In the High Court, the chief judge demotes himself, while in the Supreme Court a judge promotes the mana of dead litigants

The Chief High Court judge’s decision to step down has triggered a question bluntly expressed in a headline on Asian Invasion 2019What The Hell Is Going On In The New Zealand Judiciary?

First, the blogger says, the judiciary was accepting debate sparked by a newly appointed Supreme Court Justice into the proposition that dead people aren’t dead for legal purposes, if tikanga is incorporated in our legal system.

Now we have Justice Geoffrey Venning – appointed Chief High Court judge in 2015 – stepping down.

To do what?

Radio NZ tells us: he is stepping down from the top role

 … to return to being a full time judge.

He has demoted himself, in other words. 

Radio NZ elaborates – just a tad – by reporting remarks by Chief Justice Winkelmann:

She said he had decided to step away from the Chief High Court judge role to refocus his energies on judging after carrying the additional and heavy administrative and leadership responsibilities for half a decade.

This tells the Asian Invasion 2019 blogger:

Something definitely is not right and good in Gotham here on the sniff test.

She notes the remarks of Chief Justice Helen Winkelmann, who said Justice Venning’s leadership and administrative abilities had defined his five years of service, during which he decided some of the country’s most important and challenging cases.

The question this raises is:

If that is the case why has Chief Justice Winkelmann let him return to the bench full time?

The blogger proceeds to further statements by the Chief Justice:

“Justice Venning’s effective leadership of the High Court, and his obvious intellectual strengths as a judge, have earned him the respect and confidence of the High Court Bench and of the profession.

“I am pleased that the judge will be able to continue to serve his community through his on-going work as a High Court judge,” Justice Winkelmann said.

The blogger asks:

If this is the case, and I am definitely not saying that it is not, then he should be promoted to the Court of Appeal, not made to go back and sit with the Intermediate School kids down the back of the assembly hall, as a High Court Judge.

She proceeds to make some observations about recent goings-on in the courts.

  • Last year three Judges were promoted to the Court of Appeal, a record number for one year.  He was not one.
  • Justice Venning has been replaced with Justice Susan Thomas.
  • The Chief District Court Judge is Judge Heemi Taumaunu.

And then she warns:

With two of the three heads of New Zealand’s higher courts now female, the writing really is on the wall for Court of Appeal President Justice Kos who was rather ridiculously overlooked for the Supreme Court recently.

According to the Courts of NZ website, judicial appointments are made by the Governor-General on the recommendation of the Attorney-General (the incumbent is David Parker).

For appointments to the Supreme Court, Court of Appeal and High Court, the Governor-General is advised by the Attorney-General who, by convention, receives advice from the Chief Justice and the Solicitor-General. For appointments to the District Court, the Governor-General is advised by the Attorney-General who receives advice from the Chief District Court Judge and the Secretary for Justice.

Although judicial appointments are made by the Executive, it is a strong constitutional convention in New Zealand that, in deciding who is to be appointed, the Attorney-General acts independently of party political considerations. Judges are appointed according to their qualifications, personal qualities, and relevant experience.

But on Parker’s watch, other attributes come into considerations.

This became ominously plain when he announced a wad of appointments in January in a press statement headed 21 new judges boost diversity, improve access to justice

Twenty-one new District Court judges have been appointed in a move that will improve access to justice and boost diversity on the bench.

[ … ]

Ten of the new judges are Māori, eight Pākehā, one Māori/Chinese and two Samoan. Twelve of the new judges are women.

 “It’s pleasing to see high quality appointees coming forward from diverse backgrounds. It is important that the judiciary reflects the make-up of the community it serves.”  

In the press statement announcing the appointment of Susan Thomas as the new Chief High Court judge, Parker also announced the appointment of Auckland barrister and solicitor Dani Lee Gardiner as an Associate Judge of the High Court. \

A post on Asian Invasion 2019 in November last year was headed New Zealand’s Highest Court Now In Total Crisis Mode.

This noted that …

Just a day after news was released that the President of the Supreme Court, Chief Justice Helen Winkelmann  used a recent speech at The Northern Club to announce that Judges needed to come from a wider variety of backgrounds, she got her wish for them then to act accordingly.

The Hon Justice Joe Williams, appointed to to the Supreme Court in May last year, had thrown  “a large hard knuckle ball” firmly at the head of the whole New Zealand legal establishment.

This would not matter if he was a lower ranked High or District Court Judge, but saving this for the Supreme Court means it has to actually be dealt with seriously.

At issue was the case to clear his name brought by Peter Ellis,  who is now dead, and an extraordinary statement by the new judge which challenged the basis of our entire legal system, rooted in our western democracy and rule of law.

But Justice Joe Williams threw a curveball into the arguments from both sides when he suggested that New Zealand didn’t need to follow decisions set in any other country, and could establish an entirely new rule based on tikanga Māori.

“There’s nothing to say that the appellant’s case dies when they do … This is a very western idea that on demise you have nothing to protect.
“If we are serious about tikanga, should New Zealand divert from that very anglo approach?” he said.

In a tikanga context … an ancestor has even more reputation to protect. There’s more tapu, more mana to protect.”

Asian Invasion 2019 prefers to replace “mana” with ego and “tapu” with sorcery and witchcraft.

One of the arguments in support of Justice Williams’ proposition is that Ellis’ mother has been affected – but every criminal could argue a weeping mother.

If this argument is allowed on an open tikanga basis, Asian Invasion 2019 mused,  Winston Peters would be able to have defamation and privacy cases pursued on his behalf from beyond his grave.

Moreover, if ancestors are responsible for the positive rights of a person, how about the negative? Once a person was dead could relatives survive as a defendant to face adverse litigation?

Williams “curveball” was reported to have generated some heated discussions across the bench, as Justices debated whether this would open the floodgates for too many cases to be brought forward, and asked for someone to find some statistics.

Asian Invasion 2019 hoped there had been a heated discussion.  There was nothing about the case of Peter Ellis that had anything to do with a Maori or their tikanga.


One thought on “In the High Court, the chief judge demotes himself, while in the Supreme Court a judge promotes the mana of dead litigants

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