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Anthony Willy

The Thin Red Line

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In her recent collections of essays Dr Newman has drawn attention to the governments unprecedented attack, on what we had assumed to be our inalienable liberties. This with the support of the National Party opposition and on the assumption that this unique assaults on the citizens’ rights and liberties was conducted lawfully. Some readers might have thought there was an element of overreach in those warnings and that of course our liberties will be restored when the current “crisis” is over. Such optimism is misplaced. At a time when there is no evidence of any pandemic in New Zealand our “democratic socialist” government, in legislation enacted with indecent haste has launched an unprecedented assault on our civil liberties and personal freedoms, conferring power on faceless bureaucrats backed by the police, to invade our privacy without a warrant and effect arbitrary arrests for breaches not of the criminal law but a set of arbitrary rules dreamed up by the Director General of Health and his political masters. All of this on the premise that it was well intentioned and for our own good. Well the way to hell is paved with good intentions.  Pious bromides offer the citizen no protection from ever increasing incursions by the state into our rights and freedoms. Presumably, this affront to democracy is thought to be necessary because the cabal that is overseeing the “pandemic response” knows from the Solicitor General’s opinion that there was no basis known to law for this massive erosion of our rights. They know that the diktats of this small group in shutting down the economy and incarcerating the public were from the outset unenforceable by the police or any other government servant and unlawful. In the decisions In the two cases which  have come before the courts; they have lost one and attracted some adverse dicta from the President of the Court of Appeal in the other which no doubt sent a shiver down the collective spines of the “democratic socialists.” Erich Honecker would have been proud of them for not yielding to silly notions of democracy.

What this highlight is that when a government acts outside of the law during the term of a Parliament only the courts can hold them to account. Only they are the custodians of the Rule of Law. They are akin to Sir Colin Campbell’s “thin red line” which held off a superior force of Russian cavalry in the Crimean war and routed them. But this will only be possible if the Judges pay strict adherence Rule of Law and the common law on which it is based, setting aside personal beliefs and political or social fancies. To achieve this Olympian detachment a Judge must first return to his or her oath of office sworn on appointment: “I swear by Almighty God to do right by all manner of persons after the laws and usages of New Zealand without fear or favour affection or ill will.” The “laws and usages” are the common law.

In seeking to understand this vital institution it is helpful to know what the necessary ingredients of a good judge are, for not every lawyer is suited to the work. It requires an apprenticeship served in the courts arguing (and often loosing) cases on behalf of clients, developing a reputation for a sound knowledge of the law and practice, and unimpeachable ethical standards. Above all a rich dose of common sense. Other desirable characteristics are the ability to sift often irreconcilable facts, a practical knowledge of human nature in all its virtues and failings, patience, courtesy, and the ability to listen are also desirable qualities. That said, Judges are ordinary people possessed to a greater or lesser degree of the virtue’s, prejudices, and failings of most other members of society. It is only their solemn oath and attachment to the Rule of law which makes them fit for office. It is vitally important judges understand that their job is to ply their trade within its narrow constitutional remit. In that sense they are merely journeymen whose job is to make decisions by applying the law to the facts of a case. Nowhere among the job specifications is there the right to impose on the litigants his or her views on the myriad problems that beset society even if as one wise judge put it they think they have; kissed the hem of the old man in the cave.” In a democracy it is solely the province of the elected government of the day to seek to change society and for doing so they must answer at the ballot box.

