A prominent lawyer is calling for a judicial complaints system that addresses bullying and harassment of witnesses by our judges. Bonnie Sumner and Melanie Reid report
The lawyer at the centre of the watershed 2019 Hastings baby uplift case has told Newsroom she was shocked at the treatment of two women - both Oranga Tamariki social workers - by a judge in a recent court hearing.
Janet Mason represented the whānau in the Hastings case when Oranga Tamariki attempted to remove a newborn from hospital. She is now representing another mother at the Family Court in Napier.
The case concerns a child, who is Māori and has been in the care of Pākehā caregivers for three years. Oranga Tamariki are seeking to change the arrangement in line with its latest policy and place the child with the same caregivers who also have the child’s sibling. These caregivers and the siblings whakapapa to the same iwi.
This process has become known as the ‘reverse uplift’, where tamariki Māori who have earlier been placed with non-Māori families by Oranga Tamariki are now being returned to Māori, Iwi and whānau caregivers by the agency in an attempt to correct its erroneous placements of tamariki Māori with non-kin.
(Newsroom covered this process last year and questioned the methods of transition being used by Oranga Tamariki and its effects on children, however our video investigation was later ordered removed from our website by a High Court judge, at the behest of Crown Law.)
In the current case, the child’s Pākehā caregivers have taken Oranga Tamariki to court to apply for full custody of the child.
Mason is representing the child’s mother. Oranga Tamariki, the Pākehā couple, the child, and the Kahungunu whānau, all have their own lawyers.
As part of the initial Family Court hearing in March, Oranga Tamariki social workers involved in the case were called to give evidence before Judge Peter Callinicos.
Mason says Judge Callinicos’ questioning of the social workers was some of the most shocking she has ever witnessed in a courtroom, describing it as “very extreme”. She understands one of the women was traumatised by the experience and has since left her job with the agency.
“It was harsh. [One of the women] wasn’t able to finish her answers to questions, she was cut off. She was practically sobbing the whole time. She was in the box, just crying. It went on for a very long time. At least a couple of hours.”
"I would have expected that when she started crying that we would have had a break, to allow her to compose herself, but she wasn’t given a break, it just went on and on and on.”
Mason says if the social workers had been her witnesses, she would have intervened..
“Of course [the social worker] should be questioned, but there’s a manner of questioning that very quickly can descend into bullying.
“At the end of the day, the justice system is about getting the truth out into the court so that everyone can understand what has occurred. And I would argue that you don’t have to reduce a person to tears and break them in that way before anything comes out. I just don’t agree with that. And I don’t think that’s necessary. There are other ways of questioning to get to the bottom of the issue.”
She says if the general public saw an older man addressing a younger woman like that they would be shocked, and that this highlights the need for a “proper” judicial complaints process.
“It’s not the kind of discourse you would expect anywhere. It’s not the way that anyone would consider acceptable to be spoken to in the workplace. I think that’s really why we need some kind of complaints system.”
Recusal declined
It wasn't just Mason who found the courtroom exchanges to be inappropriate.
Following the March hearing, then-acting chief executive of Oranga Tamariki, Sir Wira Gardner, contacted the District and Family Court Heads of Bench with concerns about Judge Callinicos’ in-court behaviour.
According to a Stuff report, this included accusations that Judge Callinicos “bullied” Oranga Tamariki staff giving evidence.
The Heads of Bench, Chief District Court Judge Heemi Taumaunu and Principal Family Court Judge Jackie Moran, then conveyed the concerns to Judge Callinicos, who responded by saying their communication on the matter would be “a breach of judicial independence”.
The judge then reported the concerns to the parties to the hearing and asked whether any wanted to make an application for his recusal. Mason subsequently did.
“Because a complaint had gone to the judiciary from the chief executive of Oranga Tamariki about the judge, I thought that that gave rise to a situation of bias. In particular, this case was quite an important one for the Iwi, and had significant consequences nationally for many Iwi who were wanting their Māori children who had previously been placed into non-kin, non-Māori homes by Oranga Tamariki to be returned into the care of their iwi, hapu and whānau. There was a lot at stake,” says Mason.
