Annual Reports

The Judicial Conduct Commissioner Annual Reports.

Annual Report for 2016/2017

Download the Annual Report 2016/17 (PDF, 84Kb)


Annual Report for 2015/2016

Download the Annual Report 2015/16 (PDF, 90Kb)

Presented to the House of Representatives pursuant to Clause 9(2), Schedule 2 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

Annual Report of the Judicial Conduct Commissioner for the year ended 31 July 2016

Introduction

  1. References in this report to the Act, Schedule, sections or clauses relate to the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.
  2. Clause 9(1) of Schedule 2 requires the Commissioner in each year to provide to the Attorney-General a report on the exercise of the functions under the Act.
  3. The functions are set out in section 8. They are:
    • to receive complaints about Judges and to deal with the complaints in the manner required by the Act
    • to conduct preliminary examinations of complaints
    • in appropriate cases, to recommend that a Judicial Conduct Panel be appointed to inquire into any matter or matters concerning the conduct of a Judge.

Complaints statistics

  1. Received: 355 being 42 more (14%) than for the year to 31 July 2015
  2. Examined: 389 being 79 more (25%) than for the year to 31 July 2015
  3. Unfinalised: 64 being 34 fewer (53%) than for the year to 31 July 2015
  4. Referrals to Heads of Bench: 6 being 4 more (66%) than for the year to 31 July 2015
  5. Recommendations for appointment of a Judicial Conduct Panel: No recommendations have been made. Since the commencement of the Act on 1 August 2005 there has been only one recommendation. That was in the year ended 31 July 2010.

Complaints table

Five-year comparison of complaints receipt, examination and outcome

Complaint particulars 2015-16 2014-15 2013-14 2012-13 2011-12
Number of complaints received 355 313 235 258 328
Number of unfinalised complaints from previous year 98 95 79 97 146
Total 453 408 314 355 474
Outcomes          
Decision to take no further action under Section 15A 42 33 25 62 95
Complaints dismissed under section 16 336 267 184 196 269
Complaints referred to Head of Bench under Section 17 6 2 4 7 6
Complaints referred to Head of Bench at outset because of conflict of interests under Section 8B 0 4 0 1 2
Recommendation that a Judicial Conduct Panel be appointed under Section 18 0 0 0 0 0
Complaints withdrawn 5 4 6 10 5
Total complaints dealt with 389 310 219 276 377
Number of complaints unfinalised at 31 July 64 98 95 79 97
Total 453 408 314 355 474

Complaints illustrations

  1. Complaints received chart of the Complaints received.

  2. Complaints examined chart of the Complaints examined.

  3. Outcome chart of the Outcome.

Complaints received – Court by Court

2015-16

2014-15

2013-14

2012-13

2011-12

Supreme Court

221

177

67

34

62

Court of Appeal

5

16

21

46

49

High Court

32

45

62

65

86

District Courts

49

52

53

67

71

Family Courts

43

16

24

30

52

Youth Courts

0

0

0

0

0

Environment Court

1

0

5

4

2

Employment Court

1

0

1

4

0

Maori Land Court

0

2

0

5

1

Court Martial

0

0

0

0

0

Coroners

3

5

2

3

5

Total

355

313

235

258

328

  1. That creates no difficulty when a person makes a complaint about a single Judge sitting, for example, in a District Court. The position is different when a person complains about several Judges comprising a panel of Judges at an appellate level as in the case of the Supreme Court.
  2. Of the total of 355 complaints about individual Judges, the number of actual complaints was 187. However, the 221 complaints shown as having been made about Supreme Court Judges came from only 13 individuals of whom some have been declared vexatious litigants. It may also be reasonable to conclude that many of the complaints about Supreme Court Judges are driven by it being the final appellate Court.

The nature of complaints

  1. As has been the pattern over the years, the conduct asserted by complainants covers a wide range including corruption, prejudice, bias, discourtesy, incapacity and incompetence.
  2. Most commonly, however, no substance is provided in support of such allegations and what often becomes clear on examination is a complainant’s simple disagreement with a Judge’s decision. Sometimes complainants are quite open about choosing to make a complaint to the Commissioner rather than pursuing an appeal or an application for judicial review. It is unsurprising, therefore, that large numbers of complaints are dismissed because they seek to have the Commissioner act contrary to section 8(2) by challenging or calling into question the legality or correctness of a judicial decision.
  3. It is not inevitably the case, however, that a complainant’s disagreement with a decision or the existence of rights of appeal or review will preclude the Commissioner from finding issues of conduct warranting intervention as the six referrals to Heads of Bench will attest.

Referrals to Heads of Bench

  1. As mentioned, there have been six referrals. Of those, five were to the Chief District Court Judge and one to the Principal Family Court Judge. It follows that there were no referrals to the Chief Justice, the President of the Court of Appeal or any other Head of Bench.
  2. Reasons for the six referrals can be summarised as follows:
    1. A failure by a District Court Judge to adhere to appropriate standards of courtesy, patience and tolerance and a failure to treat a person appearing in the Court in a way which respected that person’s dignity.
    2. Behaviour inconsistent with the status of judicial office or which diminished the public’s confidence in the Judge’s integrity, impartiality or independence.
    3. A question mark over certain circumstances affecting a Judge leading to a suggestion that the Head of Bench should remind the particular Judge and Judges generally of the special duties they all have in the maintenance of public confidence in the judiciary.
    4. Apparent overbearing and intimidating conduct toward a litigant.
    5. Unfairness in comments to a jury in a District Court trial.
    6. Behaviour falling short of the expectation of courtesy, respect and moderation.

Contact with the judiciary

  1. The Commissioner and Deputy Commissioner are required or authorised by the Act to have contact with Judges for various purposes. These include notifying Judges of complaints, seeking responses and advising them of decisions. There is also contact with Heads of Bench as necessary.
  2. The contact has been in writing. There has been no need for any face-to-face or telephone communication about any complaint. The response of Judges, whether those complained about or Heads of Bench, has been consistently helpful and constructive.

Commissioners and Deputy Commissioners

  1. Until 31 August 2015, the Commissioner’s functions were exercised by Sir David Gascoigne with Alan Ritchie as his Deputy. Tribute must be made to Sir David not only in regard to his exemplary service over the period of six years he spent in the role but for the support unstintingly offered at all times to the Deputy Commissioner and during the hand-over of duties.
  2. Since 31 August 2015, the functions have been exercised by Alan Ritchie and by his Deputy, Kathryn Snook. Ms Snook has willingly and ably attended to several complaints referred to her in accordance with section 8B.

Administrative support

  1. At times in earlier years, concern has been expressed over discharging a heavy workload with limited resources. There are regular meetings with the Secretary for Justice whose understanding of the situation has been appreciated. The position has been eased and the workflow is handled without undue backlog aided significantly by the administrative management and personnel provided by the Ministry of Justice.


Alan Ritchie
Judicial Conduct Commissioner
16 August 2016


Annual Report for 2014/2015

Download the Annual Report 2014/15 (PDF, 516Kb)

Presented to the House of Representatives pursuant to Clause 9(2), Schedule 2 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

Contents

Annual Report of the Judicial Conduct Commissioner for the year ended 31 July 2015

This report

  1. This is the tenth Annual Report since the first Commissioner took office on 1 August 2005, that being the date on which the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the “Act”) came into effect.

The Commissioner and Deputy Commissioner

  1. The current Commissioner is Sir David Gascoigne. He took office on 3 August 2009. His term of office expired on 2 August 2014 but continues under carry-over provisions in the Act. It will come to an end on 30 August 2015.
  2. The new Commissioner will be Alan Ritchie. He will take office on 31 August 2015. Mr Ritchie is currently the Deputy Commissioner. He was appointed to that position on 30 June 2011.
  3. The new Deputy Commissioner will be Kathryn Snook. She will also take office on 31 August 2015.
  4. The Deputy’s role was until recently, to deal with complaints where the Commissioner has a conflict of interest, or where the Commissioner is absent or incapacitated, or where there is a vacancy in the office of Commissioner. A recent change to legislation now gives the Deputy Commissioner the same jurisdiction to examine complaints as the Commissioner.