Having decided on the qualities needed in a Judge the next question is how are candidates appointed to what is a highly privileged position in society; one in which they are the objects of endless bowing and scraping, the recipients of a generous income and pension, and most important by their decisions they will affect the lives of all who come before them. The time-honoured system was for the Attorney general to take what was ominously termed “soundings” among the judges and the practising court lawyers as to who might be considered a suitable candidate. The functioning of this process was shrouded in secrecy even for the initiate. It is said that late Sir Thaddaeus McCarthy sometime President of the Court of Appeal when asked by a colleague how he came to be appointed a Judge replied he had no idea “how” but the “where” was in the men’s urinal of the Wellington railway station. The system had the merit of sounding out the collective opinion of the candidate’s barrister contemporaries, the Judges before whom they appeared and who knew better than anybody whether the person was possessed of the necessary qualities and integrity to decide the fate of others. The system worked well but like it or not it came to be seen as a self-perpetuating Caucasian, largely private school educated “old boys club” and without question it produced few women or people from different ethnic backgrounds. On the other hand, it also produced some of the finest judges the common law world has known. It was they who forged the judge made law into the present foundation upon which our civilisation has come to rest. So secure was this foundation that politicians could see little harm in tinkering by bowing to sectional pressure and appointing to this select body persons who may or may not have the necessary qualities of a Judge but were more representative of the community. This was sold on the basis that to do their job properly judges need personal experience of a wide sweep of humanity something thought to be lacking in the old boy’s network. The result is that the previous system of appointment to the Benches is long dead. But there are some advantages in the present approach as is illustrated by the Attorney Generals’ recent appointment of 21 new District Courts Judges. Twelve are women, of whom seven have Maori or Pacific Island antecedents (one of mixed Chinese Maori blood). Of the men four claim Maori heritage. Something unheard of under the old Boys system but a mix which will suit District Courts where the work is overwhelming criminal cases and Family Court disputes. Unfortunately, these comprise a stubbornly high proportion of Maori defendants. There tends to be overlap between the two having its origins in the number of unwanted and unloved children who drift into crime and find it difficult to sustain family relationships. Judges with a better understanding of the root cause of Maori offending is what is needed, and if some of them are mothers with children who understand something of the beginnings  from which these offenders come, but who will not be taken in by some of the whining special pleading directed to seeking  soft sentences so much the better These Judges will of course apply the law and remain true to their oaths, but there is scope for a more compassionate approach to the process of dealing with offenders rather than focusing solely on the sentencing outcome. The initiative taken by the Attorney general in appointing this mix of judges is to be supported. How much better if the crime and the family cases can be dealt with by Judges who understand from the inside the lives these young, mostly men have lived and to take this into account. There is nothing new in this. One of my most valued memories of Judging in Dunedin is the book of James K Baxter poems presented to me at a farewell function for the great and good of Dunedin which rather unexpectedly also drew self-invited members of the Mongrel Mob. They arrived in their best gear made a shot speech of thanks for what they remembered of efforts made to deter them from crime, presented the book, rubbed noses, and respectfully left. The inscription in the book reads “best wishes for the future and our sincere appreciation” and is signed by two of their leaders. They also had a bit of Billy T James about them. In response to an earlier suggestion that they abandon the name Mongrel Mob as carrying too much baggage they readily agreed and adopted instead the impressive sobriquet “Ngati Kuri Mahi Trust.” Any self-satisfaction at my efforts evaporated later when I learned that this translates to “Mad Dog Trust. “

But what if this political ingredient in the selection of judges and the kaleidoscope of community representatives comes at the price of the integrity of the common law as it is administered in the higher courts which exist as the guardians of the Rule of Law. Sadly, there have been a number of recent high-profile cases which give rise to concerns at the way in which the common law is being administered in the higher courts both in New Zealand and overseas.

To take three examples:

Great Britain

Brexit one

Probably in my lifetime nothing has divided the British public more than the debate over whether or not Britain should leave the European Union (EU). It caused the downfall of two Conservative Prime Ministers and ended the careers of a number of senior Conservative cabinet members some of long standing. It hopelessly divided Parliament not along party lines as is usual but between “leavers” and “remainers”. Parliament was deadlocked for months and dealing with the usual business became all but impossible. This standoff was broken only when the Labour Party flushed with the prospect of success foolishly agreed to back an early general election. The result was the catastrophic demise of the Labour Party led by the avowed Leninist Jeremy Corbyn. Into this toxic mix one Gina Miller, an ardent “Remainer” brought two major cases against the Government testing the result of the public referendum to leave the EU: both succeeded. The first involved the question of whether or not the Executive had sole power to make and unmake treaties with foreign states and thereby leave the EU or was that something that only Parliament could do. The Supreme Court in a split decision overruled what was thought to be settled constitutional practice applied in numerous cases involving the making and unmaking of international treaties and decided that a decision to leave the EU was in a unique category and could only be made by an act of Parliament. The majority judgment was met by an uproar in the media and commentariat. Highly unusual allegations were made about the impartiality of the Judges in the majority decision, and only weakly and belatedly defended by the Attorney General. It being clear that the Judges would have known of course that the Conservative ruling party by this time did not have a  majority in the House which would enable such legislation to be passed; and that they must have known that the effect of their majority decision was to either ensure the dissolution of parliament or, contrary to the referendum vote Britain could not leave the European Union. But in fact, it was worse even than that. The provisions of the Fixed term of Parliament legislation forced on the Cameron government by the Liberals prevented any political party from calling a general election within the 5 year term of Parliament without first repealing that Act, something which the opposition would never agree to. In effect the Judges by a majority had overturned the result of the referendum in which millions voted to leave the EU.

