Friday, October 1, 2021

It seems to be open season on Judge Callinicos

There have been significant developments in the case of Moana (not her real name), the Maori girl whom Oranga Tamariki wanted removed from her Pakeha foster parents. I commented on the case here, here and here.

The Dominion Post’s long-serving Hawke’s Bay reporter Marty Sharpe, who broke the story, reported yesterday that the Judicial Conduct Commissioner, Alan Ritchie, found that two senior judges did not act inappropriately when they contacted Family Court judge Peter Callinicos to express concerns over his handling of the Moana case.

Chief District Court judge Heemi Taumaunu and Principal Family Court judge Jackie Moran intervened while the case was still in progress, prompting a complaint from Callinicos that their action compromised his judicial independence.

The two senior judges, known as the Heads of Bench, acted after Sir Wira Gardiner – then head of Oranga Tamariki, the department whose social workers Callinicos grilled over their behaviour in the Moana case – had contacted them.

According to Ritchie’s preliminary report, Taumaunu denied any attempt to direct Callinicos and said he and Moran wanted to engage with him over his in-court conduct, not his decision-making.

Taumaunu said he and Moran had become involved after concerns were expressed about Callinicos’s handling of an earlier case relating to a Mrs P. He said Callinicos “appeared to me to have been engaging in a pattern of bullying behaviour”.

Moran said there had been numerous complaints about Callinicos and they needed to be addressed promptly.

Extraordinarily, Ritchie sought comment from Taumaunu and Moran but according to Callinicos, not from him. Sharpe quoted Callinicos as saying: “If the Judicial Conduct Commissioner was investigating a complaint in which I was a participant, but not the subject of, then in the absence of some extraordinary reason, I would have thought that I would have been invited to make input.”

I would have thought so too. Even junior reporters are expected to seek both sides of the story (although, sadly, less so now than back in the day). I would have thought it went without saying that the same fundamental principle of fairness would be scrupulously applied in a matter as serious as a complaint about judicial conduct.

David Farrar of Kiwiblog has a good critical analysis of Ritchie’s preliminary finding here. But in the meantime, the Moana case has widened to include a judicial heavyweight in the person of Supreme Court judge Willie Young, who has joined the apparent pile-on against Callinicos. And Stuff reports that an “anti-violence advocacy group” – none of whom are identified – is asking how the Family Court judge will be made accountable for actions relating to the case in which the woman named as Mrs P was later found to have been wrongly convicted of perjury.  

Citing leaked documents, Stuff quotes from a letter to Ritchie in which Justice Young reportedly said he had been providing advice to the Heads of Bench about Callinicos since April.

Young said 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 Judge Callinicos as excessive, partisan and demeaning.

The leaked documents also reveal, according to Stuff, that Callinicos refused to meet the heads of bench, insisting instead that his lawyers talk to the Chief Justice, Dame Helen Winkelmann.

Ritchie has now kicked the problem upstairs by referring it to Winkelmann and says he’s confident the circumstances will be subjected to “appropriate scrutiny”. In the meantime, the Callinicos affair raises important issues.

From the outside, it looks as if the judicial establishment is out to make an example of Callinicos, who’s acknowledged as tough and direct in court. The aim might not be to discourage other judges from rocking the boat, but that's likely to be the outcome.

There’s also a discomforting impression that the case has been tainted by ideological considerations. Callinicos first made himself unpopular with his involvement in the Mrs P case, which has a long and complicated history, and now he’s a target. He has made the dangerous mistake of (1) antagonising activist women’s groups and (2) siding with a Pakeha couple against Oranga Tamariki and the local iwi.

On a broader level, the controversy raises crucial questions – not for the first time – about judicial independence from political influence and about the opacity of the process by which judges are appointed and held to account. We are entitled to assume that members of the judiciary – including those at the very top – are chosen for the right reasons, and that they are immune to ideological and political currents. But are they? Cases like this may cause people to wonder.


Anna Mouse said...

I read this in the paper this morning and I thought then that Callinicos was being thrown under the bus by the CRT ideologues. New Zealand is becoming a banana (no longer) democracy.

Eamon Sloan said...

I found this piece from The Gisborne Herald (28th April). It references the “Mrs P” case – all prior to the “Moana” case. Reading between the lines might cast a different light on the whole Judge Callinicos affair. See at the end of the article a comment re another case judged by Callinicos. My prediction is that Callinicos will soon find himself working elsewhere in the judicial system. Question: Is Callinicos bringing the judicial system into disrepute?

Karl du Fresne said...

I would be wary about forming judgments on the basis of one newspaper story. As I said in my post, the case has a long and complicated history. People familiar with the background say media coverage such as this doesn't tell the full story or reflect all the complexities of the case.

Andy Espersen said...

Isn’t the whole problem here that all this is being played out in public while sub judice until the end of appeals. I thought there were written legal rules against such behaviour – but it seems they can only be unwritten. Peter Callinicos must have leaked to the press the fact that he was contacted by higher ranked judges re the case – who else could have done it?

