Our courts must not just be impartial and unbiased. Our judges must be seen to be so too

A quick civics lesson to start with. Under our constitutional arrangements, there nominally are three branches of government -- the legislative, executive and judicial. In reality, the intertwining of the legislative and executive branches means it often makes more sense to talk of the "political branches" and the "judicial branch". While the political branches play different roles in our constitution, they both obtain their authority from how they get filled; every three years we get to take part in deciding which person or persons will occupy office (and thus wield power) for the next parliamentary term. By contrast, the judicial branch gets its authority from what it does. In the words of Alexander Hamilton, the courts possess "neither FORCE nor WILL but merely judgment."

Consequently, the authority of the courts to finally determine the outcome of disputes between parties rests on a general, widespread societal acceptance that judges exercise proper judgment on the issues before them. That means their decisions should be guided by "the law" rather than personal opinion (even if we really all know that what "the law" requires in a given case sometimes is a bit iffy and thus dependent on the personal preferences of the decision maker). It also means that they are protected from pressure by the political branch through guaranteed tenure (until age 70 (thanks Graeme Edgeler!)) and a guaranteed salary while in office. And it means that judges should avoid sitting on any case in which it may appear that they might not be able to reach an impartial, unbiased conclusion on the issues before them.

It's this last point that has been rammed home by the Supreme Court's decision to recall its earlier judgment in the case of Saxmere Company Ltd v Wool Board Disestablishment Company Ltd. (You can download a pdf copy of the full judgment from here if you want to.) The bones of the case are that a bunch of wool growers took issue with how much money the Wool Board was giving to them, so they went to court. They won their case in the High Court, but that decision got overturned in the Court of Appeal. After the Supreme Court refused to hear an appeal on the merits of the Court of Appeal's judgment, the wool growers alleged that Justice Bill Wilson (who had been a member of the Court of Appeal bench) ought not to have taken part in that decision because of his business links with the Wool Board's lawyer. Those links, it was alleged, created an appearance of bias on Justice Wilson's part that tainted the judgment and meant the case ought to be reheard.

Now, not every link between a judge and a party to a case (or the party's lawyer, or a witness, etc, etc) will give rise to an unacceptable appearance of bias. After all, in a country as small as New Zealand, there's a reasonably high chance a judge will have some connection to someone involved in the proceedings. That is even more true of the legal community in New Zealand, where senior lawyers (who go on to fill most of our judicial posts) will develop all sorts of professional and personal relationships over the course of their careers. And so the Supreme Court, in a judgment released earlier this year, concluded that Justice Wilson's business relationship did not meet the relevant legal test of whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". Consequently, as there was no "apparent bias" on his part, there was no reason to overturn the Court of Appeal's decision.

End of the story, you might think. However, after the Supreme Court issued its judgment, it emerged that Justice Wilson had not fully disclosed the extent of his business relationship with the Wool Board's lawyer. They weren't simply close friends who also passively co-owned some race-horses and breeding facilities, as the Supreme Court believed at the time of its judgment. Instead, Justice Wilson effectively owed the Wool Board's lawyer at least some $37,000, and perhaps as much as $242,804. Furthermore, the two of them were about to borrow another $700,000 together to expand their racing enterprise, so the relationship was an active business one.

So Saxmere went back to the Supreme Court and asked it to recall its earlier judgment. This is a pretty major step for a court to take -- it only does so if its decision was made in ignorance of a statute or authoritative precedent; or "for some other very special reason justice requires that the judgment be recalled." Simply arguing "you got it wrong" isn't good enough to win a recall of a judgment.

Yet the Supreme Court accepted the application. In a judgment that reads like it was delivered through gritted teeth, the Court ruled that had it known all the facts at the time of its first decision, it would have found Justice Wilson's relationship with the Wool Board's lawyer met the legal test for apparent bias. And given that this was a matter that went to the heart of the perceived neutrality and objectivity of the judiciary, it justified recalling that earlier judgment and instead remitting the case to the Court of Appeal for a full rehearing.

There's a bunch of reasons why this case is personally embarrassing for Justice Wilson, even though it is important to stress there was no finding that he actually did display any bias toward the Wool Board. First up, he's now a member of the Supreme Court, so this decision in effect represents his peers' conclusion that he put himself in a position where "fair minded lay-observers" would think he couldn't do a judge's job properly. Second, there's a big question mark over why his disclosure to the Supreme Court missed out some pretty crucial details about his relationship with the Wool Board's lawyer. In fact, it seems there's only three logical possibilities:

(1) He just forgot the details.

(2) He remembered the details, but didn't think them relevant to the issue at hand.

(3) He remembered the details, thought them relevant to the issue at hand, but didn't want them revealed.

If the first possibility is true, it indicates just how ridiculous are the sums of money that top legal minds in New Zealand "earn". If the second possibility is true (and it seems to be the one preferred by the Supreme Court itself, when it suggests "[i]t may be that ... the Judge had not anticipated the view which we would form of the applicable principles [relating to apparent bias]"), then I guess that explains things. But really - not considering a debt in the tens-of-thousands of dollars to a person you are actively in business with is relevant to the question of whether a "fair minded lay-observer" would think you might favour that person? One might wonder if that displays the sort of "proper judgment" we'd like to see from a judge on our highest court. And it just doesn't bear thinking about what it might mean if the third possibility were true – so I won't.

We may yet learn more about this matter, with news that the Judicial Conduct Commissioner will look into it. That investigation is a good thing. Because discontent with the political branches of government can be ameliorated by the promise of a good purge every three years. But the whole point of the judiciary is that they cannot (and should not) be subject to easy dismissal - we're pretty much stuck with the judges we've got. So if the courts are to properly perform their role, the Caesar's wife principle must apply to them. It's not enough that they give fair, impartial and reasoned judgments. They must bend over backwards to be seen to be doing so.