Tuesday, October 5, 2021

More on the gang-up against Judge Peter Callinicos

What began as a controversy over a judge’s decision to leave a young Maori girl in the care of her Pakeha foster-parents has touched off an extraordinary judicial scandal that threatens to shake public confidence in the integrity of the courts.

Allegations made by lawyer Tony Ellis implicate New Zealand’s two most senior judges in an affair that reflects badly on the judiciary and its handling of concerns about Hawke’s Bay Family Court judge Peter Callinicos. What Ellis has disclosed will almost certainly serve to reinforce perceptions that Callinicos has been the target of a furtive - in fact you might say conspiratorial - gang-up.

According to Ellis, the case threatens judicial independence and has a caused a major rift among judges. Senior lawyers are scratching their heads trying to recall whether any judicial squabble has ever before been aired so publicly. Figuratively speaking, the fire is in the fern and threatening to singe some illustrious names.

In an incendiary letter to the Judicial Conduct Commissioner, Alan Ritchie, Ellis has alleged that:

■ Callinicos was “unlawfully lobbied” by Chief District Court Judge Heemi Taumaunu and Principal Family Court Judge Jackie Moran, together known as the Heads of Bench, over his handling of a case that was then still in progress.

■ Ritchie, whose role is to assess complaints about the conduct of judges, “irrevocably compromised” his independence through the way he dealt with concerns about Callinicos.

■ Callinicos was investigated without his knowledge and with no opportunity to defend himself.  

■ Callinicos himself claims he received “misleading and bullying” correspondence from the two senior judges, known as the Heads of Bench, and was the subject of “scathing” letters sent to Ritchie by the Heads of Bench and by the second-ranked judge of the Supreme Court, Justice William ("Willie") Young.

■ Ritchie predetermined Callinicos’s guilt without his knowledge and without giving him a chance to respond to criticism.

■ Ellis quotes Callinicos as saying: “ … the dumping of this unilateral crap into [the] public domain compounds the injustice as I have no recourse in the investigation, or in the public eye.”

■ Chief Justice Dame Helen Winkelmann and Young are implicated in the affair by allegedly failing to disclose that Young was involved in behind-the-scenes discussions about the case.

■ Young reached conclusions about the case without giving Callinicos an opportunity to put his side.  

■ According to Callinicos, 60 of New Zealand’s 180-odd judges have contacted have contacted him expressing their support. Callinicos is quoted as saying the actions of his judicial superiors have sent “shivers of fear” through the District Court, of which the Family Court is part.

Ellis accused Ritchie of kowtowing to senior judges and added: "A well-informed independent observer would ask the question: "Who are the bullies here, Judge Callinicos, or Justice William Young and the Chief Justice?"

Readers of this blog will be familiar with the background. In the Family Court, Callinicos thwarted Oranga Tamariki’s underhand attempts to remove a girl – whom Stuff named Moana – from a loving, stable home and place her with unfamiliar Maori caregivers on the pretext that her Pakeha foster parents weren’t meeting her “cultural needs”.

In a 145-page judgment, Callinicos tore into Oranga Tamariki social workers over their conduct in the case.

His ruling rapidly escalated into a dispute over judicial independence when it emerged that Taumaunu and Moran had intervened in the case, apparently at the urging of the then acting Oranga Tamariki CEO Wira Gardiner.

Callinicos protested that this action compromised his judicial independence – a point subsequently taken up by Ellis and other unnamed lawyers in complaints to Ritchie.

In a preliminary report issued last week, Ritchie inflamed the issue further when he found that the two senior judges had not acted inappropriately. Extraordinarily, he appears to have reached this conclusion without bothering to speak to Callinicos.

That provoked Ellis into lodging the further complaint implicating Winkelmann and Young.

In this latest complaint, a copy of which has been sent to Attorney-General David Parker, Ellis alleges that when Winkelmann and Young met lawyers acting for Callinicos, they failed to disclose that Young “had been involved in making a finding  that Judge Callinicos bullied witnesses [in the Moana case], and that the Chief Justice concurred”.

Ellis continued: “Justice William Young, in reaching a conclusion that Judge Callinicos had made comments that were disproportionate and inappropriate, [had] made gratuitous criticisms, and engaged in what appears to be bullying, following an investigation which did not seek input from Judge Callinicos, and taking no action to seek such input himself, this undermined judicial independence.  The Chief Justice’s concurrence compounded this error.”

Ellis challenged Ritchie to recuse himself from further consideration of the case, writing: “Your approach has created not just actual bias, or its appearance, but worse created a scandal not seen since Edwards [a landmark case from 1892], and has now implicated not only … the Chief District Court Judge and the Principal Family Court Judge, but now also the Chief Justice, and Justice William Young, NZ’s second highest ranked Supreme Court Judge as well.”

