More problems for Justice Wilson

Phil Kitchin writes:

A supreme court judge under investigation for not fully declaring a conflict of interest has been accused by another judge of making up a story to avoid disclosing his true financial debt to a top lawyer.

The accusation against Justice Bill Wilson, who sits in New Zealand’s highest court, was made by distinguished retired judge Sir Edmund “Ted” Thomas in a complaint to the Judicial Conduct Commissioner, Sir David Gascoigne.

Sir Edmund claimed Justice Wilson made up a “fictitious” story which Sir Edmund believed indicated Justice Wilson wanted to continue to withhold his true financial position from the Supreme Court.

Justice Wilson is at the centre of a mounting controversy about his repeated failures to fully disclose that he owed $242,000 to Alan Galbraith, QC, when he sat on Court of Appeal cases involving Mr Galbraith.

A point worth making is that the debt itself does not necessarily mean Justice Wilson was biased, or even should not have heard the case. The issue is that the debt should have been disclosed so Saxmere could decide whether or not they wanted another Judge.

Justice Wilson has in fact ruled both for and against Mr Galbraith’s clients in various recent cases. I don’t think he was biased. However as with Nixon, it is often the “cover up” rather than the original offence that does you in.

The growers later went to the Supreme Court alleging apparent bias against Justice Wilson. The court dismissed the growers’ complaint but at paragraph 25 of the judgment, Justice Blanchard effectively said the case might have turned out differently had there been evidence of Justice Wilson being beholden to Mr Galbraith by owing him money.

“However, the materials placed before the court reveal nothing of the kind. There is nothing to indicate any indebtedness,” Justice Blanchard said.

Sir Edmund’s complaint alleged Mr Galbraith said he phoned Justice Wilson after the hearing and was “astonished” to hear Justice Wilson say he was vindicated.

Sir Edmund claimed Justice Blanchard’s comments caused “considerable consternation” and Justice Wilson also told Mr Galbraith he had approached Justice Blanchard about paragraph 25 and was told the comments were only intended to apply to “on demand” debts.

“This advice was met with disbelief,” Sir Edmund’s complaint alleged.

“This story is fictitious. No such conversation with Justice Blanchard took place,” Sir Edmund told Sir David. He considered it “highly improbable” that Mr Galbraith would make such a story up.

Now this is only one side of the story, and the Judicial Conduct Commissioner should complete his work. I think calls for resignation are premature, and should not be based on newspaper stories.

However if the allegations, as reported, are correct they pose a severe challenge to Justice Wilson’s ability to continue. There is a considerable difference between an accidental non disclosure, and a deliberate one.

If the Judicial Conduct Commissioner finds that “an inquiry into the alleged conduct is necessary or justified” and “if established, the conduct may warrant consideration of removal of the Judge”, then a Judicial Conduct Panel will be established.

Any such panel will have three members – two judicial/legal and one lay. Its hearings will be in public, and will not be a lot different from a public trial. It is hard to imagine a Judge would go through such a public process, rather than resign if a panel is formed.

If the panel recommends dismissal, then the decision goes to the Attorney-General. He can not decide to dismiss, if the panel does not recommend it, but he can decide not to dismiss, if they do so recommend.

If the AG did decide to support dismissal, it would require a motion in Parliament asking to the Governor-General to do so.