5 Oct 2021

Top lawyer complains over Judge Callinicos saga

5:48 pm on 5 October 2021

A top human rights lawyer has accused the Judicial Conduct Commissioner of creating a scandal that has implicated highly ranked judges.

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Judge Peter Callinicos Photo: The District Court of New Zealand

It comes as a police complaint is laid against two Supreme Court justices, two senior judges and the former Acting Oranga Tamariki chief executive, alleging they perverted the course of justice in relation to the 'Moana' case being heard by Judge Peter Callinicos.

Judicial Conduct Commissioner (JCC) Alan Ritchie launched an investigation after a media report revealed Judge Callinicos had been contacted by Chief District Court Judge Heemi Taumaunu and Principal Family Court Judge Jackie Moran while the case was still being heard.

Judge Callinicos was presiding over the Family Court case in Napier, which involved Oranga Tamariki staff wanting to remove a Māori girl, referred to as Moana, from the custody of a Pakeha couple.

Oranga Tamariki's former acting chief Eexecutive Sir Wira Gardiner contacted the Chief District Court Judge and the Principal Family Court Judge with concerns about the way Judge Callinicos had questioned Oranga Tamariki staff, alleging his bullying behaviour had left his staff distressed. It was then that Judges Taumaunu and Moran contacted Judge Callinicos.

In its preliminary report, seen by RNZ, the JCC found Judge Taumaunu and Judge Moran did not act inappropriately. Ritchie referred the matter to the Chief Justice to deal with and suggested judicial guidelines be reviewed and improved in regards to intervention by Heads of Bench when proceedings had not been completed. Ritchie did not seek comment from Judge Callinicos in his investigations.

Tony Ellis

Tony Ellis has filed a new complaint Photo: RNZ / Kim Baker Wilson

RNZ can now reveal that yesterday human rights lawyer Tony Ellis filed a new complaint, having already previously raised concerns. His new complaint against Chief Justice Helen Winkelmann and Justice William Young alleged they did not disclose to Judge Callinicos's lawyers that they had been involved in behind the scene discussions and Justice Young had made his own conclusions about Judge Callinicos's behaviour without giving him a chance to comment.

Ellis also asked Ritchie to recuse himself from hearing his new complaint because his decision to refer his previous complaint to Justice Winklemann "irrevocably compromised" his independence.

"I was more than surprised with your decision, which I consider irrevocably compromised your own independence," Ellis wrote.

He said Judge Callinicos sought assistance from the Chief Justice to protect his independence from the influence he believed was being "improperly" placed on him by Judge Taumaunu and Judge Moran.

Documents seen by RNZ show Justice Young concluded "there was an apparent pattern of bullying".

Ellis' complaint said: "Justice William Young, in reaching a conclusion that Judge Callinicos had made comments that were disproportionate and inappropriate, made gratuitous criticisms, and engaged in what appears to be bullying, following an investigation which did not seek input from Judge Callinicos, and taking no action to seek such input himself, this undermined judicial independence."

Ellis believed the Chief Justice's concurrence compounded the error.

He asked Ritchie to recuse himself. "As these complaints relate to a decision you have made, and a process you have followed, I begin by addressing your need to recuse yourself from considering this complaint," Ellis said.

Ritchie's approach had created a "scandal" implicating not only Judge Taumaunu and Judge Moran but also the Chief Justice and Justice William Young, the second highest ranking Supreme Court judge, Ellis said.

"If my original complaint warranted referral to the Chief Justice as you referred it, this complaint is of a different and greater magnitude on the issue of judicial independence, and is of profound constitutional importance."

Judge Callinicos and his lawyer have been approached for comment.

Justice Winkelmann, Justice Young, Judge Moran and Judge Taumaunu told RNZ they were not able to comment on Ellis' complaint given it was before the JCC.

The JCC was also approached for comment.

Police complaint

Meanwhile, former lawyer Frank Deliu wrote to Police Commissioner Andrew Coster on 27 August asking him to investigate Judges Taumaunu and Moran for perverting the course of justice by trying to influence Judge Callinicos on a case that was pending before him.

In a further complaint, laid today, he asked the police to also investigate the actions of Sir Wira Gardiner, Justice Winklemann and Justice Young in the matter. "Ex parte meetings with judges to discuss issues in a case are per se inappropriate and to attempt such a channel as a means of addressing a Judge's decision, i.e., to make a law society complaint, clearly strays into criminal conduct," Deliu wrote.

There was also no legal authority for Justice Young or Justice Winkelmann to also get involved, he said. "The Supreme Court has made clear in Attorney-General v Chapman [2012] that the two proper processes to follow about concerns about a Judge's decisions are to either appeal to a superior court or complain about them to the Office of the Judicial Conduct Commissioner. It is not vital to a perversion charge that an actor be breaking a separate law, but it is relevant if an actor is acting outside of their legal powers."

Deliu, who left New Zealand before being charged with perverting the course of justice for allegedly intimidating two witnesses, said the same rule of law that applied to him should also apply to the judiciary. "When two judges try and influence a case, well, then that also has to be a crime. And then when two more judges try to protect those two judges, well, then that also has to be a crime."

The Police said they were unable to comment.

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