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Why judge abandoned Dominion Finance trial

Justice Pamela Andrews has abandoned the High Court trial of three Dominion Finance directors – three days in – over a career crossover with defendant Robert Whale.

They were both partners at law firm Kensington Swan between 1996 and 2001.

The judge alone trial of Dominion Finance boss Paul Cropp, director Robert Barry Whale and a third man with name suppression began on Monday at Auckland High Court.

Before the trial began, Justice Andrews raised her concern that her previous job as a partner of law firm Kensington Swan had also crossed paths with a witness due to be called to testify in the trial.

The witness is a well-known, high-profile professional company director who held a position at Kensington Swan.

Justice Andrews made an order prohibiting publication of any reference to the man, who – despite the judge's order – was named on the Stuff website this afternoon and his connection to the trial detailed.

When Justice Andrews raised her concern about it in chambers on Monday, lawyers on both sides agreed that her link to the man would not pose a conflict of interest.

Yesterday, however, Justice Andrews became aware of another potential conflict of interest with defendant Mr Whale, a partner at Kensington Swan between 1996 and 2001.

She stepped down from hearing the trial before proceedings entered a third day today.

A statement has been released, in which Justice Andrews says she must not continue to try the case.

“Notwithstanding that the legal partnership with Mr Whale ceased in 2001, any legal partnership requires, as between the partners, trust and good faith,” Justice Andrews said.

“For that reason I have concluded that I must not continue to try this case.

“I have no doubt that, had I recalled the partnership when I was assigned to this trial, I would have declined to try the case for the reasons I have set out above.”

A new trial will begin on Monday, before Justice Graham Lang.

This means Crown prosecutor Brian Dickey will have to deliver his opening statements again and recall the first of the Crown's witnesses, including ex-Kiwi league player Matthew Ridge, who gave written evidence to the trial on Monday.

gbond@nbr.co.nz

COMMENT by Jock Anderson: 

Having already clocked up a tidy sum on Court and lawyer time on a trial which has to start all over again, it would have served Justice Andrews better if she had considered more closely any potential for conflict before this aborted trial began.

Did she not get any paperwork in advance before the trial began?

Did she not know a defendant and a witness held key positions in the law firm she also previously worked in?

Did their names not ring any warning bell earlier? 

Had she forgotten?

It seems the judge – now more alert – has done the right thing, but not without considerable inconvenience and public cost.

janderson@nbr.co.nz

More by Georgina Bond

Comments and questions
28

The Judicial Conduct Commissioner should be made aware of this farce. What a waste of money and time.

It seems that procedures in our justice system need tidying up and it would be useful for the Chief Justice to spend some time in this area rather that wasting it on trying to develop policy which is the perogative of Government, not the judiciary.
liberte

We had a high court case where the judge and the defendant's lawyer had also worked at together at Kensington Swan and it was my perception that the judge had a strong bias toward his old firm. The old boys' club within the legal fraternity is alive and well. Good on Justice Andrews for withdrawing, albeit late and with a memory unbecoming a High Court judge.

Yet another of those incestuous situations which bedevil the intermingled judiciary.....e.g. the job-hopping legal careerists change firms here quicker and more frequently than coaches in the Black Caps.

What a lack of competence taking three days to realise she was conflicted.

Agreed...sounds like she's well qualified for the role. It's indicative of the judiciary that we have come to expect - after all, we tolerate this nonsense year after year, don't we?

A judge who shows this sort of incompetence should be removed. The judges of this country are getting more pathetic by the day.

Agreed. Unfortunately unless enough people make complaints about judges that some of them stick, there is very little avenue for their removal.

This is disgraceful. Judge Andrews knew full well who the defendants were before the case even got a hearing date and if she did not consider a conflict of interest when she was scheduled to sit on the bench for the hearing, well shame on her. Another waste of taxpayer money. This sort of nonsense has to stop.

Plus who pays wasted legal fees?