Brexit two

This case also brought by the redoubtable m/s Miller, (who must have had very deep pockets or generous benefactors) was concerned with the question of the decision of the Monarch at the invitation of the Prime Minister to prorogue what had become a dysfunctional Parliament. The effect of which would be that Parliament lost two sitting days. This second attack on the results of the referendum came on for hearing in the High Court. The decision then went to appeal to a Divisional Court comprising three of the most experienced and eminent English Judges: The Lord Chief Justice, the Master of The Rolls ( the most senior Justice dealing with civil and constitutional matters) and the senior High Court Judge. The unanimous Judgment of this Court is a model. It confines itself to the facts as proven in the High Court, none of which related to the workings of the mind of the prime Minister. It examined the precedents relevant to the case and applied them to the facts. Classic common law jurisprudence devoid of any social or political agenda. The result of this old-fashioned application of the law was a unanimous decision holding that the exercise of the Queens’ prerogative cannot be challenged in the courts. M/s Miller and her backers lost. Undaunted they appealed to the Supreme Court flushed with the knowledge of their earlier victory.

In terms of the previous comments about the appointment of Judges and the current fashion of appointments being representative of the community the composition of the court which heard Miller No. 2 is interesting. It comprised two Scottish lawyers one of whom had never sat previous to his appointment to the Supreme Court, in an English Court, one from Northern Ireland, and two from Wales. None of these locations are known to be sympathetic to English laws and usages. Four whose practice of the law involved principally Family Court matters and teaching, and one who had published on keeping the law apace with social change. Among the rest was one who had made his living at the Bar from patent cases, one commercial lawyer and two who practiced in the Chancery courts dealing with estates, trusts and the like. Two of the judges had experience of European Union law which is of course utterly unsympathetic to Briton’s wish to leave the EU. None of the judges appeared to have any first-hand experience of the constitutional legal principles so exhaustively dealt with by the Divisional Court. Perhaps most striking of all is the provenance of Baroness Hales the then President of the Supreme Court for the second Brexit case. She had never practiced at the bar in any field of law. Her qualifications were as a teacher and academic. When appointed to the Bench she specialised in family law and social welfare. In particular there is nothing in her background which suggests any acquaintance with constitutional law and practice. More worrying were the disparaging comments she is reported as having made about Boris Johnson after the first Brexit decision. Remarks which were publicly exposed by the award-winning Times journalist Melanie Phillips. Herself the wife of a leading Queens Counsel.

Such was the composition of the Bench. The unanimous decision of the Court made short work of the scholarly judgment of the Divisional Court which decided that prorogation was not something over which the courts had any jurisdiction. The Supreme Court decided instead and contrary to the authorities cited in the earlier decision that such jurisdiction existed. The court then had to find some reason for judging whether the Crown privilege of prorogation was properly exercised. It found that in effect the Queen had been misled by the Prime Minister into granting a prorogation of Parliament for which the Prime Minister had no reasonable justification to seek. In other words, he was actuated by some ulterior motive. This despite the fact that there was no evidence about the state of mind of the Prime Minister or any proper inferences which might be drawn that he had deliberately set out to mislead the Monarch, who at that time of the prorogation dispute had reigned for 67 years. Her first Prime Minister was Winston Churchill and as a regular part of the functioning of a constitutional monarchy she has dealt with fifteen others. It is said that some she found congenial and some not (Harold Wilson was a favourite) She lived through; the second world war and its aftermath, the cold war, the loss of Empire, the Suez crisis, the desert war, not to mention various economic crises, international alarms and excursions and personal tragedies. She has met and charmed virtually every head of state during her time in office some think because of her knowledge and sympathetic understanding of their various political and social arrangements. She has dealt with a bewildering range of political and constitutional problems thrown up by the everyday business of a democracy. This lady has been since her coronation a working Monarch giving daily attention to her red boxes overflowing with sensitive political documents. One would therefore assume that she has some grasp of the constitutional law and practice attaching to the workings of the British Parliament and hardly likely to be hoodwinked by a Prime Minister who had been in office for a few weeks.