Callinicos ruled that the possibility of bias raised by Mason was “remote, and at some distance from the real possibility required by law”, and did not recuse himself from the case.
However, during the second half of the hearing of the case in July, Mason says he told all parties they “needed to be a lot more sensitive with their questioning”.
“I actually got told off with some of my questioning, that it was too harsh. But the nature of that second hearing was not like the first one.”
In order to maintain judicial independence, there is a clear delineation between Parliament and the Government, and the judiciary.
As covered in the Guidelines for Judicial Conduct 2019, “Impartiality is the essential quality required of the judge. That is made explicit by the judicial oath which requires judges to act 'without fear or favour, affection or ill-will'.”
As part of maintaining impartiality, the guidelines stress the judiciary maintains a standard of behaviour in court that “does not diminish the confidence of litigants, and the public in general, in the ability, integrity, impartiality and independence of the judge.”
The guidelines also emphasis the importance of personal attributes such as courtesy, patience and tolerance – and not bullying:
“The entitlement of everyone who comes to court, whether counsel, litigants or witnesses, is to be treated in a way that respects their dignity. Bullying by the judge is unacceptable. Judges must conduct themselves with courtesy to all and must require similar courtesy from those appearing in court.”
Not the first time
Newsroom Investigates has previously reported on Judge Callinicos, and on the lack of a comprehensive judicial complaints system.
A woman who appeared in a Family Court hearing brought by her ex-husband over a challenge to a separation of assets told Newsroom earlier this year that comments about her character by Judge Callinicos, including that she was “inherently dishonest”, manipulative and devious, had amounted to “sustained hounding and bullying”.
The judge found for her ex-husband, awarding him further assets, and he won a large award of costs, ultimately leading to her bankruptcy.
The woman was then wrongly convicted by another judge of perjury over a document and sentenced to a year’s home detention, ending her career. This conviction was quashed by the Court of Appeal, in which three justices declared her conviction a miscarriage of justice and questioned the reasoning and comments by the lower court judges.
In Aotearoa, the process for questioning rulings or judgments is carried out through the court appeals process.
Complaints about judicial conduct, however, are directed through the Judicial Conduct Commissioner (JCC) which, with the Judicial Conduct Panel Act, was established by the government in 2004 following a damning United Nations Commission on Human Rights report into the country's lack of procedure to discipline judges for misconduct.
But, as already reported by Newsroom, this law makes no provision for any formal disciplining of judges, barring the extreme action of removing a judge from office – an action that has never been taken.
More than 3,200 complaints have been made about New Zealand judges since 2005, yet there have only been two occasions in which formal discipline was recommended.
Mason says Judge Callinicos’ treatment of the social workers raises the question of what recourse people then have to hold judges to account for the way they treat witnesses and others in the courtroom.
“It raises these other issues about the accountability of the judiciary and especially in relation to fairness and bullying, because there’s no other place to go. There’s been a complaint for a long time that we in New Zealand don’t have a proper complaints system for judges.”
It’s not just witnesses on the stand who are affected by this kind of treatment. Mason points to a survey of lawyers conducted in 2018 in which almost 90 percent of criminal lawyers said they had witnessed or been the subject of bullying or harassment within the profession - and in 65 percent of cases it was judges meting out the bullying or harassment.
Yet fewer than 17 percent of respondents made an official complaint, predominantly due to fear of repercussions or a belief it would not make a difference.
“The JCC look into much more serious things like conflict of interest. It’s pretty ineffective when it comes to complaints about bullying and the way witnesses and perhaps lawyers are treated. We shouldn’t have a system where somehow it can be hundreds and hundreds of complaints about judges, but nothing gets done about them,” says Mason.
She says everyone should be called to account for these behaviours, “but we just don't have any process.”
The Napier case ended in July and a decision is expected shortly.
