Howard's End: Seeking 1500 Wrongly Dismissed

As the country debates severing links with the Privy Council the hunt is on to find 1500 people whose appeals were wrongly dismissed during years of improper conduct by our NZ Court of Appeal from where judges will be drawn for any new Supreme Court. Maree Howard writes.

Public advertisements have been carried in weekend newspapers seeking people who appealed their conviction or sentence between 1991-2001 which were either dismissed without a full hearing in the Court of Appeal, were refused legal aid, or did not have a lawyer for the appeal.

The Privy Council was damning of our Court of Appeal last year and said the procedural failures were unprecedented.

"The system used were contrary to the fundamental conceptions of fairness and justice," the Privy Council said.

Delivering the Privy Council judgment of herself, Justice Noel Anderson and Justice Susan Glazebrook, Chief Justice Sian Elias said at the time that the Court had to do what it reasonably could to contact the approximately 1500 people thought to be affected, to advise them of their right to seek a rehearing.

"What has happened needs to be confronted and set right" Chief Justice Elias said.

The public advertisements in weekend newspapers looks to be the first step by the Court of Appeal to redress its past wrongs.

It is patently obvious that what these judges did was contrary to the fundamental conceptions of fairness and justice which we expect from our leading law scholars. If they can't get the law right over many years then how on earth is the general populace expected to?

And it's not the first time.

Without mincing words, in1999 the Privy Council also held that the Court of Appeal had denied natural justice to the parties in the Urban Maori and Fisheries Commission case.

In one recent case I am aware of, a Master of the High Court went merrily on his way holding pre-hearing conferences, setting timetabling for an exchange of submissions and then after two telephone toll-call conferences which the the poor applicant had to pay for - oh! oh! - it was then discovered that the Master didn't have any power to hear a strike out application of a judicial review.

Any apology, any offer to reimburse the poor bloody applicant for toll-call costs and time unnecessarily wasted? - Nah! Nobody gave a stuff. It was second-rate justice at its worst from the High Court, no less.

I am not being too harsh.

Of course it can be argued that our judges get it right more than they get it wrong, but getting it wrong in human rights and access to justice matters is simply unacceptable and intolerable to me as a New Zealander.

I love the law, its nuance's and the chess-like games played between lawyers and judges. While I might be seen as quirky in enjoying reading the judgments of some of the world's greatest legal scholars, it is upholding the rule of law and justice which greatly interest's me. Without the rule of law there is nothing but barbarism, abuse and oppression.

But we have to know, understand and, too often, we have to have the law explained to us. If not judges, then whom? Don't say lawyers because many of them are none the wiser either. It's really a guessing game - the most often asked question in law a firm seems to be - is that right or isn't it?

There are far too many mistakes being made by our judges thoughout the whole judicial spectrum from District Court to High Court to Court of Appeal for my liking.

It's almost as though we have conveyor-belt justice in this country where people enter at one end, are chewed over and spat out the other, none the wiser - but certainly less financial.

I have a message for all of our judges and it's this - The law is addressed to us, the people.

It's not addressed to you, to lawyers or your systems which you are familiar with. The law is ours, plain and simple.

Respect that we, the people, don't always understand where you are coming from when you make comments in Court. Respect that we just might want to be told or have something explained to us. Respect that we are in an unfamiliar and sometimes confrontational environment. Respect that we are "ordinary people" and be flexible towards us because of that.

As one of our leading judges once commented, reasonablensss must by judged "by the standards of the person travelling on the Kilbirnie omnibus." That's us, judge, not you.

Treat us more as human beings, not like some slave of Pharoah's Court. As Lord Denning MR said; "Be you ever so high the law is above you." And that includes you, judge.

We want you give a generous interpretation to laws affecting fundamental rights. That requires what Lord Wilberforce described as a generous interpretation avoiding what has been called "...the austerity of tabulated legalism, suitable to give individuals the full measure of fundamental rights and freedoms."

Statutory interpretation is not a science - it is an art. But remember judge, you no longer operate in a vacuum where your judgments cannot be scrutinised. Thanks to the Internet, you now operate on the global scene where anybody around the world can read your judgments scanned on to the web, and either laugh at them - or cry at them.

Finally judge, remember that you should not allow general words in a statute to abrogate fundamental rights of a constitutional character.

In practice, too many of you fail to observe that principle.

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