Imagine if a defendent had had not disclosed a special relationship in the court room for three days. All manner of allegations and deception would be read into it. A judge does it and there is no repercussion.

Agreed. It's moments like these, dare I say it, you need the likes of Winston Peters to get it broadcast, on TV and out to the masses and it may force a full investigation instead of the old boys' network protecting her honour.

Hopefully, the judge is sufficiently well educated to be able to read and had the opportunity to read the documents regarding the status of the case before she sat on the bench. This is another example of the sheer laziness and incompetence of our judiciary. She should be sacked and the cost of the abandoned case charged to her no doubt enormous pension scheme. Who disciplines the judges?

The Judicial Conduct Commissioner apparently.

Seems The PM's "Selected memory loss syndrome" is spreading among the top of the food chain.

"I have no doubt that, had I recalled the partnership when I was assigned to this trial, I would have declined to try the case for the reasons I have set out above.”

Appalling conduct from someone whom should know better. To claim she had no recollection of the partenership is an insult to our collective intelligence. Yet another example of why our judiciary are held in such low esteem nowadays.

It would be appropriate in this instance for the Law Society to comment officially here - it is their role to ensure public confidence in their profession isn't it?

Particularly if the initial scant regard to a potential conflict of interest mentioned in this article is correct.

Yes it would be good if the Law Society would make comment, alas I doubt they will cr*p in their own nest.

Does she pay back the money?
Who was it said "NZ has a legal system, not a justice system"?

Who cares who said it?
It's true , thank goodness.
You want judicial activism ad absurdum.
Justice is for the philosophy and ethics department, not the law faculty.

First, Justice Andrews' error likely won't go unpunished - this is a black eye for her and the judiciary. But the nature of the judicial disciplinary process is such that she won't be publicly raked over the coals either. There's a good reason for that - in exchange for a less public level of scrutiny, we get a depoliticised judiciary that is able to make difficult, but unpopular decisions.

And second, even if Justice Andrews hadn't put her hand up, where was the prosecutor in all this? If you thought there was a real risk of bias to you case, wouldn't you be bringing this to the Court's attention? After all, that's exactly what happened to Bill Wilson in the Supreme Court.

The disciplinary process lacks transparency. That itself erodes public confidence in the judiciary. It is central to the New Zealand problem of having bad judges making repeatedly bad decisions, but they are virtually unaccountable and in for life.

The worst of the judiciary is the family court, who conveniently wont allow participants to go public when they have been wronged, which is a further layer of secrecy and why so many bad family court judges linger in it. Companies have more rights when they have been wronged in court than families - just appalling.

If you don't like a judicial decision, you can take it higher up, by appealing it. That's a pretty transparent process for reviewing judges' performance. I think you'll find judges who keep getting rolled on appeal don't go far in their careers.

Can't really comment on the family court, save to say that, given the emotions involved, as well as the interests of the children, it's possibly not always best to have those disputes in public - but appreciate you may have had an unpleasant experience.

Going to a higher court assumes you have the money to do so. So it's not a very elegant solution for most New Zealanders, only the upper-middle classes.

There is a massive problem in the family court with incompetence. They work hand in hand with Child Youth and Family, whose incompetence is well documented, but the family court is only just starting to get the bad publicity because they hide behind a cloak of secrecy citing family privacy. There are countless families being treated appallingly.

All very well, but who pays to appeal a judicial decision, and who pays for the damage caused when a judge has erred, while waiting the appeal process?

Agree with all the above comments re the judge's lack of competence. Alas, we don't do conflicts of interest very well in NZ in all sectors. We use the small size of the market as an excuse. It's not. It's more that we like to deal with "people we know" - "the right people". We like to exclude "outsiders or new people who don't understand", etc, etc.
Time we got real and blew the whistle on issues that go on just below the surface and just off the radar screen.

Do not see what this fuss is all about. Good that they obtained this information in the early stages.

What do you think the cost of three days in court is?
What does this say about the competency of the judge?
Questions need to be asked why she disclosed so late, if the public is to maintain confidence in the judiciary.