peaceful protests, after all.

  11. A lawyer says:

    A jury acquitted those two police officers of kidnapping.

    Also, it was the Privy Council, not a New Zealand court, that said Justice Mahon had overreached himself in the Erebus inquiry. The Privy Council found Justice Mahon breached natural justice by failing to allow Air NZ to comment on various allegations of conspiracy before he made findings about them. It did not, however, have jurisdiction to disturb Justice Mahon’s factual findings about Air NZ’s conduct.

    Finally, a government department, not a court, made the decision not to prosecute Peter Whittall. The courts reviewed that decision in a process known as judicial review. Judicial review is concerned more with the manner in which a decision is made, rather than the merits of a decision itself.

    So, I don’t necessarily agree your criticisms are fair.

    To the person who suggested judges in the lower courts should be “punished” – who should make the decision on their punishment? Other judges, who would face the same criticisms, or MPs and the public? Would the latter course of action not incline judges to make decisions based on political expediency or public pressure rather than the rule of law?

    • Richard Christie says:

      Judicial review is concerned more with the manner in which a decision is made, rather than the merits of a decision itself.

      And therein resides the problem. Review is concerned with the health of the processes and its own reputation.

      Not to be concerned with the merits of the decision is, in essence, appalling.

      • Sam Sam says:

        Industry regulating themselves is very problematic.

      • Marc says:

        That is what a ‘review’ is about, hence we need more appeal rights, to challenge other decisions. Some laws are appalling, they deny the right of appeals. E. g. the Social Security Act 1964 allows no further appeals after a so called Medical Appeals Board (appointed by a MSD coordinator!) makes a decision about cases with medical and disability related aspects.

        There is no further appeal possible to any court or Tribunal, after that decision. This needs to change!

  12. Kim dandy says:

    …and the Pike River saga continues… such a long wait for the families to get closure. Shame on all those along the way that have prevented this.
    Thanks Frank – through as always.

  13. Kim dandy says:

    Sorry, I meant Chris – reading Frank’s blog in same sitting!

  14. Christine says:

    Just because a jury acquitted those two police officers of kidnapping doesn’t necessarily mean that they were innocent of kidnapping. Further, if, as it may have appeared to some, cultural practices superseded the rule of law, then an unfortunate precedent may have been created.

    • Richard Christie says:

      Just because a jury acquitted those two police officers of kidnapping doesn’t necessarily mean that they were innocent of kidnapping.

      It means that the status of their guilt or innocence of the charges is exactly the same as yours is.

  15. Frank says:

    As with all systems imagined by humans the effectiveness is determined by the balance….and here an we see the need to balance the competing interests of the individuals and society as a whole.

    A more pertinent point I suggest is the accessibility (read affordability) or rather the lack of…increasingly access to the recourse of the law irrespective of the quality of the decisions is denied the majority of the population.

    This is what more accurately reflects Anacarsis’ observation

    [Note: this poster is not Frank Macskasy, who posts under his full name. – Scarletmod]

  16. Cassie says:

    NOT a “moral VICTORY” Chris, actually.
    NZ Judiciary are corrupt but in this case it was more about being stuck between a rock and a hard place..
    Too many public eyes on them, so, yeah well they realised..

  17. Liberty4NZ says:

    It’s been seven years since the Pike River Mine disaster. Wouldn’t that mean the ability to charge Whittall within the statute of limitations has only recently expired? How very f**cking convenient.