A terrible decision by the Judicial Conduct Commissioner

Stuff reports:

Two senior judges did not act inappropriately when contacting a Family Court judge in relation to a part-heard case, the Judicial Conduct Commissioner has found, but he said that guidelines for judges could be made clearer.

Commissioner Alan Ritchie decided to investigate after reading an article on Stuff on August 25, which revealed that Judge Peter Callinicos had been contacted by Chief District Court Judge Heemi Taumaunu and Principal Family Court Judge Jackie Moran in relation to the part-heard “Moana” case.

Judge Callinicos said the senior judges had wanted to convey concerns from Oranga Tamariki interim chief executive Sir Wira Gardiner. He said their actions were inappropriate and any communication would be “a breach of judicial independence”.

A government agency involved in a court case secretly complains about the Judge to the two bench heads and they approach the Judge while case is still live – hard to think of a more open and shut case of breaching judicial independence.

In a preliminary report issued on Wednesday, Ritchie said he decided to treat the media coverage as a complaint due to “the perception I have of a growing and wide-ranging concern felt (rightly or wrongly) by parties to proceedings, complainants and others in the community about challenges being faced by women and children in the Court system”.

This implies there were no formal complaints, which is false. Lawyer Tony Ellis complained, and I believe others did also.

The commissioner sought comment from Judges Taumaunu and Moran. Judge Taumaunu denied any attempt to direct Judge Callinicos and said he and Judge Moran wanted to engage with Judge Callinicos about their concerns over his “in-court conduct”, not his decision-making.

Here’s the incredible thing. The JCC never interviewed or sought comment from Judge Callinicos. This is the Judge who said he regarded the approaches as inappropriate and a breach of judicial independence. And the JCC did not even talk to him. He just talked to the two bench heads. I’m sorry, but that destroys any credibility in my eyes.

And the suggestion it was only about his in-court conduct is risible, as if so they could raise that after the case was decided. But they intervened while the case was live.

Judge Moran said there had been numerous complaints about Judge Callinicos and “they had to be addressed promptly by the Heads of Bench in order to prevent their recurrence and to maintain public confidence in the Court”.

She said she held monthly meetings with senior Oranga Tamariki staff and those meetings frequently involved discussion about difficulties the organisation’s Napier office was experiencing with Judge Callinicos.

So now they make Judge Callinicos to be the person at fault. They cite numerous complaints but were all of these from Oranga Tamariki? Why does a government agency get to have secret meetings with the heads of bench?

There is a well established procedure for raising concerns about Judges – the lawyer takes it to the local law society who takes it to the NZ Law Society President who raises it with the head of bench. In this case OT was communicating directly while the case was active.

Judge Moran said Oranga Tamariki believed Judge Callinicos’s alleged behaviour was “seriously undermining the confidence of the Napier community and compromising the safety of children”.

This was especially so in the “Moana” case, she said. Three social workers involved in the case “were so badly treated by the judge that they were left feeling mocked and beaten to the extent that psychological support had to be organised for them,” she said.

Actually the problem seemed to be the OT staff lied to the court and were found out. They were held accountable for their terrible behaviour. I’ve read his judgement and here are some extracts:

It is apparent from the evidence that, unbeknown to the caregivers, Moana’s lawyer and the Court, certain Ministry personnel had been planning to retract from the purported permanent placement of Moana with the Smith’s and instead place her with Ari’s caregivers. The evidence in support of this being a clandestine strategy is both strong and concerning. It does not put the actions of the Chief Executive in a good light. …

The evidence demonstrates how Ms Martin operated simultaneously in two worlds; what she said or wrote to persons external to the Ministry, and what she communicated internally of it. The external and internal communications were often polar opposites. …

The evidence of most of the Ministry’s witnesses left the impression that they have lost sight of the importance of review documents, almost as if they were a mere tick box or perfunctory exercise, rather than carrying any real purpose. The evidence of some social workers around their lack of awareness of what was contained in the statutory reports was concerning. It was of such level that it supported a conclusion that the social workers did not place much stock in the importance of these fundamental documents. …

Judge Harrison recorded her concerns as to what she called the “untruthful, unprofessional…and emotionally abusive” statements made by one social worker.

I have no doubt OT staff do not like appearing before Judge Callinicos. But that is their fault, not his.

Complaints about Judge Callinicos’s behaviour in the ‘Mrs P’ case were dealt with by the Commission in June. Ritchie declined to refer the matter to the Attorney-General and instead referred it to the heads of the High Court and District Court, stating it was up to them what they wished to do.

Judge Callinicos told Stuff he had not been approached by the commissioner.

“If the Judicial Conduct Commissioner was investigating a complaint in which I was a participant, but not the subject of, then in the absence of some extraordinary reason, I would have thought that I would have been invited to make input,” he said on Wednesday night.

This is the most incredible aspect. Judge Callinicos was never interviewed or approached by the Commissioner. This is farcical.