Of course, I am just as horrified about the little girl being uprooted from her Mum and Dad by cruel authorities as the next fellow – and as thankful to Callinicos for standing up for her. But I come to think : there can be nothing unusual in judges and lawyers contacting each other privately about individual cases. Free people can and should be able to convey their opinions to others without fear and unease.

Perhaps Callinicos should have simply swallowed and ignored the advice, comments, counsel, interference (whatever you call it) which he received from his higher ranked colleagues (???).

Terry M said...

It would appear that Sir wira Gardiner has resigned(pushed for his bully boy tactics?).May his responsible minister who appointed him rapidly follow suit, taking with him a couple of judges and even a Prime Minister. That's where the buk stops.

Karl du Fresne said...

My understanding is that Wira Gardiner stepped down for genuine health reasons.

Ken said...

I've sat in Judge C's court on numerous occasions. In my view (I'm not a lawyer - but have been in as a lay assistant)
He's direct, on point and fair and principled.
If he thinks folks are trying to game the systems he says so. .
He's what's needed in a Family Court Judge.
The women's groups (women'refuge etc) don't like him because he doesn't automatically accept claims of victimhood without evidence. When there is evidence he backs the victims to the hilt.
Our justice system needs Judges like this.

Unknown said...

I read Eamon's linked news story and was left none the wiser. Either the lady in question was dishonest or the court system was inept. This sentence from the article suggests it's both

"The Crown had failed to prove the charge because it needed to show that when she signed the affidavit the woman was saying she believed the altered ACC form was a true copy of the original, not whether she believed it to be a true statement of fact".

So... you can present altered documents in court as along as you believe that that's what the originals documents should have said in the first place?

Doug Longmire said...

I see similarities between this attack from the woke on Callinicos and the action of communistic dictators in silencing (i.e. eliminating, using anti-aircraft guns) any critics or dissenting public figures. Check out North Korea.
Yes - very different in intensity, but the process looks similar to me.

Rob M. said...

If it is correct that, as reported, the Judicial Conduct Commissioner, Alan Ritchie did not approach Judge Callinicos for his input and response before finding that the conduct of the two Heads of Benches was not inappropriate, that appears on its face to be a staggering breach of natural justice. Is there one law for Joe citizen and another for those elevated to positions where they are supposed to uphold the rights of all who are supposedly equal under the law? It appears so from this the process followed in this matter.

Rob M.

pdm said...

I know a member of the Calinico's family possibly/probably a brother, I do not know but, he is in the legal fraternity as well. A good guy and if I lived in Napier and was looking for a Lawyer I would have no hesitation in approaching him. It was him acting as a clients's Lawyer that occasioned me meeting him 15 odd years ago.

If Judge Calinicos is like him he has my support.

Max Ritchie said...

Wira is ill. He is not a bully-boy.

David George said...

There's a twist in the tale. Dr Tony Ellis has lodged a complaint to the Judicial Conduct commissioner and the Chief Justice regarding the treatment of the prior complaint.
Looks like a web of corruption and influence behind the scenes confirming your suspicions above Karl. Could get messy.

Chris Morris said...

The Tony Ellis complaint detailed on Kiwiblog, referencing both David's and your blogs as information sources must be making the judiciary squirm. They can't brush it under the carpet. It will be interesting to see which if any of the MSM run it. It will really test their "independence" for everyone to see. And I can't see them being able to hush Dr Ellis up either.
The old adage about getting the popcorn ready might be the most valid comment.

Phrank Dee said...

[1984] 3 AllER 201 Mahon v Air New Zealand Ltd makes clear that a non-party, i.e., Judge Callinicos, has a right to be heard before an adverse finding against him is made. The corrupt JCC would know this as it is taught in law schools throughout New Zealand. I am a former barrister in New Zealand who has fought the system at every level possible and I can guarantee the public that the system is far more corrupt than you could ever imagine. I call it the just-us system and as George Carlin would say, it is a big club and we are not in it.

Phrank Dee said...

Another blog commenting on this, I have also laid criminal complaints against Taumaunu, Moran, Winkelman and William Young for attempting to pervert the course of justice. If I approached a judge with an envelope of cash (carrot) or a baseball bat (stick) and said I did not like his approach to a case/witness/lawyer I would be arrested straight away. If the Chiefs of the Supreme, District and Family Courts (who have great power) approach a Judge the implication is that his career, employment and/or reputation are in jeopardy unless he acts in accordance with their "guidance". The rule of law must apply equally to all, even if it means the most very senior judges need to be placed in the dock to answer for their crimes.

Karl du Fresne said...

Phrank Dee,
"Corrupt" is a very potent word. Shockingly bad judgment, breaches of natural justice and unprincipled conduct don't automatically equate with corruption.

Phrank Dee said...

All due respect, look up the meaning of corruption, it means a system not functioning properly, i.e., a corrupted hard drive. I do not mean a bribe or kickback, I mean the more pernicious version whereby those in power protect each other with winks and nods.