The complaint process

  1. The Commissioner’s role under the Act is to receive, assess and categorise complaints about the conduct of Judges.
  2. The procedure generally adopted by the Commissioner, following the receipt of a complaint about the conduct of a Judge, is to notify the Judge of the complaint, and, where appropriate, to seek any comment which the Judge may wish to make. The Commissioner can obtain any Court documents, including transcripts of hearings, and can listen to any audio recordings. The Commissioner may also make such other inquiries as the Commissioner considers appropriate.
  3. In carrying out his or her functions, the Commissioner must act independently, and must also act in accordance with the principles of natural justice.
  4. Once the Commissioner has completed a preliminary examination of a complaint, the Commissioner must select and apply one of the four courses of action, as set down in the Act:
    1. the Commissioner may exercise the power to take no further action in respect of the complaint (under section 15A); or
    2. the Commissioner may (under section 16) dismiss the complaint on one of the nine grounds specified in that section; or
    3. the Commissioner may (under section 17) refer the complaint to the Head of Bench, that is, to the Head of the particular Court on which the Judge who is the subject of the complaint sits; or
    4. the Commissioner may (under section 18) recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire further into any matters concerning the conduct of a Judge, if the Commissioner is of the opinion that:
      1. such an inquiry is necessary or justified; and
      2. if established, the conduct may warrant consideration of the removal of the Judge.
  5. An illustration of the process is shown in the overview diagram.
  6. The process, as briefly described above, but more particularly set out in the Act, is intended to serve the purpose of the Act.

    The purpose of the Act, as set out in section 4, is to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system by:
    1. providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office;
    2. establishing an office for the receipt and assessment of complaints about the conduct of Judges;
    3. providing a fair process that recognises and protects the requirements of judicial independence and natural justice.

Advice to the public

  1. The Commissioner provides advice to the public about the complaint process through:
    • A website which describes the complaint process and provides downloadable forms and guidance sheets.
    • A brochure entitled “Complaints about Judicial Conduct”.
    • Responding to telephone, postal or emailed inquiries.

Complaints received

  1. The following Table A shows the statistics for complaints received by the Commissioner for the five years from 1 August 2010 to 31 July 2015:
Complaint particulars 2014-15 2013-14 2012-13 2011-12 2010-11
Number of complaints received 313 235 258 328 181
Number of unfinalised complaints from previous year 95 79 97 146 138
Total 408 314 355 474 319
Outcomes          
Decision to take no further action under Section 15A 33 25 62 95 20
Complaints dismissed under section 16 267 184 196 269 140
Complaints referred to Head of Bench under Section 17 2 4 7 6 4
Complaints referred to Head of Bench at outset because of conflict of interests under Section 8B 4 0 1 2 0
Recommendation that a Judicial Conduct Panel be appointed under Section 18 0 0 0 0 0
Complaints withdrawn 4 6 10 5 9
Total complaints dealt with 310 219 276 377 173
Number of complaints unfinalised at 31 July 98 95 79 97 146
Total 408 314 355 474 319
  1. 1The principal features of that Table A are these:
    1. The total number of complaints was 408; that is 94 more (or 30% more) than the previous year.
    2. The total number of complaints dealt with is 310; that is 91 more (or 42% more) than the previous year.
    3. The total number of complaints unfinalised is 98; that is 3 more (or 3% more) than the previous year.
  2. The following Table B shows the number of complaints received, on a Court by Court basis:
Courts 2014-15 2013-14 2012-13 2011-12 2010-11
Supreme Court 177 67 34 62 16
Court of Appeal 16 21 46 49 28
High Court 45 62 65 86 63
District Court 52 53 67 71 49
Family Court 16 24 30 52 19
Youth Court 0 0 0 0 0
Environment Court 0 5 4 2 1
Employment Court 0 1 4 0 2
Maori Land Court 2 0 5 1 2
Court Martial 0 0 0 0 0
Coroners Court 5 2 3 5 1
Total 313 235 258 328 181
  1. That Table B requires some elaboration:
    1. Section 11(1) of the Act requires the Commissioner to “... deal with every complaint made under this section about the conduct of a Judge ...”

      Thus, the focus is upon the number of Judges complained about, rather than the number of complaints.
    2. During the past reporting year, the total number of complaints about individual Judges was 313. The number of actual complaints was 168. In other words, some complainants made complaints about more than one Judge.
    3. That way of reporting, while factually and numerically accurate, can convey a misleading impression, especially so far as the Supreme Court and (to a lesser extent) the Court of Appeal are concerned.
    4. The point is best illustrated by an example. If three separate complainants each lodge two comparable complaints in respect of all five Judges of the Supreme Court, then that represents six complaints naming 30 Judges in total.
    5. Many variations on that simple example exist in practice. The issue of multiple and serial complaints is referred to in paragraphs 30 to 32 of this report.
  2. The following Table C shows a summarised year-on-year comparison between the past year (to 31 July 2015) and the previous year (to 31 July 2014). It also shows the increase or decrease in numbers, year-on-year.

Complaint particulars Full year to 31 July 2015 Prior year to 31 July 2014 Full year comparison for 2013-14 and 2014-15 increase/(decrease)
      No. %
Complaints received during year 313 235 78 33%
Unfinalised complaints from previous year 95 79 16 20%
Total 408 314 94 30%
         
Total dealt with and completed during year 310 219 91 42%
Total unfinished at year’s end 98 95 3 3%

Total

408 314 94 30%

Decisions made

  1. During the year from 1 August 2014 to 31 July 2015, the Commissioner and, in some instances, the Deputy Commissioner have made the following decisions:
    1. No further action: They decided to take no further action in respect of 33 complaints. This was done using the power conferred by Section 15A of the Act.
    2. Dismissal: They dismissed 267 complaints during the year upon one or more of the grounds set out in section 16(1) of the Act.

      The most common ground for the dismissal of complaints was where, essentially, the complainant called into question the validity of a decision made by a Judge. Section 8(2) of the Act provides that it is not a function of the Commissioner to challenge or call into question the legality or correctness of any judgment or other decision made by a Judge in relation to any legal proceedings. The proper avenue for that is by way of appeal or application for judicial review. The Commissioner’s jurisdiction extends to issues of judicial conduct and not to judicial decisions as such.

      Generally, the statutory grounds for the dismissal of complaints were varied and included these:
      1. that the complaint fell outside the Commissioner’s jurisdiction (most notably where section 8(2) of the Act had effect);
      2. that the complaint had no bearing on judicial functions;
      3. that the complaint was frivolous, vexatious or not in good faith;
      4. that complaint was about a judicial decision that is or was subject to a right of appeal or right to apply for judicial review;
      5. that the person who was the subject of the complaint was no longer a Judge;
      6. that the Commissioner had previously considered the subject matter of the complaint and the complaint fails to raise any significant issue not already considered.
    3. Reference to Head of Bench: They referred six complaints to the relevant Heads of Bench, two pursuant to section 17(1) and four pursuant to section 8B(3) of the Act (where the Commissioner and Deputy have conflicts of interest). It is then for the Head of Bench to determine how best to deal with matters, administratively, so far as the Judge complained of is concerned.
    4. Recommendation as to a Judicial Conduct Panel: No recommendation was made in the past year, pursuant to section 18(1) of the Act, that a Judicial Conduct Panel be appointed to inquire into matters concerning the alleged conduct of a Judge.
    5. Withdrawal: Four complaints were withdrawn by the respective complainants, generally following consideration of material provided by the Commissioner during the course of the preliminary examination.
  2. Complaints have been based on a variety of grounds. By far the most common was that the person who was aggrieved considered that a decision, ruling or order of a Judge was simply (or grossly) wrong. As indicated in paragraph 18(b) above, a complaint on that basis falls outside the Commissioner’s jurisdiction – and must be dismissed for that reason. Other grounds specified in complaints included: perceptions of rudeness, unfairness, inappropriate remarks, failure to listen, failure to take note of relevant material, prejudice, bias, predetermination, conflicts of interest and corruption. (Depending upon the circumstances, not all of those will fall within the Commissioner’s jurisdiction.)
  3. The mention of corruption, in particular, again merits some explanation. In some instances, a complainant has alleged that a Judge has been corrupt. The Commissioner and Deputy Commissioner take such an allegation especially seriously. But their investigations have revealed nothing that even hints at corruption. Some complainants do, however, conclude that the fact that a Judge disagrees with their (to them) self-evidently logical contentions must, in itself, be clear evidence that there has been corruption at work. But in no instance, so far, has any supporting information been proffered - or revealed, upon examination - to support the assertion.

