New Zealand's accountability deficit

(First published in The Dominion Post, June 16.)

When did you last hear of a judge resigning because honour demanded it, or to atone for a catastrophic error?

The most recent example I can think of is former District Court judge Robert Hesketh, who did the honourable thing by quitting in 1997 after pleading guilty to charges arising from fraudulent expense claims.

His fellow judge Martin Beattie faced similar charges but chose to fight them and was acquitted.

Beattie claimed $10,000 worth of expenses for hotel accommodation when in fact he had stayed in his own home. A jury appeared to accept Beattie’s defence that he thought he was entitled to claim the expenses and had never been told otherwise.

I believe the court of public opinion reached its own verdict, and it wasn’t the one the jury arrived at.

Beattie subsequently paid the money back, which seemed an acknowledgement that he wasn’t entitled to it in the first place, but he refused to resign despite being asked to do so by then Justice Minister Doug Graham. 

He was subsequently moved from frontline court duties, taking up an appointment as the Accident Compensation Appeal Authority. But he retained his status, and presumably his judge’s salary too.

Move on now to 2011 and the tragic murder of Christie Marceau. All murders are tragic but this one especially so, because it was committed by a man who was out on bail when clearly he represented a threat to the 18-year-old North Shore woman.

The police knew Christie was at risk from Akshay Chand and so, apparently, did Judge Barbara Morris, who had twice ruled that he should be kept behind bars for an earlier attack on the same victim.

But then Chand came before Judge David McNaughton. He wrote a letter to the judge saying he was remorseful and wanted to apologise. He later told police that his sole purpose in writing the letter was to get bail so he could murder Christie.

The ruse worked. The judge bailed Chand to live in a house just 300 metres from his intended victim – this, despite Christie’s own plea that he be kept behind bars.

Thirty-two days later Christie was dead – stabbed repeatedly in a frenzied attack by Chand, who was subsequently found not guilty on the grounds of insanity.  

Clearly, judges are human and prone to error. We can't expect them to have  the wisdom of Solomon. But some mistakes have such profoundly catastrophic consequences that the public is entitled to expect an act of atonement.

In the Christie Marceau case, a contributory factor was the apparent failure to include on Chand’s court file a record of Judge Morris’s earlier decisions to refuse bail and her cautionary comments about Chand’s mental state. Even so, there was ample evidence to justify him being kept in custody.

Once the enormity of Judge McNaughton’s mistake became obvious, it would have been fitting for him to step down. Some of us might wonder how he managed to sleep at night, let alone continue to sit on the Bench. But he did.

If it’s true that Judge Morris’s notes were never included on Chand’s court file, I also wonder whether the clerk responsible for the oversight ever faced any consequences – which brings me to the point of this column.

From top to bottom, New Zealand seems to suffer from an accountability deficit – a stubborn unwillingness by people in positions of public responsibility to fall on their swords when they are found to have behaved either badly or incompetently.

We’ve been reminded of McNaughton’s terrible mistake this week because an inquest is finally being conducted into Christie Marceau’s death. But there have been plenty of other examples.

In this column several weeks ago I referred to the e-coli outbreak caused by contaminated tap water in Havelock North. No heads rolled, despite 5000 people getting sick.

Pike River? The same. The collapse of the CTV building in Christchurch? Ditto.

The builders of leaky homes have largely escaped punishment and no one seems to carry the can when supposedly state-of-the-art, earthquake-resistant buildings are rendered uninhabitable while much older buildings are undamaged.

Only this week it was revealed that the Ministry of Social Development spent nearly $300,000 of our money in legal costs on what was clearly a butt-covering exercise after a woman killed herself following an accusation of benefit fraud which was found to be unsubstantiated.

One thing we do very well in this country, besides rugby, is evasion of responsibility. We get reports and inquiries, hollow apologies and hand-wringing ... and then it's back to business as usual.

What was that about accountability?

Two heads should be rolling today. The first is that of Judge David McNaughton, who released Akshay Chand on bail despite a written plea from Christie Marceau, who had undergone a terrifying ordeal at Chand's hands and feared that he would come after her again. Police also opposed bail, pointing out to the judge that Chand was bent on revenge and that Christie was terrified of him.

McNaughton also had in front of him a letter from Chand, saying he was remorseful and wanted to apologise.

What did the judge do? He took Chand at his word and released him to live at a house just 300 metres from Christie. (He did, however, place him under a curfew and order him not to have any contact with Christie - a tragically misplaced gesture of faith in the magisterial power of his office.) Thirty-two days later, Christie was dead - stabbed an estimated 10 times in a frenzied attack by Chand on the back deck of her house. She died in her mother's arms.

Yesterday, Chand was found not guilty of murder by reason of insanity. The Crown Solicitor, Simon Moore, SC, said Chand told police after Christie died that his letter was  written with the sole purpose of getting bail so he could kill her. Thanks to the gullible judge, the ruse worked.

So: Christie is now dead, her family faces a lifetime of grief, and Chand will be put away in a mental health facility until it's deemed safe to let him back into the community. Judge McNaughton, meanwhile, will presumably continue to sit in the District Court and pull a salary of slightly less than $300,000 a year.

If he has a conscience, he will resign. If he doesn't, he should be dismissed. But of course, that never happens. Who can recall a member of the judiciary being fired because of an act of incompetence or shocking misjudgement?

McNaughton, incidentally, is the same judge who was  rebuked by the judicial conduct commissioner, Sir David Gascoigne, for overstepping the mark by ordering journalists out of his court when he was conducting a bail hearing in connection with the Kim Dotcom saga.

In that case, McNaughton showed not only a disregard for well-established principles of judicial openness, but also, intriguingly, a greater readiness to listen to the authorities. He refused to grant Dotcom bail - a decision subsequently reversed by another judge.

He got it wrong then, and he got it wrong again - with fatal consequences - in the case of Christie Marceau. Dotcom, who presented no threat to anyone, was put in the slammer while the homicidal Askhay Chand was released with a feeble instruction that he should behave himself. At what point does someone take McNaughton aside and suggest he's in the wrong job?

The other head that should roll is that of Air Vice Marshal Peter Stockwell, chief of the RNZAF. Stockwell may not be personally responsible for the cavalier attitude to safety that resulted in potentially dangerous goods being shipped on civilian flights; neither is he personally responsible, as far as we know, for the casual and perhaps wilfully deceptive way the air force dealt with the issue. But something is wrong when reports point to a culture of general slackness in the air force, as evidenced by the latest controversy and by the failings exposed by the court of inquiry into the Anzac Day helicopter crash of 2010.

It's not good enough for Defence Minister Jonathan Coleman airily to say that he has confidence in the air force and its leadership. Complacency and resigned acceptance seem to have become the default reactions whenever shortcomings are exposed in government. It often seems that the more we hear about accountability, the less we see it demonstrated.

When the head of an institution falls on his sword, even though he may not be personally responsible for whatever mishap or blunder has occurred, it sends a message that reverberates down through the ranks. It demonstrates that incompetence or wrongdoing has consequences. Our  system of government is built on that principle; it's about time we saw it honoured.