What is now clear is that judicial concerns about Callinicos date back to his handling of a controversial unrelated case in April involving a woman named as Mrs P, whose cause was taken up by feminist academics and sympathetic journalists who claimed she was mistreated in Callinicos’s court.

According to leaked documents published by Stuff last week, Young had been providing "advice" to the Heads of Bench about Callinicos, apparently without his knowledge, since then.  

Young was reported as saying in a letter to Ritchie that there seemed to be a pattern of conduct by Callinicos and those on the receiving end “considered, understandably, that they had been bullied”. He had read transcripts from the Mrs P and Moana cases and saw the intervention of Callinicos as “excessive, partisan and demeaning".

Even from a non-legal standpoint, this seems an extraordinary way of going about things. Callinicos appears to have been investigated behind his back by the country’s second most senior judge and been given no chance to respond to accusations against him. According to Ellis, that's a denial of natural justice.

Meanwhile, questions arise about apparent bias in the media coverage of the Mrs P case, which unquestioningly took her side and almost certainly contributed to the anti-Callinicos mood. People familiar with the case say the coverage didn’t fairly reflect a long and complicated history dating back to 2012 and involving multiple judges.

In fact media coverage of the Callinicos affair by Stuff – the only media organisation to report the Moana case and its repercussions – forms an intriguing sub-plot to the main narrative. While coverage of the Moana case by Stuff's veteran Hawke's Bay reporter Marty Sharpe has seemed fair, neutral and balanced, the same can’t be said for the loaded reporting of the Mrs P case.

Kirsty Johnston, the Stuff journalist who reported the protest in support of Mrs P by women academics and “domestic violence experts” in April, wrote a story published last Friday which highlighted Young’s claim that Callinicos had bullied Mrs P and subjected her to demeaning treatment.

To bolster the story, Johnston went back to the same “anti-violence advocacy group” she had quoted in April. Not surprisingly they obliged by calling for Callinicos to be “made accountable” for the Mrs P case and others he had presided over. No one reading the story would have been left in any doubt that Callinicos had behaved reprehensibly. After all, even the country's second most senior judge apparently thought so.

Coincidentally or otherwise, Stuff gave that story far greater prominence than one published a day earlier by Sharpe, which took a notably more neutral (and therefore less condemnatory) tone in reporting Ritchie’s preliminary finding in the Callinicos case.

Johnston followed her Friday hit-job on Callinicos with another the following day targeting retired Hawke’s Bay judge Tony Adeane, who was in the frame for several cases in which his decisions were overturned on appeal because of faults in the way he had directed juries.

Two stories on successive days, both reflecting badly on ageing male judges? It looked suspiciously like a pattern – an impression reinforced by Johnston’s description of herself on the Stuff website as “an investigative journalist with an interest in inequality, gender and social justice”. An activist, in other words, who by her self-description inevitably creates doubts about the neutrality of her work.

But at least Stuff published the stories, which is more than can be said for its treatment of the latest disturbing claims by Ellis, which apparently warranted not a word of coverage, although a copy of his letter had been sent to Sharpe.

Put all this together and you get a very worrying picture. Courts are supposed to prevent abuses of power and the media are supposed to expose them. The worrying conclusion to be drawn from the Callinicos affair is that we may no longer be able to depend on these two vital institutions to guard our rights and freedoms.

 

12 comments:

David said...

Given that Tony Ellis sent Marty Sharpe a copy of his letter of complaint, I am mystified that as of this moment, nothing about it by Marty or any other reporter has been published on Stuff. It's not as if Marty would not recognise the importance of the letter or the mana of Tony Ellis in our justice system.

According to Callinicos, 60 of New Zealand’s 180-odd judges have contacted have contacted him expressing their support.

That was the killer line for me in Tony's letter. That even one or two judges might surreptitiously offer their support to Judge Callinicos would be noteworthy. But for 60 of them to do so is extraordinary.

Johnston’s description of herself on the Stuff website as “an investigative journalist with an interest in inequality, gender and social justice”. An activist, in other words, who by her self-description inevitably creates doubts about the neutrality of her work.

Jesus wept. While I know many "journalists" today see themselves as activists for the correct causes, I hadn't realised they were now boasting about it like this.

Thanks Karl for keeping on this very worrying case. The independence of our judiciary is one of our fundamental safeguarding bastions against abuse of power. As Doug Graham once told me back when he was Minister of Justice: "I'd rather have my rights protected by judges than by politicians." I don't think even our politicians would be as brazen in attacking the very concept of judicial independence as Oranga Tamariki and some of our senior judges have been exposed now as doing.

