Justice Terence Arnold and Queen's Counsel Stephen Mills took a sailing holiday together while Colin Craig's defamation case was being considered by the Supreme Court.
Justice Terence Arnold and Queen's Counsel Stephen Mills took a sailing holiday together while Colin Craig's defamation case was being considered by the Supreme Court.
EDITORIAL
A decision by a Queen's Counsel and a Supreme Court justice to take a holiday together - while the judge was considering an appeal the QC was contesting - placed everyone in an awkward position.
Justice Terence Arnold was one of five Supreme Court judges who heard an appeallast September in the defamation saga involving former Conservative Party leader Colin Craig and Jordan Williams.
Several months after the hearing, Craig's lawyer Stephen Mills, QC, called Williams' lawyer Peter McKnight to explain he had booked a sailing trip with Justice Arnold over summer.
McKnight, after consulting with Williams, gave consent for the trip to go ahead, as first reported by the Herald two weeks ago.
Then in April, the Supreme Court ruled in favour of Craig and ordered a new trial be held. The judges were split 3-2, with Justice Arnold siding with the majority.
While there was no suggestion Justice Arnold and Mills discussed the case while on holiday, Williams' legal team took the rare step of asking for the judgment to be "recalled" - a request flatly rejected by the Supreme Court last week.
Three law professors told the Herald that McKnight was put into an "awkward" position when Mills sought his approval.
It is difficult to see who wasn't left in an awkward position by this chain of events - none the least the justice, the QC, Craig, Williams and his counsel - but also the very public the courts are serving.
Judicial guidelines state a judge should be careful to avoid "direct contact" with lawyers during active cases. In this case, however, the Supreme Court says it doesn't matter as the other counsel consented.
Jordan Williams talks to media outside the High Court in Auckland in 2016, while his lawyer Peter McKnight, right, watches. Photo / Nick Reed
But as the academics - and Jordan Williams - points out: Who is going to say no to such a request? Few would leap at the chance to upset a judge. The request for consent put these parties in an invidious position. There should be a process followed and there is a process.
Supreme Court conflict of interest guidelines, released in 2017 by recently retired Chief Justice Dame Sian Elias, state once an appeal to the Supreme Court has been sought, each judge has a duty to tell their judicial peers about any "known circumstances which may give rise to a concern among the litigants, or the public".
If, after discussing the matter with the other judges, the judge feels he or she cannot act impartially (or a fair-minded observer might reach that view), the judge will decide not to sit on the appeal.
If the judge feels they can be impartial, they will issue a minute to the parties involved in the litigation to draw their attention to the circumstances and invite any concerns to be raised.
If an objection is made, a decision on whether or not the judge should stand aside will be made by the other Supreme Court judges.
The problem is, we don't know whether Justice Arnold discussed the trip before the hearing. The Supreme Court made a point of not asking Arnold.
New Zealand is too small, particularly in legal circles. When something like this happens, it's a dreadful look. No one is questioning the integrity of anyone involved, nor the decisions made in this case.
More care needs to be taken however, for the sake of perception among fair-minded observers. After all, justice must be seen to be done.
