(First published in the Nelson Mail and Manawatu Standard, October 27.)
The government must be grateful that the country was distracted last week by the media frenzy surrounding The Hobbit, because it overshadowed two damage control exercises that might otherwise have received much more aggressive scrutiny.
The first related to (then) Supreme Court judge Bill Wilson, who took the unprecedented step of resigning rather than face a protracted judicial inquiry into alleged misconduct arising from an undisclosed business association with a Queen’s Counsel acting in a case on which he was adjudicating.
Much of the publicity surrounding the resignation of Mr Wilson (as he has now become) focused on his estimated $1 million compensation package. This may have suited the government, the judiciary and perhaps even Mr Wilson himself, since it diverted attention from more serious issues.
Acting Attorney-General Judith Collins spun the payout as “good value” for the taxpayer, saying the costs might have been far higher if the inquiries into Mr Wilson had continued. And it’s true that, from a narrow legal perspective, the government could be said to have got off cheaply, since Mr Wilson’s appointment to the Bench had several years to run.
But what Ms Collins didn’t say, though she may well have thought it, was that paying Mr Wilson off also served the purpose of putting the issue to bed and, therefore, neatly pre-empting an inquiry which might have shown the judiciary in a poor light.
Here was a rare opportunity for some searching public scrutiny of the rarefied world of our top judges, two aspects of which have long been a cause of unease.
The first is the process by which judges are appointed and promoted, which has always been cloaked in mystery. Even senior lawyers profess to have only a vague understanding of how and why appointments are made. Occasional promises of greater transparency have never been fulfilled, and there remains a perception that it’s all done by nods, winks and shoulder-tapping.
Nelson lawyer Sue Grey, who represented the losing party in the Court of Appeal case on which Mr Wilson sat, hinted in a radio interview last week that there were questions to be asked about Mr Wilson’s own rapid rise through the judiciary, which saw him elevated from being a QC to a Supreme Court judge, via the Court of Appeal, in less than a year.
The other, perhaps bigger, issue relates to conflicts of interest. It has been often been said that New Zealand’s judges are selected from a small and exclusive pool. In a society as intimate and inter-connected as ours, personal and business associations are hard to avoid and scrupulous care must be taken to ensure ethical standards are not compromised.
You don’t need to look far for evidence of these connections. Mr Wilson not only shared interests in horse racing with Alan Galbraith, the QC who appeared before him in the Court of Appeal, but both men reportedly had racing connections with Chief Justice Sian Elias and her husband, Hugh Fletcher.
The closeness of the top legal fraternity was further demonstrated by the fact that Attorney-General Chris Finlayson stepped aside from involvement in the Wilson affair because he had worked with Mr Wilson and knew him well.
All of this reinforces, yet again, the folly of relinquishing the right of appeal to the Privy Council in London, where important cases were determined by British judges untainted by any suspicion of conflict of interest arising from friendships or business associations with litigants or their counsel.
Throughout the Wilson case there has been speculation behind the scenes that a public inquiry might bring to light other potentially compromising relationships between judges and lawyers and expose something of an old boys’ club, in which case there may well be relief in legal circles that Mr Wilson has fallen on his sword.
A veil will now be conveniently drawn over the whole affair and normal service will resume, though probably with a keener awareness of the need to declare possible conflicts of interest (not that that should be necessary, since it hardly took a top legal mind to spot an ethical problem in Mr Wilson’s undisclosed association with Mr Galbraith).
Avoiding an inquiry also means Mr Wilson is denied the chance to remove a stain on his reputation, when many of his associates say he has done nothing wrong. All this seems rather unsatisfactory.
Perhaps the most disturbing statement in the affair was Ms Collins’ remark that not ending the matter now would have caused “incalculable damage to confidence in the judiciary”. That carried the implication that whatever came out of the inquiry would have been embarrassing.
Does that mean, then, that we should close our eyes tightly and pretend it didn’t happen? Leaving important ethical issues apparently unresolved could surely have an even more corrosive effect on public trust in the integrity of the courts. It has unfortunate connotations of a cover-up.
The other damage control exercise last week was the decision by police commissioner Howard Broad to merely “review”, rather than re-open or re-investigate, the Crewe murders of 1970. On the face of it, this suggests the police will simply take another look at the same flawed police files that have already led to New Zealand’s most infamous miscarriage of justice.
If Mr Broad thinks this “gesture” (crusading journalist Pat Booth’s term) will finally put to rest 40 years of public doubt and agitation, he’s mistaken.
Two aspects of the Crewe case cry out for justice. The first is that no one was ever called to account for the planting of the bogus evidence that led to Arthur Allan Thomas’s wrongful conviction. The other is that the real killer of Jeannette and Harvey Crewe remains unidentified and has gone unpunished.
This may be the first time I’ve agreed with Peter Williams QC, who acted for Thomas, but Williams is right when he says this is a boil that must be lanced, and he’s also right when he says the job should be done by a distinguished judge from overseas. It cannot be left to the police to investigate themselves, because their record in this capacity inspires no confidence.
My late mother was convinced Arthur Allan Thomas was guilty, because she had implacable faith in the New Zealand police (her brother was an assistant commissioner) and in the fairness and good sense of New Zealand juries. I never argued the point with her, but I believe she was wrong on both counts.