Responses of the Judiciary

  1. The Commissioner is pleased to report that, overall, Judges about whom complaints have been made have, as previously, responded in a constructive and helpful manner. Many Judges go to some lengths to provide material that helps to explain the circumstances and context from which a complaint has arisen. This materially assists the Commissioner in the examination of complaints and is appreciated by the Commissioner.
  2. There were, again as previously, a few instances in which a Judge might have been expected to be more forthcoming in providing some information about the background to the complaint. It does help to have a reasonably explicit balance of views to consider.
  3. The accessibility of audio recordings of court proceedings has improved markedly over the past year. This has assisted the Commissioner to examine some complaints in a more timely manner than in the past. An audio recording can also provide useful information as to the tone and manner of those involved.

Comparative statistics

  1. Table C (paragraph 17 above) provides a brief comparison of the number of complaints and the extent to which they were dealt with, as between:
    1. this reporting year (to 31 July 2015); and
    2. the previous reporting year (to 31 July 2014).
  2. These points emerge:
    1. there were 78 more new complaints received this year than there were last year (making a total of 313 for this year). That is an increase of 33%;
    2. there were 91 more complaints finalised this year than last year (making a total of 310 for this year). That is an increase of 42%;
    3. the number of unfinalised complaints this year was 98, an increase of 3 on last year’s figure of 95.
  3. Thus, although the number of new complaints received during the past year was significantly greater than for the previous year, the number of unfinalised complaints increased only marginally.
  4. That figure of 98 is still higher than is desirable. It is hard to say what an optimum figure should be. There will always be complaints in the course of examination. Time must be allowed for processing them, for Judges to respond, for (sometimes) Judges’ decisions and the transcripts or audio recordings to be obtained and studied, for (sometimes) the views of others to be sought, and for decisions to be considered, written and then dispatched.

Complexity and frequency

  1. It is also the case that many complaints are becoming increasingly complex and detailed. A greater number now require more time to be spent in investigating them, considering them, and evolving a decision. Many decisions require significant elaboration (the longest, so far, covered 45 pages plus attachments).
  2. In addition, in order to obtain a clearer picture of what has transpired in a courtroom, it is often very helpful to listen to the audio recording of a hearing. That takes time. But it seems increasingly necessary to do that, so as to be fair both to the complainant and to the Judge. An audio recording frequently discloses relevant information about the tone and temper of the exchanges that took place that is not at all apparent from a transcript.
  3. A significant proportion of all complaints come from a comparatively small number of dissatisfied litigants who make repeated complaints when they receive judicial decisions which they do not accept. The complaints are generally expressed as raising issues of conduct on the part of the Judge or Judges concerned. Closer examination, however, often reveals that they are, essentially, challenging the correctness of judicial decisions – and are thus beyond the Commissioner’s jurisdiction. Nonetheless, it is important to approach and examine each complaint received impartially, on the premise that it may prove to be well founded.
  4. A comparatively recent development is that a number of those dissatisfied litigants now act in concert in making complaints about Judges. The complaints are made separately, though they are thematically linked.
  5. A significant proportion of the complaints just mentioned are made by individuals who have been declared by the Court to be vexatious litigants – and sometimes by supporters of those individuals. The complaints often arise from unsuccessful applications to the Supreme Court to appeal against decisions of the Court of Appeal or unsuccessful applications for the recall of previous decisions of the Supreme Court. The growth in the number of those unsuccessful applications helps, to a significant degree, to explain the comparatively large number of complaints then made against the Judges of the Supreme Court in the past year (see paragraph 16 above).

Litigation

  1. As a separate but often related issue, some complainants, who are dissatisfied with the decision made by the Commissioner in respect of their complaint, then initiate legal proceedings against the Commissioner, by way of judicial review, in an attempt to have the decision overturned or remitted for reconsideration.
  2. That is, of course, their right – as it is also the Commissioner’s duty to defend such proceedings where it is incorrectly alleged that the Commissioner or the Deputy has acted unlawfully.
  3. The point, for the purpose of this report, however, is to note that attending to these litigious efforts requires a good deal of time and attention, as well as incurring attendant legal fees.

Administrative support

  1. The Ministry of Justice is the authority that is responsible for the provision of administrative support. It currently makes available – on a part-time basis – the services of four highly talented people, with different skills. It also provides premises and equipment. These administrative arrangements do assist with the burden of work. It remains the case, however, that I, as Commissioner, and on occasions Mr Ritchie, as Deputy Commissioner, still remain under significant pressure.

Legislative changes

  1. On 26 March this year the Judicial Conduct Commissioner and Judicial Conduct Panel Amendment Act 2015 came into force. It made two small but useful changes. The first is to allow the Commissioner a broader basis for referring a complaint to the Deputy Commissioner. The second allows the Commissioner or Deputy Commissioner to dismiss a complaint if it fails to raise any issue of significance that he or she has not previously considered.
  2. As mentioned in the previous report, the principal Act does contain some internal contradictions. These generally affect the approach and scope of activity that the Commissioner should undertake in carrying out his or her responsibilities under the Act. For example, the Commissioner is required by the Act to conduct “preliminary examinations” of complaints. This suggests something of a fast and almost cursory nature. By contrast, though, the Commissioner is also required to specify the “grounds” or “reasons” for each decision. And those should, desirably, be sufficiently well researched and robustly expressed to be able to withstand the frequent applications for judicial review that are made.
  3. Another issue concerns the extent to which the Commissioner is required to maintain confidentiality. There is a limited exemption from that duty stated in section 19 of the Act, but there is some basis for suggesting that it is overly restrictive and that some cautious relaxation of the general duty may assist in a better understanding of both the purpose and the operations of the Act – without impinging upon the right to privacy.
  4. Nonetheless, the Act has been in force for ten years now, and a review of its structure and the suitability of its principal provisions could usefully be carried out.

Final comments

  1. My colleagues and I express the hope that in the coming year it will be possible to record a reduction (towards the indefinable optimum) in the number of unfinalised complaints. Such a reduction is not an end in itself. Its purpose is to improve the efficiency of operations, in order to reduce the time between complaints being lodged and decisions being completed. And that helps serve the objectives of the Act.
  2. This is the final report that I will be presenting. I wish to express my gratitude to:
    • The Attorney-General, for offering me the opportunity to serve as Commissioner;
    • the Deputy Commissioner;
    • the personnel provided by the Ministry to work with me;
    • the counsel who represent me in the conduct of litigation; and
    • all others who have assisted me, in many ways, throughout the past six years.

21 August 2015

David Gascoigne.

Sir David Gascoigne, KNZM, CBE
Judicial Conduct Commissioner

Overview of process for Judicial Conduct Commissioner and Judicial Conduct Panel

Flow chart of the process for Judicial Conduct Commissioner and Judicial Conduct Panel.

Judicial Conduct Commissioner or Commissioner includes a Deputy Judicial Conduct Commissioner carrying out the Commissioner's functions when the Commissioner has a conflict of interest, is absent from office, or is incapacitated, and during a vacancy in the office of Commissioner.


Annual Report for 2013/2014

Download the Annual Report 2013/14 (PDF, 516Kb)

Presented to the House of Representatives pursuant to Clause 9(2), Schedule 2 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

Contents

Annual Report of the Judicial Conduct Commissioner for the year ended 31 July 2014

This report

  1. This is the ninth Annual Report since the first Commissioner took office on 1 August 2005, being the date on which the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the "Act") came into effect.

The Commissioner and Deputy Commissioner

  1. The current Commissioner is Sir David Gascoigne. He took office on 3 August 2009. His term of office expired on 2 August 2014 but continues under carry-over provisions in the Act.
  2. The current Deputy Commissioner is Alan Ritchie. He took office on 30 June 2011. The Deputy's role is to deal with complaints where the Commissioner has a conflict of interest, or where the Commissioner is absent or incapacitated, or where there is a vacancy in the office of Commissioner.

