Introduction

In July 2010 a judicial conduct panel was appointed, on the recommendation of the judicial conduct commissioner, to inquire into certain conduct by a judge of the Supreme Court (for further details please see "Judicial challenge to inquiry into conduct of Supreme Court judge"). The principal focus of the commissioner's report was the adequacy of the disclosure that the judge had made to the court of which he is a member, following advice and encouragement to do so. The judge subsequently brought a judicial review application in the High Court to challenge both the legality of the judicial conduct commissioner's recommendation that a panel be appointed and the subsequent appointment. The High Court recently issued its decision,(1) which included consideration of the applicable standard for deciding when a judge's conduct may warrant his or her removal. 

High Court decision

The judge asked the court to quash the commissioner's recommendation that a panel be appointed to inquire into his conduct on the grounds of four errors of law:

• failure to identify correctly the standard of misconduct warranting removal from office;

• failure to apply the standard to specifically identified conduct;

• procedural impropriety, in particular breach of natural justice; and

• taking account of information that was hearsay, confidential and subject to legal privilege.

The court upheld only the second of the four grounds, holding that:

• the commissioner had correctly identified the standard of misconduct warranting removal from office;

• the commissioner's process had not been unfair to the judge; and

• the fourth ground failed on the facts.

Standard

It was argued for the judge, on the basis of written advice given to the government in September 1997 by the solicitor general of the time, that, in New Zealand, moral turpitude is an essential requirement for the removal of a judge. The court rejected the argument and held that the commissioner had adopted a standard which was applicable and sufficient for his purposes. The essence was not moral turpitude, but rather loss of public confidence. The court cited with approval the following passage from Hearing on the Report of the Tribunal to the Governor of the Cayman Islands:

"The public rightly expects the highest standard of behaviour from a judge, but the protection of judicial independence demands that a judge shall not be removed for misbehaviour unless the judge has fallen so far short of that standard of behaviour as to demonstrate that he or she is not fit to remain in office. The test is whether the confidence in the justice system of those appearing before the judge or the public in general, with knowledge of the material circumstances, will be undermined if the judge continues to sit."(2)

The court confirmed that before recommending that a panel be appointed, the commissioner must be satisfied that the matters to be inquired into have a prima facie sufficient basis in fact and are serious enough to warrant such a step. 

Application of conduct to standard

The court considered that the second of the grounds was made out. It identified three broad categories of complaint that had been made against the judge:

• complaints which it described as peripheral to the central issue of disclosure;

• complaints that related to the judge's conduct leading up to the delivery of the Supreme Court's first decision; and

• complaints that related to the judge's conduct between delivery of the first decision and the hearing of the Supreme Court's second decision.

The court noted that the Judicial Conduct Panel Act 1994, which sets out the regime for investigating complaints against a judge, requires that the commissioner: (i) specify the aspects of the alleged conduct that warrant inquiry by a panel, as his recommendation determines the initial scope of the panel inquiry; and (ii) form an opinion as to whether the complaint, if substantiated, could warrant consideration of the judge's removal (even if that opinion is "highly provisional", it being the role of the panel - and ultimately the House of Representatives - to assess a judge's conduct). 

The court considered that, as regards the complaints that were peripheral to the central issue of disclosure, the commissioner had concluded that this aspect of the complaint warranted a referral to the judge's head of bench, but not a recommendation that a panel be appointed. However, the commissioner had failed to exclude those matters from his recommendation that "an inquiry into the alleged conduct is justified", as the alleged conduct included the allegations that the commissioner had considered did not warrant a panel inquiry. The result was that those aspects of the complaints would have remained as live issues for the panel, although the act stipulated a different result, based on the opinion that the commissioner had formed. 

In considering the complaints that related to the judge's conduct leading up to the delivery of the first decision, the court held that the commissioner had carefully and sensitively assessed specific aspects of the judge's conduct against the correct standard. However, in making his recommendation for a panel inquiry, he had failed to specify those aspects of the judge's conduct which were to be the subject of the inquiry. 

As regards the complaints that related to the judge's conduct between delivery of the first decision and the hearing for the second decision, the commissioner had simply failed to evaluate the conduct and form the requisite opinion, possibly because he had erroneously seen his role as being limited to deciding whether to recommend an inquiry, rather than identifying specific matters for inquiry. 

Relief

The court considered that, although the errors did not justify bringing the process to an end (as the application had sought), it would be counterproductive to allow matters to proceed to a panel inquiry without remedying the errors. If matters proceeded on the terms of the recommendation, it was "virtually certain that the panel's work [would] commence with a significant legal argument about the scope of the inquiry". The court accordingly set aside the recommendation and appointment. It remitted the matter to the commissioner, directing him to re-form his opinions and any resulting recommendation in a complete manner, in accordance with the requirements of the act as outlined in the judgment.

No date was set by the court for the commissioner to issue a revised opinion and recommendation.

Comment

The court's judgment analyses the scheme of the act in some detail, commenting that it seeks to achieve a balance between accountability and independence of the judiciary. Public confidence rests not only on accountability, but also on the protection of judicial independence and treating individual judges fairly. The commissioner is not merely a conduit for complaints; rather, he has a role as a decision maker who must form opinions - albeit highly provisional ones - which determine whether complaints are dismissed, referred to the head of bench or used as the basis for a recommendation of referral to a panel.

On October 21 2010 Justice Wilson resigned as a judge of the Supreme Court with effect from November 5 2010. The judicial conduct process will not continue.

Endnotes

(1) Wilson v Attorney General, High Court, Wellington, CIV 2010-485-001147, September 28 2010.

(2) Justice Levers (judge of the Grand Court of the Cayman Islands), [2010] UKPC 24, July 29 2010.