Fears more judges presiding over cases of people they know

8:14 pm on 20 September 2021
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Photo: RNZ/Vinay Ranchhod

Fewer newly-appointed judges are relocating, sparking concerns the risk of bias will increase as they may end up presiding over the cases of locals they know.

By convention, new judges have relocated to a different area from where they practised as lawyers to avoid the potential conflicts of interest, or perceived bias, of presiding over cases involving former colleagues, clients or acquaintances.

The Ministry of Justice does not collect figures on how many judges relocate, or choose not to, following their appointment. It also does not have data on how many judges recuse themselves from cases each year.

But lawyers said the two issues were colliding, potentially creating issues for the administration of justice.

"In recent times I've seen a number of defence and crown prosecutors appointed to the bench in the region where they worked, which means they have former clients and colleagues appearing in front of them," barrister Nick Chisnall said.

"This increases the risk of judges being asked to recuse themselves on the basis there is a reasonable apprehension of bias, if not actual bias".

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But it was rare for a judge to agree to recuse themselves from a case and this, coupled with the lack of diversity on the bench, had the potential to create problems, lawyers told RNZ.

It comes as a bid to remove a judge who presided over a sex trial heads to the Court of Appeal.

In July, Auckland District Court Judge Kirsten Lummis declined to recuse herself from the man's trial, even though in her former role as Crown Prosecutor, she had signed his prosecution notice and acted as the trial prosecutor's supervising partner.

The man, who cannot be named for legal reasons, took his bid to the High Court, but failed.

In his decision Justice Lang said Crown solicitors were often appointed judges and it was "not uncommon for such persons to be required to preside over criminal cases in which prosecuting counsel are from the law firm at which they formerly worked. This is particularly likely to occur in metropolitan areas," he wrote.

Judges also took an oath to "discharge their duties in an impartial way", he said.

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Marie Taylor-Cyphers Photo: Supplied

The man's lawyer, Marie Taylor-Cyphers, was now applying for the case to be heard in the Court of Appeal. She feared cases like this would increasingly crop up as more judges chose to stay put.

"We used to have this practice where we appointed judges to sit outside of their hometown, for at least the first couple of years, to avoid this very issue.Then you would never get a judge sitting, firstly against lawyers that they used to practice aside and know really well."

Taylor-Cyphers said, anecdotally, high house prices appeared to be one of the reasons why new judges were reluctant to move.

"Even on a judge's salary there's a reticence to appoint people from out of Auckland to come and sit in Auckland, and people that sit in Auckland and want to preserve their house and everything else.

"It really does throw up these difficulties where you are going to come across, particularly as a prosecutor, files that you've worked on.

Chief Justice Helen Winkelmann said she was not aware of house prices putting judges off relocating, but acknowledged there was a trend of judges staying put. She said there were two main factors for the trend. Population growth in many towns and cities meant it was now less likely judges could come across people they knew in court, she said.

The wellbeing of new judges was now also more of a focus, she said. "We're asking them to take on a very stressful job, and we're asking them at the same time to uproot themselves from all their existing support networks. So we have to be mindful of that nowadays."

All judges received unconscious bias training and work was underway to recruit judges from more diverse backgrounds, Justice Winkelmann said.

This article is part of the series Is This Justice?

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