The complaint process

  1. The Commissioner's role under the Act is to receive, assess and categorise complaints about the conduct of Judges.
  2. The procedure generally adopted by the Commissioner, following the receipt of a complaint about the conduct of a Judge, is to notify the Judge of the complaint, and, where appropriate, to seek any comment which the Judge may wish to make. The Commissioner can obtain any Court documents, including transcripts of hearings, and can listen to any audio recordings. The Commissioner may also make such other inquiries as the Commissioner considers appropriate.
  3. In carrying out his or her functions, the Commissioner must act independently, and must also act in accordance with the principles of natural justice.
  4. Once the Commissioner has completed a preliminary examination of a complaint, the Commissioner must select and apply one of the four courses of action, as set down in the Act:
    1. the Commissioner may exercise the power to take no further action in respect of the complaint (under section 15A); or
    2. the Commissioner may (under section 16) dismiss the complaint on one of the nine grounds specified in that section; or
    3. the Commissioner may (under section 17) refer the complaint to the Head of Bench, that is, to the Head of the particular Court on which the Judge who is the subject of the complaint sits; or
    4. the Commissioner may (under section 18) recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire further into any matters concerning the conduct of a Judge, if the Commissioner is of the opinion that:
      1. such an inquiry is necessary or justified; and
      2. if established, the conduct may warrant consideration of the removal of the Judge.
  5. An illustration of the process is shown in the overview diagram.
  6. The process, as briefly described above, but more particularly set out in the Act, is intended to serve the purpose of the Act.

    The purpose of the Act, as set out in section 4, is to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system by:
    1. providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office;
    2. establishing an office for the receipt and assessment of complaints about the conduct of Judges;
    3. providing a fair process that recognises and protects the requirements of judicial independence and natural justice.

Advice to the public

  1. The Commissioner provides advice to the public about the complaint process through:
    • A website which describes the complaint process and provides downloadable forms and guidance sheets.
    • A brochure entitled "Complaints about Judicial Conduct".
    • Responding to telephone, faxed, emailed or postal inquiries.

Complaints received

  1. The following Table A shows the statistics for complaints received by the Commissioner for the five years from 1 August 2009 to 31 July 2014:

Complaint particulars

2013-14

2012-13

2011-12

2010-11

2009-10

Number of complaints received

235

258

328

181

223

Number of unfinalised complaints from previous year

79

97

146

138

63

Total

314

355

474

319

286

Outcomes

Decision to take no further action under Section 15A

25

62

95

20

2

Complaints dismissed under section 16

184

196

269

140

125

Complaints referred to Head of Bench under Section 17

4

7

6

4

3

Complaints referred to Head of Bench at outset with consent of complainant because of conflict of interests or under Section 8B

0

1

2

0

1

Recommendation that a Judicial Conduct Panel be appointed under Section 18

0

0

0

0

3

Complaints withdrawn

6

10

5

9

14

Total complaints dealt with

219

276

377

173

148

Number of complaints unfinalised at 31 July

95

79

97

146

138

Total

314

355

474

319

286

  1. The following Table B shows the number of complaints received, on a Court by Court basis:

Courts

2013-14

2012-13

2011-12

2010-11

2009-10

Supreme Court

67

34

62

16

25

Court of Appeal

21

46

49

28

23

High Court

62

65

86

63

72

District Court

53

67

71

49

62

Family Court

24

30

52

19

29

Youth Court

0

0

0

0

0

Environment Court

5

4

2

1

5

Employment Court

1

4

0

2

2

Maori Land Court

0

5

1

2

2

Court Martial

0

0

0

0

0

Coroners Court

2

3

5

1

3

Total

235

258

328

181

223

  1. During the year from 1 August 2013 to 31 July 2014, 188 complainants complained, in all, about 235 Judges. In other words, some complainants made complaints about more than one Judge. For example, some complainants complained about:
    1. a Judge who presided over a hearing at first instance, as well as Judges who then presided over one or more subsequent appeals;
    2. several Judges who comprise a panel of Judges at an appellate level (in the case of the Supreme Court, that may mean up to five Judges).
  2. The following Table C shows a summarised year-on-year comparison between the past year (to 31 July 2014) and the previous year (to 31 July 2013). It also shows the increase or decrease in numbers, year-on-year.

Complaint particulars

Full year to 31 July 2014

Prior year to 31 July 2013

Full year comparison for 2012-13 and 2013-14 increase/(decrease)

No.

%

Complaints received during year

235

258

(23)

(9%)

Unfinalised complaints from previous year

79

97

(18)

(19%)

Total

314

355

(41)

(12%)

Total dealt with and completed during year

219

276

(57)

(20%)

Total unfinished at year's end

95

79

16

20%

Total

314

355

(41)

(12%)

Decisions made

  1. During the year from 1 August 2013 to 31 July 2014, the Commissioner and, in some instances, the Deputy Commissioner have made the following decisions:
    1. No further action: They decided to take no further action in respect of 25 complaints. This was done using the power conferred by Section 15A of the Act.
    2. Dismissal: They dismissed 184 complaints during the year upon one or more of the grounds set out in section 16(1) of the Act.

      The most common ground for the dismissal of complaints was where, essentially, the complainant called into question the validity of a decision made by a Judge. Section 8(2) of the Act provides that it is not a function of the Commissioner to challenge or call into question the legality or correctness of any judgment or other decision made by a Judge in relation to any legal proceedings. The proper avenue for that is by way of appeal or application for judicial review. The Commissioner's jurisdiction extends to issues of judicial conduct and not to judicial decisions as such.

      Generally, the statutory grounds for the dismissal of complaints were varied and included these:
      1. that the complaint fell outside the Commissioner's jurisdiction (most notably where section 8(2) of the Act had effect);
      2. that the complaint had no bearing on judicial functions;
      3. that the complaint was frivolous, vexatious or not in good faith;
      4. the complaint was about a judicial decision that is or was subject to a right of appeal or right to apply for judicial review;
      5. that the person who was the subject of the complaint was no longer a Judge;
      6. that the Commissioner had previously considered the subject matter of the complaint and it had not warranted any particular action.
    3. Reference to Head of Bench: They referred four complaints to the relevant Heads of Bench, pursuant to section 17(1) or section 8B(3) of the Act. It is then for the Head of Bench to determine how best to deal with matters, administratively, so far as the Judge complained of is concerned.
    4. Recommendation as to a Judicial Conduct Panel: No recommendation was made in the past year, pursuant to section 18(1) of the Act, that a Judicial Conduct Panel be appointed to inquire into matters concerning the alleged conduct of a Judge.
    5. Withdrawal: Six complaints were withdrawn by the respective complainants, following consideration of material provided by the Commissioner during the course of the preliminary examination.
  2. Complaints have been based on a variety of grounds. By far the most common was that the person who was aggrieved considered that a decision, ruling or order of a Judge was wrong. As indicated in paragraph 15(b) above, a complaint on that basis falls outside the Commissioner's jurisdiction - and must be dismissed for that reason. Other grounds specified in complaints included: perceptions of rudeness, unfairness, inappropriate remarks, failure to listen, failure to take note of relevant material, prejudice, bias, predetermination, conflicts of interest and corruption. (Depending upon the circumstances, not all of those will fall within the Commissioner's jurisdiction.)
  3. The mention of corruption, in particular, again merits some explanation. In some instances, a complainant has alleged that a Judge has been corrupt. The Commissioner and Deputy Commissioner take such an allegation especially seriously. But their investigations have revealed nothing that even hints at corruption. Some complainants do, however, conclude that the fact that a Judge disagrees with their (to them) self-evidently logical contentions must, in itself, be clear evidence that there has been corruption at work. But in no instance, so far, has any supporting information been proffered - or revealed, upon examination - to support the assertion.
  4. Of the 95 unfinalised complaints in 2013/2014, one remains deferred pending the conclusion of relevant Court proceedings. The Act authorises the Commissioner, following consultation with the Head of Bench, to defer dealing with a complaint pending the outcome of the relevant proceedings or the conclusion of an appeal.

Responses of the Judiciary

  1. The Commissioner is pleased to report that, overall, Judges about whom complaints have been made have, as previously, responded in a constructive and helpful manner. This materially assists the Commissioner in the examination of complaints and is appreciated by the Commissioner.
  2. There were, again as previously, a few instances in which a Judge might have been expected to be more forthcoming in providing some information about the context from which a complaint has arisen. It does help to have a reasonably explicit balance of views to consider.