Unsurprisingly the Judgement of the Supreme Court in Brexit 2 not only provoked a further storm of condemnation but has raised questions at the highest level of Government about the experience required of candidates to sit as judges and in what way are they promoted up through the ranks to become appellate judges. It is not drawing too long a bow to anticipate that with a majority of 80 in the House of Commons and once Brexit and the virus scare is over serious attention will be given to what has gone so badly wrong with the existing system of appointment and promotion of judges in the United Kingdom. It is becoming clear that to appoint judges to the higher Courts on the basis of whether or not they are in some way representative of the community is deeply flawed. The nice mixtures of ethnicity, gender and geographical spread of candidates which comprises the United Kingdom Supreme did not serve well the integrity of the common law in the Brexit cases.

Australia and the rise of victimhood.

The problem of the criteria for the selection of judges has also become apparent in Australia in the prosecution of Cardinal George Pell. Cardinal Pell a senior and distinguished member of the Roman Catholic Church had been subjected to an unprecedent barrage of allegation and inuendo that during his time as a Bishop in Victoria he permitted widespread paedophilia among the priesthood  and in particular was guilty of the historic rape of two choir boys in the sacristy of his Melbourne seat. The police investigated the allegations at length and referred them to the Public Prosecutor. That office which acts a safeguard against frivolous prosecutions, declined to bring charges against the Cardinal. The police persisted and themselves brought the prosecutions. The Cardinal was arraigned for trial before a Victorian state jury although of course any semblance of a fair trial seemed impossible given the pre-trial publicity much of it fermented by the Australian Broadcasting Corporation and Fairfax media. Surprisingly however the Jury was unable to convict. The police persisted and at a second trial he was Inevitably found guilty on the uncorroborated word of the “victim.” The other boy said to have been abused had withdrawn his allegation before taking his life with an overdose of heroin. The Cardinal was convicted and sent to prison. The conviction was upheld by the Court of Appeal of Victoria.

Apart from the media hostility the prosecutions were brought against a fundamental social shift in the treatment of those who claim to have suffered historic criminal sexual abuse. The long established practice was that where such a complaint was made it is the duty of the police to investigate the circumstances and if satisfied that the complainants story is credible to refer the matter to a crown solicitor, or prosecuting authority such as the Director of Public Prosecutions to further review the facts presented by the police and if satisfied that there is a case to answer to initiate criminal proceedings against the accused. Throughout this process the accuser was referred to as a “complainant” whose account of events would at trial need to be proved beyond reasonable doubt against a defendant who was innocent until proven guilty. The subtle but crucial shift which occurred in the administration of the criminal process over the past few years was to elevate the accuser from one who complains to the status of a “victim” whose story was to be believed. Little thought appears to have been given to how this wish to treat such complainants with compassion squares with the presumption of innocence. The appalling consequences of this shift in social mores was played out in England in the infamous “Nick” saga in which the police believed without question or proof the incredible allegations of an individual with the privacy name of “Nick.” He presented as self-described “victim” of the grossest paedophilia involving the most prominent men in the land including among others; the former Prime Minister Edward Heath, the former Chief of Defence Staff Lord Bramwell (who won his spurs on the beaches of Normandy,) and Sir Leon Brittan Q.C. a former Conservative cabinet minister. All of these distinguished public servants were subjected to years of police harassment and a deluge of defamatory media reporting encourage by Tom Watson the then deputy leader of the English Labour Party. Following an independent enquiry, the allegations were found to be the fabrications of a fantasist, and “Nick” is now serving 18 years in prison for conspiring to defeat the course of justice. For the true victims however, life will never be the same again. Indeed, Sir Leon died before he knew that his reputation was publicly exonerated, and the distress caused to Lady Bramwell contributed to her death.

