The Judicial Conduct Commissioner is still conducting a preliminary inquiry into Justice Bill Wilson. The important judgment may get delivered in the court of public opinion
This is my third post on the contretemps involving Supreme Court Justice Bill Wilson (my first two posts on it are here and here, with a summary of the matter here for those unfamiliar with its background). I concluded my last installment on this issue with the statement:
In drawing attention to how judges may eventually get sacked, I in no way mean to imply that this is likely in Justice Bill Wilson's case. For one thing, I suspect (and certainly hope) that the issue will not be deemed serious enough to warrant a Judicial Conduct Panel being established.
While the part of me that trusts in the basic decency of members of the New Zealand judiciary hopes that the Judicial Conduct Commissioner is still able to reach that conclusion on the evidence put before him, recent media stories are causing the rest of me to suspect that he won't. Furthermore, the media drumbeats are growing so loud that it's becoming hard to see how Justice Wilson can survive in office if he receives anything less than a full exoneration from the Commissioner's preliminary inquiry.
However, before I get to recent developments directly involving Justice Wilson, there's a parallel story I'd like to say something about. A "wool grower" (the contemporary or PC term, I guess, for what simply used to be called sheep farmers) has claimed that his local National MP, Colin King, fobbed off his attempt to get Attorney-General Chris Finlayson to take action against Justice Wilson by claiming Finlayson had stated "Justice Wilson is a mate of mine and there's no way I am pursuing this any further".
Both Finlayson and King deny vehemently that Finlayson made any such statement. I believe them. Here's why.
First of all, anyone who has spent any time talking with Finlayson will have real trouble placing the asserted statement in his mouth. Even allowing for some degree of paraphrasing, I can't imagine such an inelegant term as "a mate of mine" passing his lips.
Second, and more importantly, Finlayson is something of a stickler for proper procedure. Or, to put it another way, he genuinely believes in the rule of law and the importance of his role as the nation's chief law officer. Look, for example, at his preparedness to attach quite inconvenient and politically embarrassing NZBORA notices to his own government's legislative centerpieces. Even allowing for the ties of friendship, I can't imagine him sacrificing his core personal commitments in the way alleged.
Finally, even if Finlayson were likely to abandon his most basic values to protect his friends, there is just no way he'd be dumb enough to tell anyone else he was doing so. There are multiple other reasons he could cite for inaction without referencing his personal relationship with Justice Wilson. Even allowing for the fact that clever people still can say silly things, I can't imagine any politician being so stupid as to admit explicitly to a colleague that they were putting personal ties above their public duty.
So much for that particular red herring. However, of greater importance is a second story in the media about a complaint made to the Judicial Conduct Commissioner against Justice Wilson by a retired Supreme Court Justice, Sir Ted Thomas. Saturday's NZ Herald had two long stories about it, which the Dominion Post also has picked up.
Sir Ted Thomas' complaint rests on the same ground as the original one leveled against Justice Wilson - that he failed to disclose the full extent of his business relationship with a lawyer, Alan Galbraith QC, who appeared before him in a case. However, it expands upon that original allegation in two significant ways.
First, Sir Ted Thomas alleges that Justice Wilson made up stories in an effort to keep his true financial relationship with Galbraith hidden even after his colleagues on the Supreme Court sought information about it. In other words, his failure to disclose could not have been inadvertent or due to some misunderstanding of the relevant law, but only deliberate and intended to deceive his colleagues.
Sir Ted Thomas also alleges that Justice Wilson sat on more than one case in which Galbraith appeared before him without disclosing to the other side that he had a potential conflict of interest. In other words, the failure to disclose was systemic and potentially threatens the administration of justice in a number of cases.
If true, these allegations are pretty damning. And their source - one of New Zealand's senior judges, who has thought long and hard about the project of judging - requires that they be treated with some respect. But before we write off Justice Wilson completely, a note of caution needs to be struck.
Sir Ted Thomas' complaint primarily rests on claims about what he says various lawyers and judges have told him about Justice Wilson's words and actions, and his account of what others think of that behaviour. In legal parlance, this sort of evidence is called "hearsay", and it is generally regarded as being of dubious value because; "the original speaker could have been misquoted, either accidentally or intentionally. Furthermore, the listener, being at least one step removed from the original speaker, cannot witness his or her mannerisms, voice inflections or body language and thus cannot judge the original speaker's credibility. This inherent tendency for unreliability is one reason why hearsay is generally excluded from evidence in civil and criminal trials."
So unless the quoted lawyers and judges corroborate Sir Ted Thomas' account of his conversations with them, it will be difficult to accept his claims about what was said over Justice Wilson's denials. It may or may not be relevant here that none of the sources that Sir Ted Thomas cites in his complaint have laid their own independent complaints about Justice Wilson's behaviour, nor did they put their names to Sir Ted Thomas' complaint.
Nevertheless, the very fact these allegations have been aired in public is beginning to poison the atmosphere in which Justice Wilson must sit. Indeed, one might wonder whether the extensive coverage given to Sir Ted Thomas' complaint makes a self-fulfilling prophecy of his statement in it that: "The matter would eventually break in the media and become public knowledge. If Justice Wilson did not resign, he would be hounded by the media and forced to resign."
Evidence of that poisoning can be seen in the Dominion Post's editorial, which opines: "At the very least Justice Wilson should have stepped aside from his duties, when the case was referred to the judicial commissioner. When he did not do so, Chief Justice Dame Sian Elias should have stood him down." I happen to think this is an unworkable standard to apply - anyone can complain to the Commissioner about a judge, and there's just no way the courts could function if that judge then has to stand aside until the complaint is resolved. But the fact a newspaper is propounding it in Justice Wilson's case is indicative of where opinion is shifting with respect to his case.
I think that a lot now hinges on what the Judicial Conduct Commissioner decides to do at the end of his preliminary inquiry. He may conclude that the whole issue has been a terrible misunderstanding, and throw it back to the Chief Justice to slap Justice Wilson's wrist and counsel caution in the future.
But this outcome seems a lot less likely following Sir Ted Thomas' intervention. He's made some very serious claims, using the names of some of New Zealand's leading legal figures to buttress them. For the Judicial Conduct Commissioner to discount those claims without having them fully investigated in the public light of a Judicial Conduct Panel would be ... how can I put this ... courageous in the extreme.
However, the very decision to recommend that a Judicial Conduct Panel is required would deeply undermine Justice Wilson's position. Judges - especially those at the very top of the legal hierarchy - are required to abide by the standards of Caesar's Wife. Even a preliminary finding that there may have been wrongdoing sufficient to justify his or her sacking surely makes his or her continued presence on the bench exceedingly hard to defend.
All of which may seem a little unfair. After all, even judges should be entitled to due process and the observation of natural justice when accused of wrongdoing. But the judgment that really matters may be the one delivered in the court of public opinion. And that is a forum where justice can be an exceedingly rare virtue.