Comparative statistics

  1. Table C (paragraph 14 above) provides a brief comparison of the number of complaints and the extent to which they were dealt with, as between:
    1. this reporting year (to 31 July 2014); and
    2. the previous reporting year (to 31 July 2013).
  2. These points emerge:
    1. there were 23 fewer new complaints received this year than there were last year (making a total of 235 for this year). That is an decrease of 9%;
    2. there were 57 fewer complaints finalised this year than last year (making a total of 219 for this year). That is an decrease of 20%;
    3. the number of unfinalised complaints this year was 95, an increase of 16 on last year's figure of 79.
  3. Thus, the number of new complaints received during the past year was fewer than for the previous year. The number of unfinalised complaints as at 31 July this year has risen slightly and, as just mentioned, stood at 95.
  4. That figure of 95 is still higher than is desirable. It is hard to say what an optimum figure should be. There will always be complaints in the course of examination. Time must be allowed for processing them, for Judges to respond, for (sometimes) Judges' decisions and the transcripts or audio recordings to be obtained and studied, for (sometimes) the views of others to be sought, and for decisions to be considered, written and then dispatched.

Complexity and frequency

  1. It is also the case that many complaints are becoming increasingly complex and detailed. A greater number now require more time to be spent in investigating them, considering them, and evolving a decision. Many decisions require significant elaboration (the longest, so far, covered 45 pages plus attachments).
  2. In addition, in order to obtain a clearer picture of what has transpired in a courtroom, it is often very helpful to listen to the audio recording of a hearing. That takes time. But it seems increasingly necessary to do that, so as to be fair both to the complainant and to the Judge. An audio recording frequently discloses relevant information about the tone and temper of the exchanges that took place that is not at all apparent from a transcript.
  3. A significant proportion of all complaints come from a comparatively small number of dissatisfied litigants who make repeated complaints when they receive judicial decisions which they do not accept. The complaints are generally expressed as raising issues of conduct on the part of the judge or judges concerned. Closer examination, however, often reveals that they are, essentially, about the correctness of judicial decisions - and thus beyond my jurisdiction. Nonetheless, it is important to approach and examine each complaint received impartially, on the premise that it may prove to be well founded.

Litigation

  1. As a separate but often related issue, there has also been a growing trend for some complainants, who are dissatisfied with the decision made by the Commissioner in respect of their complaint, then to initiate legal proceedings against the Commissioner, by way of judicial review, in an attempt to have the decision overturned or remitted for reconsideration.
  2. That is, of course, their right - as it is also the Commissioner's duty to defend such proceedings where it is wrongly alleged that the Commissioner or the Deputy has acted unlawfully.
  3. The point, for the purpose of this report, however, is to note that attending to these litigious efforts is requiring an increasing amount of time and attention, as well as incurring attendant legal fees.

Administrative support

  1. The Ministry of Justice is the authority that is responsible for the provision of administrative support. It currently makes available - on a part-time basis - the services of five highly talented people, with different skills. It also provides premises and equipment. These administrative arrangements do assist with the burden of work. It remains the case, however, that I, as Commissioner, and on occasions Mr Ritchie, as Deputy Commissioner, still remain under significant pressure.

Legislative changes

  1. In the previous annual report, I also mentioned the need for some legislative change. One of the specific changes I had proposed (a broader basis for delegation to the Deputy Commissioner) is included in the Statutes Amendment Bill currently before Parliament. If enacted, such a change would be beneficial. Another amendment will clarify a provision to dismiss a complaint.
  2. The Act does contain some internal contradictions. These generally affect the approach and scope of activity that the Commissioner should undertake in carrying out his or her responsibilities under the Act. For example, the Commissioner is required by the Act to conduct "preliminary examinations" of complaints. This suggests something of a fast and almost cursory nature. By contrast, though, the Commissioner is also required to specify the "grounds" or "reasons" for each decision. And those should, desirably, be sufficiently well researched and robustly expressed to withstand the frequent applications for judicial review that are made.
  3. These apparent contradictions in the Act do not currently present a serious problem. (In the example just given, the practice has been to adopt the more studied approach.) Nonetheless, the Act has been in force for nine years now, and a review of its structure and the suitability of its principal provisions could usefully be carried out.

Final comments

  1. I am hopeful that in next year's annual report it will be possible to record a further reduction (towards the indefinable optimum) in the number of unfinalised complaints. Such a reduction is not an end in itself. Its purpose is to improve the efficiency of operations, in order to reduce the time between complaints being lodged and decisions being completed. And that helps serve the objectives of the Act.
  2. I wish to express my gratitude to:
    • the Deputy Commissioner;
    • the personnel provided by the Ministry to work with me;
    • the counsel who represent me in the continuing flow of litigation; and
    • all others who have assisted me, in many ways, throughout the past year.

10 October 2014

David Gascoigne.

Sir David Gascoigne, KNZM, CBE
Judicial Conduct Commissioner

Overview of process for Judicial Conduct Commissioner and Judicial Conduct Panel

Flow chart of the process for Judicial Conduct Commissioner and Judicial Conduct Panel.

Judicial Conduct Commissioner or Commissioner includes a Deputy Judicial Conduct Commissioner carrying out the Commissioner's functions when the Commissioner has a conflict of interest, is absent from office, or is incapacitated, and during a vacancy in the office of Commissioner.


Annual Report for 2012/2013

Download the Annual Report 2012/13 (PDF, 172Kb)

Presented to the House of Representatives pursuant to Clause 9(2), Schedule 2 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004

Contents


Annual Report of the Judicial Conduct Commissioner for the year ended 31 July 2013

This Report

  1. This is the eighth Annual Report since the first Commissioner took office on 1 August 2005, being the date on which the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the "Act") came into effect.

The Commissioner and Deputy Commissioner

  1. The current Commissioner is Sir David Gascoigne. He took office on 3 August 2009.

  2. The current Deputy Commissioner is Alan Ritchie. He took office on 30 June 2011. The Deputy's role is to deal with complaints where the Commissioner has a conflict of interest, or where the Commissioner is absent or incapacitated, or where there is a vacancy in the office of Commissioner.

The Complaint Process

  1. The Commissioner's role under the Act is to receive, assess and categorise complaints about the conduct of Judges.

  2. The procedure generally adopted by the Commissioner, following the receipt of a complaint about the conduct of a Judge, is to notify the Judge of the complaint, and to seek any comment which the Judge may wish to make. The Commissioner can obtain any Court documents, including transcripts of hearings, and can listen to any sound recordings. The Commissioner may also make such other inquiries as the Commissioner considers appropriate.

  3. In carrying out his or her functions, the Commissioner must act independently, and must also act in accordance with the principles of natural justice.

  4. Once the Commissioner has completed a preliminary examination of a complaint, the Commissioner must select and apply one of the four courses of action, as set down in the Act:

    1. the Commissioner may exercise the power to take no further action in respect of the complaint (under section 15A); or
    2. the Commissioner may (under section 16) dismiss the complaint on one of the nine grounds specified in that section; or
    3. the Commissioner may (under section 17) refer the complaint to the Head of Bench, that is, to the Head of the particular Court on which the Judge who is the subject of the complaint sits; or
    4. the Commissioner may (under section 18) recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire further into any matters concerning the conduct of a Judge, if the Commissioner is of the opinion that:
      1. such an inquiry is necessary or justified; and
      2. if established, the conduct may warrant consideration of the removal of the Judge.

  5. An illustration of the process is shown in the attached diagram.

  6. The process, as briefly described above, but more particularly set out in the Act, is intended to serve the purpose of the Act.

    The purpose of the Act, as set out in section 4, is to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system by:

    1. providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office;
    2. establishing an office for the receipt and assessment of complaints about the conduct of Judges;
    3. providing a fair process that recognises and protects the requirements of judicial independence and natural justice.

Advice to the Public

  1. The Commissioner provides advice to the public about the complaint process through:
    • A website which describes the complaint process and provides downloadable forms and guidance sheets.
    • A brochure entitled "Complaints about Judicial Conduct".
    • Responding to telephone, emailed or postal inquiries.