The Pell case was played out in Victoria against this background and attention falls on the Victorian Court of Appeal which heard the appeal. It is presided over by the Chief Justice and comprised two other judges one of who was an acknowledged expert in Criminal law. Of the other two the recently appointed Chief Justice’s legal background was as a member of a Melbourne legal firm of solicitors working mainly on civil law cases. The other member of the court had previously openly informed a Victorian Senate committee before whom he was making submissions that he knew nothing about the criminal law and on such matters deferred to a colleague who was making submissions to the same enquiry. It is not unusual for Judges to be called on to decide cases about which they had little or no experience in practice. They fill the knowledge gap by relying on the duty imposed on all counsel in arguing cases in a court to fully and fairly inform the court of the relevant legal principles. Cardinal Pell’s counsel was a Queens Counsel of vast experience and probably the foremost criminal lawyer in Australia. It is clear from the way in which he managed the case that the court received all the help it needed certainly in the fundamental principles to be applied in dealing with a jury verdict of guilty. It is assumed however that all judges hearing criminal cases will be familiar with three fundamental and simple propositions: the burden of proving that the defendant committed the crime charged rests on the prosecution throughout, is proof beyond reasonable doubt and the accused is innocent until proven guilty. As Lord Chief Justice Hewitt’s enunciated one hundred years ago: the presumption of innocence is the “golden thread” which runs through the criminal law. This is mothers milk imbibed by stage one law students.

The majority judges in the Pell case trawl in detail through the evidence and reminding themselves frequently by reference to past precedents establishing the three fundamentals. In this “self-educative judgment” (as Lord Cook deemed such efforts,) they were however unable to apply these simple but crucial tests to the accused. This is graphically illustrated by their treatment of the evidence of the other boy said to have been abused by the Cardinal. He denied to his mother that this had ever happened to him and withdrew his complaint. The Chief Justice applies her own brand of cod psychology to this evidence concluding that sexually abused children often later deny the event. There was no evidence of this, expert or otherwise and it simply amounts to the Justices reversing the onus of proof on a crucial point. In the result they applied their own test that: the jury was entitled to convict if they found the “victims” account of events was “not impossible.” The dissenting judgment excoriates this fundamental error. On further appeal to the High Court of Australia all seven Judges of the Court agreed with the dissenting judge and found the majority decision of the Court of Appeal woefully inadequate. The conviction was set aside, and the Cardinal freed from prison. Notwithstanding such a ringing acquittal factions in the Australian media led by The Australian Broadcasting Corporation journalists, who had so vociferously blackened the Cardinal’s character before trial continue with a campaign of inuendo against him playing up, not the fact of his acquittal which they say was on a technicality but of supposed civil proceedings for damages which are pending against him and the Roman Catholic Church. None have been issued.

One simple proposition underpins these sinister emerging trends and that is the notion of “victimhood” be it sexual, gender based, political or economic which requires that victims are always to be believed and if the common law gets in the way of that it must be disregarded. It is of crucial concern that Judges hearing such cases be appointed who possess sufficient knowledge of basic common law principles in protecting the liberty of the subject, that they apply the common law and reject these insidious encroachments.

New Zealand.

We are extraordinarily fortunate in the calibre of most of the judges who make up the New Zealand courts and no less so at the higher levels. By and large they have served the common law as required by their oaths of office and the recent decisions relating to the virus hysteria previously referred to are testament to this. That said there are worrying signs that the integrity of the common law in New Zealand is under threat. The law is so described as “common” because it comprises a single system of jurisprudence and is applied to all citizens regardless of social circumstances, race, or gender. It is a priceless bequest of our forefathers and underpins our social cohesion and prosperity. Hitherto there has been no separate set of legal principles applying to litigants of a different race or creed. For example, there are now large numbers of New Zealand citizens and more recent immigrants who in their home countries live by Sharia law principles. If they sue in a New Zealand Court the case will be decided by the New Zealand common law principles without reference to any other code unless for example a contract the parties are suing on provides that it shall be dealt with by the law of some other jurisdiction, and even the resolution of those disputes is part of the common law.

