Judge lauded for rebuking his seniors in Oranga Tamariki case
Tuesday, 24 August 2021
The prospect of a judge raising concerns with another member of the bench while proceedings were ongoing was “constitutionally repugnant,” top human rights lawyer Tony Ellis said after revelations of irregular actions in a high-stakes Oranga Tamariki case
Another human rights lawyer, Michael Bott, was equally critical of any attempt to interfere in a case, saying there were proper ways to raise concerns about a hearing.
Their comments came after news that the then-chief executive of Oranga Tamariki, Sir Wira Gardiner, contacted Chief District Court Judge Heemi Taumaunu and the Principal Family Court Judge Jackie Moran. He raised concerns with them about the manner in which Family Court Judge Peter Callinicos had questioned Oranga Tamariki staff in a custody hearing.
Sir Wira appeared to have been concerned about the way the judge questioned social workers during the first part of the hearing, held in March. He claimed that Judge Callinicos had “bullied” Oranga Tamariki staff giving evidence at the hearing, according to documents obtained by Stuff.
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The case concerns a five-year-old Māori girl who has been in the care of a Pākehā couple for three years. Oranga Tamariki now want to place her with a Māori family so that, they say, her cultural needs can be met.
The judges contacted Judge Callinicos before the hearing was reconvened in late July. Judge Callinicos told the judges it was inappropriate for them to approach a presiding judge to discuss any aspect of a part-heard case. They should refrain from doing so as it was a breach of appropriate judicial independence and judicial conduct, he said.
But Ellis, a Wellington lawyer who is well known for taking on tricky cases, said Judge Callinicos did the right thing.
Principles of judicial conduct were covered by the “Bangalore Principles”, initiated by the United Nations in 2001 and cited in New Zealand’s guidelines for judicial conduct, he said.
“They’re the gold standard internationally, and they say that a judge is a ‘servant of, and answerable only to, the law… and will not act on any order or instruction from a third party, inside or outside the judiciary’,” Ellis said.
“Judicial independence couldn’t be of more importance. The way the judicial system is supposed to operate is that there is nothing said to influence a judge except what is said by the applicants in the case in the courtroom,” Ellis said.
Even though most judges would be able to put aside attempts to influence them, Ellis said, “the appearance of justice is equally important as justice itself”.
“The way Judge Callinicos spoke out… that was not just laudable, but the best way to head this off,” he said.
Bott, who had also made a name for himself representing the downtrodden, was equally critical of any attempt to interfere in a case.
“To have someone from behind the scenes interposing themselves into the conduct of a hearing and the way a judge is conducting themselves, is something I have not heard of before,” he said.
“A quiet word behind the scenes doesn’t appear the proper way of doing it. If there is a concern as to the conduct of a judge then there are ways of addressing it.”
If a lawyer became concerned at the way they or a witness were being treated by a judge, they should raise it directly with the judge, he said.
The Office of the Judicial Conduct Commissioner was formed in 2005 to receive and assess complaints about the conduct of judges.
More than 1,500 complaints were made between 2015 and 2020. Of those, 33 were referred to Heads of Bench and one was recommended to the Attorney-General for a Judicial Conduct Panel to be appointed.
Law Society communications and engagement manager Morwenna Grills said the society had nothing to add.
Judges Taumaunu and Moran have said they would not discuss the case while it was still before the court.