Complaints Received

  1. The following Table A shows the statistics for complaints received by the Commissioner for the five years from 1 August 2008 to 31 July 2013:

Complaint particulars

2012-13

2011-12

2010-11

2009-10

2008-09

Number of complaints received

258

328

181

223

139

Number of unfinalised complaints from previous year

97

146

138

63

50

Total

355

474

319

286

189

Outcomes

 

 

 

 

 

Decision to take no further action under Section 15A

62

95

20

2

0

Complaints dismissed under section 16

196

269

140

125

113

Complaints referred to Head of Bench under Section 17

7

6

4

3

4

Complaints referred to Head of Bench at outset with consent of complainant because of conflict of interests or under Section 8B

1

2

0

1

0

Recommendation that a Judicial Conduct Panel be appointed under Section 18

0

0

0

3

0

Complaints withdrawn

10

5

9

14

9

Total complaints dealt with

276

377

173

148

126

Number of complaints unfinalised at 31 July

79

97

146

138

63

Total

355

474

319

286

189

  1. The following Table B shows the number of complaints received, on a Court by Court basis:

Courts

2012-13

2011-12

2010-11

2009-10

2008-09

Supreme Court

34

62

16

25

4

Court of Appeal

46

49

28

23

12

High Court

65

86

63

72

44

District Court

67

71

49

62

48

Family Court

30

52

19

29

27

Youth Court

0

0

0

0

0

Environment Court

4

2

1

5

3

Employment Court

4

0

2

2

0

Māori Land Court

5

1

2

2

1

Court Martial

0

0

0

0

0

Coroners Court

3

5

1

3

0

Total

258

328

181

223

139

  1. During the year from 1 August 2012 to 31 July 2013, 188 complainants complained, in all, about 258 Judges. In other words, some complainants made complaints about more than one Judge. For example, some complainants complained about:

    1. a Judge who presided over a hearing at first instance, as well as Judges who then presided over one or more subsequent appeals;
    2. several Judges who comprise a panel of Judges at an appellate level.

  2. The following Table C shows a summarised year-on-year comparison between the past year (to 31 July 2013) and the previous year (to 31 July 2012). It also shows the increase or decrease in numbers, year-on-year.

Complaint particulars

Full year to 31 July 2013

Prior year to 31 July 2012

Full year comparison for 2010-11 and 2011-12 increase/(decrease)

     

No.

%

Complaints received during year

258

328

(70)

(21%)

Unfinalised complaints from prior year

97

146

(49)

(34%)

Total

355

474

(119)

(25%)

         

Total dealt with and completed during year

276

377

(101)

(27%)

Total unfinalised at year's end

79

97

(18)

(19%)

Total

355

474

(119)

(25%)

Decisions Made

  1. During the year from 1 August 2012 to 31 July 2013, the Commissioner and, in some instances, the Deputy Commissioner have made the following decisions:
    1. No further action: They decided to take no further action in respect of 62 complaints. This was done using the power conferred by Section 15A of the Act.

    2. Dismissal: They dismissed 196 complaints during the year upon one or more of the grounds set out in section 16(1) of the Act.

      The most common ground for the dismissal of complaints occurred where, essentially, the complainant called into question the validity of a decision made by a Judge. Section 8(2) of the Act provides that it is not a function of the Commissioner to challenge or call into question the legality or correctness of any judgment or other decision made by a Judge in relation to any legal proceedings. The proper avenue for that is by way of appeal or application for judicial review. The Commissioner's jurisdiction extends to issues of judicial conduct and not to judicial decisions as such.

      Generally, the statutory grounds for the dismissal of complaints were varied and included these:

      1. that the complaint fell outside the Commissioner's jurisdiction (most notably where section 8(2) of the Act had effect);
      2. that the complaint had no bearing on judicial functions;
      3. that the complaint was frivolous, vexatious or not in good faith;
      4. the complaint was about a judicial decision that is or was subject to a right of appeal or right to apply for judicial review;
      5. that the person who was the subject of the complaint was no longer a Judge;
      6. that the Commissioner had previously considered the subject matter of the complaint and it had not warranted any particular action.

    3. Reference to Head of Bench: They referred 8 complaints to the relevant Heads of Bench, pursuant to section 17(1) or section 8B of the Act. It is then for the Head of Bench to determine how best to deal with matters, administratively, so far as the Judge complained of is concerned.

    4. Recommendation as to a Judicial Conduct Panel: No recommendation was made in the past year, pursuant to section 18(1) of the Act, that a Judicial Conduct Panel be appointed to inquire into matters concerning the alleged conduct of a Judge.

    5. Withdrawal: 10 complaints were withdrawn by the respective complainants, following consideration of material provided by the Commissioner during the course of the preliminary examination.

  2. Complaints have been based on a variety of grounds. By far the most common was that the person who was aggrieved considered that a decision, ruling or order of a Judge was wrong. As indicated in paragraph 15(b) above, a complaint on that basis falls outside the Commissioner's jurisdiction – and must be dismissed for that reason. Other grounds specified in complaints included: perceptions of rudeness, unfairness, inappropriate remarks, failure to listen, failure to take note of relevant material, prejudice, bias, predetermination, conflicts of interest and corruption. (Depending upon the circumstances, not all of those will fall within the Commissioner's jurisdiction.)

  3. The mention of corruption, in particular, again merits some explanation. In a few instances, a complainant has alleged that a Judge has been corrupt. The Commissioner and Deputy Commissioner take such an allegation especially seriously. But their investigations have revealed nothing that even hints at corruption. Some complainants do, however, conclude that the fact that a Judge disagrees with their contentions must, in itself, be clear evidence that there has been corruption. But in no instance, so far, has any supporting information been proffered – or revealed upon examination – to support the assertion.

  4. Of the 79 unfinalised complaints in 2012/2013, two remain deferred pending the conclusion of relevant Court proceedings. The Act authorises the Commissioner, following consultation with the Head of Bench, to defer dealing with a complaint pending the outcome of the relevant proceedings or the conclusion of an appeal.

Responses of the Judiciary

  1. The Commissioner is pleased to report that, overall, Judges about whom complaints have been made have, as previously, responded in a constructive and helpful manner. This materially assists the Commissioner in the examination of complaints and is appreciated by the Commissioner.

  2. There were, again as previously, just a few instances in which a Judge might have been expected to be more forthcoming in providing some information about the context from which a complaint has arisen. It does help to have a reasonably explicit balance of views to consider.

Comparative statistics

  1. Table C (paragraph 14 above) provides a brief comparison about the number of complaints and the extent to which they were dealt with, as between:

    1. this reporting year (to 31 July 2013); and
    2. the previous reporting year (to 31 July 2012).

  2. These points emerge:

    1. there were 70 fewer new complaints received this year than there were last year (making a total of 258 for this year). That is an decrease of 21%;
    2. there were 101 fewer complaints finalised this year than last year (making a total of 276 for this year). That is an decrease of 27%;
    3. the number of unfinalised complaints this year was 79, a reduction of 18 below last year's figure of 97. That is a reduction of 19%.

  3. Thus, the number of new complaints received during the past year was fewer than for the previous year. But, perhaps more significantly, the number of unfinalised complaints as at 31 July this year has fallen and, as just mentioned, stood at 79.

  4. That figure of 79 is still somewhat higher than is desirable. But for unfinalised complaints progress is being made. It is hard to say what an optimum figure should be. There will always be complaints in the course of examination. Time must be allowed for processing them, for Judges to respond, for (sometimes) Judges' decisions and the transcripts or recordings to be obtained and studied, for (sometimes) the views of others to be sought, and for decisions to be written and then dispatched.

Complexity and frequency

  1. It is also the case that many complaints are becoming increasingly complex and detailed. A greater number now require more time to be spent in investigating them, considering them, and evolving a decision.

  2. A significant proportion of all complaints come from a comparatively small number of dissatisfied litigants who make repeated complaints when they receive judicial decisions which they do not accept. The complaints are generally expressed as raising issues of conduct on the part of the judge or judges concerned. Closer examination, however, often reveals that they are, essentially, about the correctness of judicial decisions – and thus beyond my jurisdiction. Nonetheless, it is important to examine each case received on the premise that it may prove to be well founded.

