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.