An unnamed judge facing an extremely rare misconduct inquiry has failed in a bid to have the case heard in private.
The judge was also refused a request for documents to be kept out of the public eye, after a three-person judicial conduct panel said transparency was “integral” to the public interest in the complaint.
However, the judge was allowed to keep their identity – and the details of the complaint against them – suppressed until after a hearing in April decides if the inquiry will go ahead
Not even the judge’s gender or their role within the judiciary has been disclosed in the case so far, which is just the second of its kind in New Zealand.
Documents released to Stuff show the case stems from a complaint made to the Judicial Conduct Commissioner Alan Ritchie, who conducted a confidential preliminary examination.
In July last year, Ritchie recommended a panel be appointed by Attorney-General David Parker.
In late August, Chief High Court Judge Susan Thomas, District Court judge Lawrence Hinton, and former diplomat Jacqueline Caine (Ngāi Tahu, Kāti Māmoe, Waitaha) were named as the panel members.
In October, the judge filed two applications with the panel. The judge said, effectively, the panel should refuse to hold an inquiry because it didn’t have the “jurisdiction”.
The judge also asked for interim suppression orders (which were granted); and for any hearings to be held in private.
A panel decision about the hearings shows the judge was concerned that – if the panel decided it did not have jurisdiction after all – it was unfair for “unsubstantiated allegations” to be aired in public.
“This, the Judge says, would cause irreparable harm to the Judge’s professional reputation,” the decision said.
Special Counsel in the case, Wellington lawyer Dale La Hood disagreed with the judge, saying any hearing in the case should be public.
He argued there was a genuine public interest, noting the alleged misconduct was such that the Commissioner and Attorney-General considered a panel should be appointed.
The panel agreed with La Hood, saying it considered, when looking at the law, that there was a presumption that all hearings would be public.
While it could make exemptions, it declined to do so in this case, quoting from the Supreme Court decision Erceg v Erceg that described open justice as a “principle of constitutional importance” and “an almost priceless inheritance”.
It noted that other similar tribunals, including the Health Practitioners Disciplinary Tribunal, the Real Estate Agents Disciplinary Tribunal and the Lawyers and Conveyancers Disciplinary Tribunal must also be held in public.
It said because the first hearing would only be considering the panel’s jurisdiction, there would be little need to refer to the substance of the complaint or the allegations at that point.
The one-day hearing in April would therefore be public.
In releasing documents to Stuff, the panel applied similar reasoning, saying that the general court rules governing access to documents should be used as a guide.
The Judge opposed Stuff’s application to access the file, arguing those rules didn’t apply to the panel; and even if they did, Stuff’s request had not satisfied the requirements of the rules, in that it hadn’t said why it wanted the documents.
But, the panel said given the request was from a member of the media, the reason for applying could “be adequately assumed.”
The panel released two minutes, and one decision, but withheld lawyer’s submissions and the judge’s applications.
The appointment of the panel could ultimately lead to a judge being removed from office. It reports to the Attorney-General, including an opinion about whether consideration of removal of the judge was justified.
The Governor-General would formally remove a judge from office.
It is only the second time a judicial conduct panel has been appointed. The work of the first panel ended in late 2010 when the judge being investigated, Justice Bill Wilson of the Supreme Court, resigned.