Litigation

  1. As a separate but often related issue, there has also been a growing number of instances in which some complainants who are dissatisfied with the decision made by the Commissioner in respect of their complaint then initiate legal proceedings against the Commissioner, by way of judicial review, in an attempt to have the decision overturned or remitted for reconsideration.

  2. That is, of course, their right – though in some of these cases I do seek to have these proceedings regarded by the Court as being vexatious or as an abuse of the Court's processes.

  3. The point, for the purpose of this report, however, is to note that attending to these litigious efforts is requiring an increasing amount of time and attention, as well as incurring attendant legal fees.

Administrative support

  1. In last year's annual report, I mentioned that the administering authority, the Ministry of Justice, had provided additional resources – personnel, premises and equipment – to assist with the burden of work. These administrative arrangements are working satisfactorily, though I, as Commissioner, and on occasions Mr Ritchie, as Deputy Commissioner, still remain under significant pressure.

Legislative changes

  1. In the previous annual report, I also mentioned the need for some legislative change. I understand that one of the specific changes I had proposed (a broader basis for delegation to the Deputy Commissioner) may be included in the Statutes Amendment Bill shortly to be introduced in Parliament. If enacted, such a change would be beneficial.

  2. There are other aspects of the Act which recent experience has shown to be unsatisfactory. I propose to advance proposals for change in that regard, as well.

Final comments

  1. I am hopeful that in next year's annual report it will be possible to record a further reduction (towards the indefinable optimum) in the number of unfinalised complaints. Such a reduction is not an end in itself. Its purpose is to improve the efficiency of operations, in order to reduce the time between complaints being lodged and decisions being completed. And that helps serve the objectives of the Act.

  2. I wish to express my gratitude to the Deputy Commissioner, to the personnel provided by the Ministry to work with me – and to all those who have assisted me, in many ways, throughout the past year.

30 September 2013


David Gascoigne.

Sir David Gascoigne, KNZM, CBE
Judicial Conduct Commissioner

Overview of Process for Judicial Conduct Commissioner and Judicial Conduct Panel

Flow chart of the process for Judicial Conduct Commissioner and Judicial Conduct Panel.

Judicial Conduct Commissioner or Commissioner includes a Deputy Judicial Conduct Commissioner carrying out the Commissioner's functions when the Commissioner has a conflict of interest, is absent from office, or is incapacitated, and during a vacancy in the office of Commissioner.


Annual Report for 2011/2012

Download the Annual Report 2011/12 (PDF, 366Kb)

Presented to the House of Representatives pursuant to Clause 9(2), Schedule 2 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004

Contents


Annual Report of the Judicial Conduct Commissioner for the year ended 31 July 2012

This Report

1. This is the seventh Annual Report since the first Commissioner took office on 1 August 2005, being the date on which the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 came into effect.

The Commissioner

2. The first Commissioner appointed under the Act was Mr Ian Haynes. His term of office commenced on 1 August 2005 and concluded on 12 July 2009.

3. The second, and current, Commissioner is Sir David Gascoigne. He took office on 3 August 2009.

The Deputy Commissioner

4. An office called the Deputy Judicial Conduct Commissioner was established by an amendment to the Act. The amendment came into force on 23 March 2010.

5. The role of the Deputy Judicial Conduct Commissioner is to deal with complaints where the Commissioner has a conflict of interest, or where the Commissioner is absent or incapacitated, or where there is a vacancy in the office of Commissioner.

6. Mr Alan Ritchie was appointed to this position. He took office on 30 June 2011.

The Complaint Process

7. The Commissioner's role under the Act is to receive, assess and categorise complaints about the conduct of Judges.

8. The procedure generally adopted by the Commissioner, following the receipt of a complaint about the conduct of a Judge, is to notify the Judge of the complaint, and to seek any comment which the Judge may wish to make. The Commissioner can obtain any Court documents, including transcripts of hearings, and can listen to any sound recordings. The Commissioner may also make such other inquiries as the Commissioner considers appropriate.

9. In carrying out his or her functions, the Commissioner must act independently, and must also act in accordance with the principles of natural justice.

10. Once the Commissioner has completed a preliminary examination of a complaint, the Commissioner must select and apply one of the four courses of action, set down in the Act:

  1. the Commissioner may exercise the power to take no further action in respect of the complaint (under section 15A, a power conferred by the amendment to the Act referred to in paragraph 4 above); or
  2. the Commissioner may (under section 16) dismiss the complaint on one of the nine grounds specified in that section; or
  3. the Commissioner may (under section 17) refer the complaint to the Head of Bench, that is, to the Head of the particular Court on which the Judge who is the subject of the complaint sits; or
  4. the Commissioner may (under section 18) recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire further into any matters concerning the conduct of a Judge, if the Commissioner is of the opinion that:
    1. such an inquiry is necessary or justified; and
    2. if established, the conduct may warrant consideration of the removal of the Judge.

11. An illustration of the process is shown in the attached diagram.

12. The process, as briefly described above, but more particularly set out in the Act, is intended to serve the purpose of the Act.
The purpose of the Act, as set out in section 4, is to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system by:

  1. providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office;
  2. establishing an office for the receipt and assessment of complaints about the conduct of Judges;
  3. providing a fair process that recognises and protects the requirements of judicial independence and natural justice.

Advice to the Public

13. The Commissioner provides advice to the public about the complaint process through:

  • A website which describes the complaint process and provides downloadable forms and guidance sheets.
  • A brochure entitled "Complaints about Judicial Conduct".
  • Responding to telephone, emailed or postal inquiries.

Complaints Received

14. The following Table A shows the statistics for complaints received by the Commissioner for the five years from 1 August 2007 to 31 July 2012:

Complaint particulars

2011-12

2010-11

2009-10

2008-09

2007-08

Number of complaints received

328

181

223

139

101

Number of unfinalised complaints from previous year

146

138

63

50

31

Total

474

319

286

189

132

Outcomes

 

 

 

 

 

Decision to take no further action under Section 15A

95

20

2

0

0

Complaints dismissed under section 16

269

140

125

113

80

Complaints referred to Head of Bench under Section 17

6

4

3

4

2

Complaints referred to Head of Bench at outset with consent of complainant because of conflict of interests or under Section 8B

2

0

1

0

0

Recommendation that a Judicial Conduct Panel be appointed under Section 18

0

0

3

0

0

Complaints withdrawn

5

9

14

9

0

Total complaints dealt with

377

173

148

126

82

Number of complaints unfinalised at 31 July

97

146

138

63

50

Total

474

319

286

189

132

15. The following Table B shows the number of complaints received, on a Court by Court basis:

Courts

2011-12

2010-11

2009-10

2008-09

2007-08

Supreme Court

62

16

25

4

10

Court of Appeal

49

28

23

12

9

High Court

86

63

72

44

19

District Court

71

49

62

48

50

Family Court

52

19

29

27

13

Youth Court

0

0

0

0

0

Environment Court

2

1

5

3

0

Employment Court

0

2

2

0

0

Māori Land Court

1

2

2

1

0

Courts Martial Appeal Court

0

0

0

0

0

Coroners Court

5

1

3

0

0

Total

328

181

223

139

101

16. During the year from 1 August 2011 to 31 July 2012, 186 complainants complained, in all, about 328 Judges. In other words, some complainants made complaints about more than one Judge. For example, some complainants complained about:

  1. a Judge who presided over a hearing at first instance, as well as Judges who then presided over one or more subsequent appeals;
  2. several Judges who comprise a panel of Judges at an appellate level.

17. The following Table C shows a summarised year-on-year comparison between the past year (to 31 July 2012) and the previous year (to 31 July 2011). It also shows the increase or decrease in numbers, year-on-year.

Complaint particulars

Full Year to 31 July 2012

Prior year to 31 July 2011

Full year comparison for 2010-11 and 2011-12 increase/(decrease)

     

No.

%

Complaints received during year

328

181

147

81%

Unfinalised complaints from prior year

146

138

8

6%

Total

474

319

155

49%

         

Total dealt with and completed during year

377

173

204

118%

Total unfinalised at year's end

97

146

(49)

(34%)

Total

474

319

155

49%

Decisions Made

18. During the year from 1 August 2011 to 31 July 2012, the Commissioner and, in some instances, the Deputy Commissioner have made the following decisions:

  1. No further action: They decided to take no further action in respect of 95 complaints. This was done using the power conferred by Section 15A of the Act.
  2. Dismissal: They dismissed 269 complaints during the year upon one or more of the grounds set out in section 16(1) of the Act.