Until recently this was assumed to be beyond debate, but no longer. The former Chief Justice supported by the present incumbent have floated the notion that “Tikanga Maori” values are now part of the common law of New Zealand. Many of you will not have heard of Tikanga Maori. Apparently, it is an elastic concept with a wide range of meanings relating only to Maori and embraces lore, manner, culture, custom, ethic, etiquette, fashion, formality meaning, mechanism, method, protocol and style.” Confused as to what any of this has to do with the law?  It emerged into the daylight in relation to resource management questions facing local authorities and the increasing need to consult Maori groups when dealing with applications for consents. A weary public has acquiesced in these exercises solvable as they usually are by the payment of money or transfer of property. It has become a cost of doing business. The cases in which the Chief Justice of the day attempted to elevate this concept to a place in the common law involved; the ownership of the bed of The Waikato River, and a burial in which the part of the surviving family wanted interment according to Maori practice. The other part of the family did not. Difficult emotions and expectations but legally unexceptional, calling only for the finding of facts and the application of the law to the usual standard of proof leading to an outcome. There was no need for the Chief Justice to suggest in effect that the law is no longer “Common” to all but that there will be different legal criteria in cases which involve Maori litigants not available to non-Maori litigants. In the case of the Waikato River the application was dismissed as having no legal foundation but not before the Chief Justice uttered encouraging obiter remarks about the place of Tikanga Maori in the common law. These remarks have borne fruit. They have been endorsed by the present incumbent who has said openly that Tikanga Maori is part of the common law of New Zealand and presumably we await a case where this can be decided. But there are pitfalls for the culturally aware judge which may be found uncongenial. The late Mr. Justice Williamson at a loss in sentencing a Maori offender in The Dunedin High Court in the early 1990s for a particularly nasty series of rapes called for assistance from a group of senior kuia as to what might be considered fitting punishment in the offender’s Iwi. The Judge was dismayed to receive the Kuia’s suggestions which involved as a preliminary measure detaching sensitive parts of the offender’s body, accompanied by a sound beating and expulsion from the iwi. The defendant was no doubt relieved that the Judge was left with the more prosaic sentences options prescribed by the Pakeha Crimes Act. Tikanga Maori at work?

There are currently before the courts hundreds of Maori claims to our foreshore and seabed. The Judge having responsibility for the administration of these cases boasts of grandchildren having a Maori Whakapapa and has openly stated that those claims will be decided having regard to Tikanga Maori. Presumably, he is referring to the provisions of s.58(1) (a) of the Marine Costal area Act 2011 which refers to a claimant holding a specified area in accordance with “Tikanga.” This is defined in the Act to mean “Maori customary values and practices” nowhere are these terms defined. Leaving aside that difficulty one would expect as a starting point the claimant must first establish he or she had a valid claim to the land recognised by whatever rules and practices obtained among Maoris before the coming of Europeans and the advent of the common law. Whether or not the claimant has complied with the provisions of the Act requiring exclusive use and occupation will be decided by evaluation of the evidence and application of the common law. Sadly there appears to be well placed factions in the Judiciary which are open to novel erosions of the common law, and armed with the current judicial dicta from the highest source who can say what will be the effect on long established legal rights hitherto thought to be inalienable. Thus for example will it be sufficient for a claimant to our common foreshore and seabed to succeed by asserting some “cultural belief, custom or ethic” or some other as yet unknown meaning of “Tikanga Maori” to meet the test set out in the foreshore and seabed legislation?

Where to now?

All of which brings us back to the crucial question of Quis custodiet Ipsos custodes. Who will guard the common law from these attacks, and in some cases the simple ignorance of basic principles? The answer can only be the Judges and a failsafe system by which they are appointed; one that focuses solely on the fundamental requirements for holding judicial office. If Judges are left to indulge their social consciences, political preferences, or cultural whims then it bodes ill, not only for the administration of justice but for the cohesion and order of society. People will not obey laws they do not understand and no longer regard as impartially administered. Neither will they see their ancient rights eroded by this sort of experimentation designed to advantage the few to the detriment of the many. In the words of Kipling the Superior Court Judges are the contemporary: “Thin red line of ‘eroes’ when the drums begin to roll”.

Let’s hope the Judges are listening.