Karl du Fresne: It seems to be open season on Judge Callinicos

There have been significant developments in the case of Moana (not her real name), the Maori girl whom Oranga Tamariki wanted removed from her Pakeha foster parents. I commented on the case here, here and here.

The Dominion Post’s long-serving Hawke’s Bay reporter Marty Sharpe, who broke the story, reported yesterday that the Judicial Conduct Commissioner, Alan Ritchie, found that two senior judges did not act inappropriately when they contacted Family Court judge Peter Callinicos to express concerns over his handling of the Moana case.

Chief District Court judge Heemi Taumaunu and Principal Family Court judge Jackie Moran intervened while the case was still in progress, prompting a complaint from Callinicos that their action compromised his judicial independence.

The two senior judges, known as the Heads of Bench, acted after Sir Wira Gardiner – then head of Oranga Tamariki, the department whose social workers Callinicos grilled over their behaviour in the Moana case – had contacted them.

According to Ritchie’s preliminary report, Taumaunu denied any attempt to direct Callinicos and said he and Moran wanted to engage with him over his in-court conduct, not his decision-making.

Taumaunu said he and Moran had become involved after concerns were expressed about Callinicos’s handling of an earlier case relating to a Mrs P. He said Callinicos “appeared to me to have been engaging in a pattern of bullying behaviour”.

Moran said there had been numerous complaints about Callinicos and they needed to be addressed promptly.

Extraordinarily, Ritchie sought comment from Taumaunu and Moran but according to Callinicos, not from him. Sharpe quoted Callinicos as saying: “If the Judicial Conduct Commissioner was investigating a complaint in which I was a participant, but not the subject of, then in the absence of some extraordinary reason, I would have thought that I would have been invited to make input.”

I would have thought so too. Even junior reporters are expected to seek both sides of the story (although, sadly, less so now than back in the day). I would have thought it went without saying that the same fundamental principle of fairness would be scrupulously applied in a matter as serious as a complaint about judicial conduct.

David Farrar of Kiwiblog has a good critical analysis of Ritchie’s preliminary finding here. But in the meantime, the Moana case has widened to include a judicial heavyweight in the person of Supreme Court judge Willie Young, who has joined the apparent pile-on against Callinicos. And Stuff reports that an “anti-violence advocacy group” – none of whom are identified – is asking how the Family Court judge will be made accountable for actions relating to the case in which the woman named as Mrs P was later found to have been wrongly convicted of perjury.

Citing leaked documents, Stuff quotes from a letter to Ritchie in which Justice Young reportedly said he had been providing advice to the Heads of Bench about Callinicos since April.

Young said there seemed to be a pattern of conduct by Callinicos and those on the receiving end “considered, understandably, that they had been bullied”. He had read transcripts from the Mrs P and Moana cases and saw the intervention of Judge Callinicos as excessive, partisan and demeaning.

The leaked documents also reveal, according to Stuff, that Callinicos refused to meet the heads of bench, insisting instead that his lawyers talk to the Chief Justice, Dame Helen Winkelmann.

Ritchie has now kicked the problem upstairs by referring it to Winkelmann and says he’s confident the circumstances will be subjected to “appropriate scrutiny”. In the meantime, the Callinicos affair raises important issues.

From the outside, it looks as if the judicial establishment is out to make an example of Callinicos, who’s acknowledged as tough and direct in court. The aim might not be to discourage other judges from rocking the boat, but that's likely to be the outcome.

There’s also a discomforting impression that the case has been tainted by ideological considerations. Callinicos first made himself unpopular with his involvement in the Mrs P case, which has a long and complicated history, and now he’s a target. He has made the dangerous mistake of (1) antagonising activist women’s groups and (2) siding with a Pakeha couple against Oranga Tamariki and the local iwi.

On a broader level, the controversy raises crucial questions – not for the first time – about judicial independence from political influence and about the opacity of the process by which judges are appointed and held to account. We are entitled to assume that members of the judiciary – including those at the very top – are chosen for the right reasons, and that they are immune to ideological and political currents. But are they? Cases like this may cause people to wonder.

Karl du Fresne, a freelance journalist, is the former editor of The Dominion newspaper. He blogs at karldufresne.blogspot.co.nz.