A Moral Victory: The Supreme Court Rescues Our Judiciary From Itself.

The Last Line Of Defence: What is wrong with our justice system that the judgements of its lower courts have so often been overturned and criticised by the Law Lords of the UK Privy Council and, more latterly, the judges of our own Supreme Court?

THE SUPREME COURT has finally declared the deal struck between the Department of Labour and Pike River boss, Peter Whittall, “unlawful”. A moral victory for Sonja Rockhouse and Anna Osborne, certainly, but hardly a victory for the New Zealand justice system. Though the Supreme Court came through for the plaintiffs in the end, the High Court and, more worrying still, the Court of Appeal, had both earlier rejected their legal team’s arguments. Had these two women not been as tough as the Pike River rock, their gruelling legal journey all the way to the Supreme Court might never have been completed. It would still be legally acceptable for delinquent chief executives to buy their way out of a conviction. Significantly, too much time has passed for Mr Whittall to be hauled back into court.

What is wrong with our justice system that the judgements of its lower courts have so often been overturned and criticised by the Law Lords of the UK Privy Council and, more latterly, the judges of our own Supreme Court? Why, for example, did it require a determined journalist, an Aussie jurist and a bloody-minded prime minister to give Arthur Alan Thomas justice? Why was New Zealand’s Court of Appeal so manifestly unequal to that task? And why was Peter Ellis unable to rely upon that same Court of Appeal to clear his name? In other jurisdictions, all the victims of the moral panics induced by false “Satanic Abuse” accusations had their convictions overturned in their countries’ courts of appeal. Not here.

It’s almost as if the New Zealand courts are afraid of acknowledging the occasional mistakes that all highly complex human institutions are bound to make. That once the State, or the Courts, have determined a person to be guilty, and an institution innocent, then that judgement must be upheld at any cost. Those exercising authority over their fellow citizens have been robed, like the Pope, in the vestments of infallibility. Thus protected, their judgements are only very rarely overturned.

Those filling the high seats of our justice system are not only reluctant to overturn the decisions of their colleagues in the lower courts, but they seem equally reluctant to hold accountable their peers in public administration and corporate management. And woe betide any members of the judiciary who so forget themselves that they condemn wrong-doing in high places in memorable and evocative language. When Judge Peter Mahon called the testimony of Air New Zealand to the Erebus Inquiry “an orchestrated litany of lies”, the national airline appealed to his brother judges to have the offending words struck out. They happily obliged!

This ingrained reluctance to hold New Zealand’s most powerful citizens and institutions to account, renders our justice system contemptible in the eyes of those who look to the judiciary for protection against the growing power of the state and its agencies. As if this failure wasn’t serious enough, the judiciary’s all-too-obvious reverence for the wielders of power in New Zealand society has, over many decades, seeped down into the minds of the broader population, contaminating the pool of potential jurors.

The near impossibility of securing a conviction in even the most egregious cases of police officers breaking the law is, in part, a reflection of the judiciary’s failure to educate the public in the supreme importance of making sure that those entrusted with the enforcement of the law understand how absolutely they are professionally and personally bound to uphold it. It is not difficult to understand why, earlier this week, after learning of the acquittal of two Police officers charged with kidnapping a 17-year-old youth, Dr Dean Knight, a senior law lecturer at Wellington’s Victoria University, tweeted: “I worry the rule of law took a hit today.”

It’s as well the Supreme Court chose the same week to reaffirm the principle that, in a nation of laws, it must remain utterly unacceptable for persons charged with offences to avoid conviction by simply handing over a great deal of money. Until the members of this country’s highest court intervened, the Labour Department’s refusal to present evidence against Peter Whittall had provided the critics of our judicial system with a seemingly irrefutable example of the way in which the powerful are able to close ranks against people like Sonja Rockhouse and Anna Osborne – making a mockery of their expectation that all citizens will be treated equally before the law.

Had they not, then the words of the Ancient Scythian philosopher, Anacharsis, would have been borne out in their entirety:

“These decrees of yours are no different from spiders’ webs. They’ll restrain anyone weak and insignificant who gets caught in them, but they’ll be torn to shreds by people with power and wealth.”

This essay was originally posted on The Daily Blog of Saturday, 26 November 2017.