    The most common ground for the dismissal of complaints occurred where, essentially, the complainant called into question the validity of a decision made by a Judge. Section 8(2) of the Act provides that it is not a function of the Commissioner to challenge or call into question the legality or correctness of any judgment or other decision made by a Judge in relation to any legal proceedings. The proper avenue for that is by way of appeal or application for judicial review. The Commissioner's jurisdiction extends to issues of judicial conduct and not to judicial decisions as such.

    Other grounds for the dismissal of complaints were varied and included these:
    1. that the complaint fell outside the Commissioner's jurisdiction;
    2. that the complaint had no bearing on judicial functions;
    3. that the complaint was frivolous, vexatious or not in good faith;
    4. the complaint was about a judicial decision that is or was subject to a right of appeal or right to apply for judicial review;
    5. that the person who was the subject of the complaint was no longer a Judge;
    6. that the Commissioner had previously considered the subject matter of the complaint and it had not warranted any particular action.
  3. Reference to Head of Bench: They referred 8 complaints to the relevant Heads of Bench, pursuant to section 17(1) or section 8B of the Act. It is then for the Head of Bench to determine how best to deal with matters, so far as the Judge complained of is concerned.

    In two of those 8 instances, the Commissioner felt that there was, or could be a perception of, a conflict of interest. He then referred the complaints to the Deputy Commissioner. For his part, the Deputy Commissioner (for different reasons) reached the same conclusion about a conflict. So, as required by section 8B of the Act, he referred those complaints to the relevant Head of Bench.
  4. Recommendation as to a Judicial Conduct Panel: No recommendation was made in the past year, pursuant to section 18(1) of the Act, that a Judicial Conduct Panel be appointed to inquire into matters concerning the alleged conduct of a Judge.
  5. Withdrawal: 5 complaints were withdrawn by the respective complainants, following consideration of material provided by the Commissioner during the course of the preliminary examination.

19. Complaints have been based on a variety of grounds. By far the most common was that a decision, ruling or order of a Judge was wrong. As indicated in paragraph 18(b) above, a complaint on that basis falls outside the Commissioner's jurisdiction. Other grounds specified in complaints included: perceptions of rudeness, unfairness, inappropriate remarks, failure to listen, failure to take note of relevant material, prejudice, bias, predetermination, conflict of interests and corruption. (Depending upon the circumstances, not all of those will fall within the Commissioner's jurisdiction.)

20. The mention of corruption, in particular, merits some explanation. In a few instances, a complainant has alleged that a Judge has been corrupt. The Commissioner and Deputy Commissioner take such an allegation especially seriously. But their investigations have revealed nothing that even hints at corruption. Some complainants do, however, conclude that the fact that a Judge disagrees with their contentions must, in itself, be clear evidence that there has been corruption. But in no instances, so far, has any supporting information been proffered, or revealed, to support the assertion.

21. Of the 97 unfinalised complaints in 2011/2012, 7 remain deferred pending the conclusion of relevant Court proceedings. The Act authorises the Commissioner, following consultation with the Head of Bench, to defer dealing with a complaint pending the outcome of the relevant proceedings or the conclusion of an appeal.

Responses of the Judiciary

22. The Commissioner is pleased to report that, overall, Judges about whom complaints have been made have responded in a constructive and helpful manner. This materially assists the Commissioner in the examination of complaints and is appreciated by the Commissioner.

23. There were a few instances in which a Judge might have been expected to be a little more forthcoming in providing some view about the context from which a complaint has arisen.

General Observations

24. Table C (paragraph 17 above) provides a brief comparison about the number of complaints and the extent to which they were dealt with, as between:

  1. this reporting year (to 31 July 2012); and
  2. the previous reporting year (to 31 July 2011).

25. These points emerge:

  1. there were 147 more new complaints received this year than there were last year (making a total of 328 for this year). That is an increase of 81%;
  2. there were 204 more complaints finalised this year than last year (making a total of 377 for this year). That is an increase of 118%;
  3. the number of unfinalised complaints this year was 97, a reduction of 49 below last year's figure of 146. That is a reduction of 34%.

26. Thus, the workload of the Commissioner continues to grow. But the rate at which complaints are being considered and finalised has improved markedly. The number of unfinalised complaints as at 31 July this year has fallen and, as just mentioned, stands at 97.

27. That figure of 97 is still too high. But significant progress is being made. It is hard to say what an optimum figure should be. There will always be complaints in the course of examination. Time must be allowed for processing them, for Judges to respond, for (sometimes) decisions and transcripts or recordings to be obtained and studied, for (sometimes) the views of others to be sought, and for decisions to be written.

28. It is also the case that many complaints are becoming increasingly complex and detailed. A greater number now require more time to be spent in investigating them, considering them, and evolving a decision.

29. In the two previous annual reports, I was overtly critical of the lack of resources with which to undertake the work required to be done. The workload continued to grow, but the resources needed - especially people, but also premises and equipment - were increasingly inadequate for the purpose.

30. At the end of the last year's annual report, I mentioned that productive discussions were at last being held with the administering authority, the Ministry of Justice. I am pleased to say that those discussions have since proved to be fruitful.

31. More personnel, to assist in the administration and examination of complaints, have been made available. New premises have been found. (Previously, there was no space for the Commissioner in the Office of the Judicial Conduct Commissioner.) New equipment has been installed. I am grateful to the senior personnel at the Ministry who have assisted with these necessary improvements.

32. In fact, the provision of additional resources (when taken with the increasing numbers of complaints) has created a different issue. The amount of work confronting me, as Commissioner, has grown. I do have the great advantage of support from the Deputy Commissioner, Mr Ritchie. But the circumstances in which he can act of his own initiative are tightly constrained (see paragraph 5).

33. One way of easing the position would be to amend the Act to provide for the appointment of more than one Judicial Conduct Commissioner - one of whom would be Chief Judicial Conduct Commissioner. (This may be compared with the provisions of the Ombudsmen Act 1975.)

34. In the longer term such a change may be necessary. But for present purposes, a simpler solution is available. It is to amend the Act to allow the Commissioner to delegate to the Deputy Commissioner the power to examine and make decisions in respect of specific identified complaints, where the Commissioner considers that to be expedient and conducive to attaining the purpose of the Act. The Deputy may then exercise the powers of the Commissioner in relation to those complaints.

35. I propose to pursue that proposal. There are a number of other amendments to the Act that could usefully be made which would improve its effectiveness, without derogating from the principles upon which it is founded. I propose to advance these issues as well.

36. I am hopeful that in next year's annual report I will be able to record a further reduction (towards the indefinable optimum) in the number of unfinalised complaints. Such a reduction is not an end in itself. Its purpose is to improve the efficiency of operations, in order to reduce the time between complaints being lodged and decisions being completed. And that helps serve the objectives of the Act.

37. I wish to express my gratitude to the Ministry and to all those who have assisted me, in many ways, throughout the past year.

21 August 2012

David Gascoigne.

Sir David Gascoigne, KNZM, CBE
Judicial Conduct Commissioner

Overview of Process for Judicial Conduct Commissioner and Judicial Conduct Panel

Flow chart of the process for Judicial Conduct Commissioner and Judicial Conduct Panel.

† Judicial Conduct Commissioner or Commissioner includes a Deputy Judicial Conduct Commissioner carrying out the Commissioner's functions when the Commissioner has a conflict of interest, is absent from office, or is incapacitated, and during a vacancy in the office of Commissioner.


Annual Report for 2010/2011

Download the Annual Report 2010/11 (PDF, 178Kb)


Annual Report for 2009/2010

Download the Annual Report 2009/10 (PDF, 303Kb)


Annual Report for 2008/2009

Download the Annual Report 2008/09 (PDF, 123Kb)


Annual Report for 2007/2008

Download the Annual Report 2007/08 (PDF, 123Kb)


Annual Report for 2006/2007

Download the Annual Report 2006/07 (PDF, 256Kb)


Annual Report for 2005/2006

Annual Report 2005/06 (PDF, 120Kb)