David said...

As an addendum. Judge Callinicos doesn't seem underqualified for either his work or understanding Maori issues. This from the media statement when he was appointed in 2002:

Peter Callinicos has worked for Callinicos Hayward and predecessor firms since admission in 1982. He has practised in a wide range of areas, but with a focus on medical law and family law. He has handled some significant Waitangi Tribunal and accident compensation cases and served as an independent reviewer for HIH Insurance.
Mr Callinicos has also played an impressive role in the community having held executive roles on St Joseph Maori Girls’ College Board of Trustees, the Hawkes Bay Ethnic Council, the Hawkes Bay Cultural Trust and the UNICEF New Zealand Board. He served on the Council of the Hawkes Bay District Law Society for 13 years and has chaired the Hawkes Bay Medico-Legal Society since 1992.

https://www.beehive.govt.nz/release/new-judges-appointed

Chris Morris said...

With the case now in the public domain, it will be interesting to note when Stuff or the Herald get around to reporting it and what the spin is. It will be held up because of editorial directive. This will give them a dilemma. They can't ignore it too long because it is very newsworthy and being commented on. And Mr Ellis is a very good publicist. They can't easily spin it because of the position of the people involved. Very hard to support the senior judges when most people know they were doing what they expressly are not allowed to do. And how long before the government is involved. Once questions start in the House, asking Mr Faafoi if he has confidence in his judges, it will escalate.
The best they can do is harm minimisation.

David 888 said...

It’s simply disturbing! The foul stench of corruption oozing from within the previously highly regarded bastions of a democratic society. We have the judiciary, the medical council and the fourth estate all showing lack of probity, independence, proper governance and conflict of interest. Have they all been brought with the investment monies from the CCP, paid to our Labour Government, or is this malaise due to something else?

Chris Morris said...

I am happy to say I was proven wrong. It is up on RNZ of all places.
https://www.rnz.co.nz/news/national/452964/top-lawyer-complains-over-judge-callinicos-saga

Karl du Fresne said...

At the time I posted, the story hadn't appeared in any mainstream media. Only Kiwiblog had reported it.

pdm said...

I saw the `hit job' on Judge Tony A'Deane and could not believe what I was reading. I have known Tony since I went to Gisborne with the BNZ in late 1977 and between then and when I left on transfer in early June 1982 had regular contact, sometimes as often as weekly with him on client business. I also had the occasional beer with him when our paths crossed out of work hours.

He was always a straight shooter and easy to work with on client business. When I left Gisborne and we both finished up in Hawkes Bay he a judge in Napier and me in Waipawa our paths did not cross but in the 80's court cases were part of the news in the paper. Tony was always well reported on and he had no problem in making sure those appearing before him knew why they were there and ensured once found guilty they knew the error of their ways.

Direct and fair is how I would sum him up as a Judge - he did not suffer fools. The way this attack was worded just did not fit with the Tony A'Deane I knew and respected - a hatchet job.

David said...

Marty Sharpe now has a story that all but buries the complaint by Tony Ellis, but does headline the "support from 60 judges" angle that was the killer line for me.

https://www.stuff.co.nz/national/126571391/embattled-judge-says-he-has-received-support-from-60-colleagues

Karl du Fresne said...

PDM,
I don't doubt anything you say about Judge Adeane as a person. I've written admiringly about him myself - for example, here in 2008: https://karldufresne.blogspot.com/2008/12/tony-terminator-strikes-again.html But the evidence does suggest that he was wayward in some of his judicial decisions.

Karl du Fresne said...

David,
Marty Sharpe has done a thorough and straight job in his latest story on the Callinicos affair, in which he introduces important new information - in particular, this paragraph from an email Callinicos sent to friends: “Where to from here? Well, I predict the drive will now be on to get a JCC investigation of me in 'Moana’ case, get Ritchie to recommend a conduct panel, fill it with judges who will sing the party song and sack me.”
This is another sensational story with important constitutional implications, but Stuff has inexplicably buried it. I could find no trace of it on either the Stuff or the Dominion Post websites this morning.

Hilary Taylor said...

All very, very interesting. I don't bother reading Johnston's pieces anymore...she & other 'caped crusaders' get short shrift from this Press subscriber. I've certainly followed the Sharpe columns. Good on Ellis, Callinicos and his last comments tell you all you need to know about what is going on here. Thanks to David too for his addendum about the man/judge.

pdm said...

Karl - I lost track when newspapers ceased covering the less spectacular court cases. Maybe Tony got a bit slack and stopped dotting his i's and crossing his T's. In short not putting in the hard yards - I don't know.

Having said that there are still elements of a hatchet job in what I read. He did not deserve that.