Howard’s End: Legal Anarchy & The Court Of Appeal

The recent landmark decision of the Privy Council that our Court of Appeal was, between 1996 and 2000, engaging in what I can only describe as legal anarchy, demands the judges involved ought to be held to account by the public of New Zealand whom they are supposed to serve. Maree Howard writes.

It is my honest and sincere opinion from the substance of this Privy Council decision, that the judges of the Court of Appeal, between 1996 and 2000, have broken the law.

"We will sell to no man, we will not deny or defer to any man either justice or right," so says part of Chapter 29 of Magna Carta which still has force of law in New Zealand by virtue of the Imperial Laws Application Act 1988.

Furthermore, judicial notice must be taken of all acts of Parliament and of all regulations and Magna Carta is incorporated into an Act of Parliament as the law of this land.

If relationships are based purely on power with little concession to justice and equity then stability rests on insecure foundations.

In what is being described as a scathing judgment by the Privy Council of our Court of Appeal, along with lawyers saying it is a "thunderous and unprecedented judgment which is breathtaking in its scope and implications," the Privy Council has found that the appellant system failed the basic test of deciding the merits of appeals using procedural due process.

And it went on for four years before the Government had to intervene and change the rules whereby the Court of Appeal had its power to grant legal aid removed.

The Court of Appeal had denied legal aid to 12 convicted appellants between 1996 and 2000 who subsequently had their appeal dismissed without an oral hearing.

Effectively, these people have languished in a prison and, it seems, they are now to sue the Solicitor- General.

Wellington lawyer, Tony Ellis says, “They got a second-class peasants' appeal. If you were rich you didn't get this system; you just got an automatic appeal before live judges."

The Privy Council found that that was effectively discrimination between rich and poor since appellants who could afford a lawyer were always given an oral hearing.

Those refused legal aid were left to file an argument on paper which many, without a lawyer, were incapable of doing. Most of them turned down for legal aid and told their case would be dealt with on the paper did not make written submissions.

As if it couldn't get any worse, "the system" then failed to provide defendants with important legal documents when they were denied legal aid and left to represent themselves.

"This deprived them of the ability to exercise effectively their rights to appeal," the Privy Council said.

"The could not have happened in the case of legally represented appellants," it said.

Some prominent lawyers are starting to defend the scathing judgment on the basis that it happened because of a heavy workload and the extraordinary pressure our Court of Appeal judges are under.

Hang on ! It went on for 4 years and nobody, least of all it seems, the prominent lawyers, appeared to do anything until some bright legal sparks seeking justice said this is wrong and decided to do something about it at the Privy Council.

How on earth can a heavy case load be used as an excuse for fundamental flaws in judgment in decisions which were connected to a person either having money or no money?

And how does a heavy workload excuse the fact that even important legal documents were denied those left to represent themselves?

This is a human rights scandal of the proportions of hospitals keeping baby parts. But the judges, supposedly top legal scholars, should have known better - they must be held to account and, if necessary, have their judicial warrants removed.

It is simply not satisfactory for the Attorney-General, Margaret Wilson, who has invited debate to end appeals to the Privy Council, to now ask the Solicitor-General to prepare a report. Or for her to ask Justice Minister Phil Goff to help the Government assess the implications.

It's clear, to me at least, that there is an unhealthy culture and mindset within some of our judiciary at the highest level, and if they still remain in their positions, they must be removed. Moreover, they must be held accountable in law.

Unaddressed grievances rooted in injustice provokes anger. What happened over four years is inexcusable. The ordinary citizen is always held to account by the law and so should those judges.

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