Blackstone Chambers Telephone (04) 473 1952

DR TONY ELLIS 3rd Floor Fax (04) 499 7545

BARRISTER 82 Willis Street Email ellist@ihug.co.nz
LL.B., LL.M, M.PHIL, FCIS PO Box 24347 http://www.tonyellis.co.nz
Wellington 6142

The Judicial Conduct Commissioner

JudicialConduct@jcc.govt.nz

The Chief Justice and Justice William Young

(via Registrar Supreme Court)
kieron.mccarron@courts.govt.nz for the Chief Justice and Justice William Young

For information only to:

David Parker
Attorney-General
D.Parker@ministers.govt.nz

Judge Callinicos
napier.dc@justice.govt.nz for Judge Callinicos

copy to:
marty.sharpe@stuff.co.nz

4 October 2021

Dear Sir

Complaint regarding Justice William Young and Chief Justice Winkelmann:

Breach of Judicial Independence

Introduction
1. I am in receipt of your decision of 29 September 2021, in response to
my and others’ complaints, regarding the alleged unlawful lobbying of
Judge Callinicos.
2. I was more than surprised with your decision, which I consider
irrevocably compromised your own independence.
3. My complaint about Justice William Young, and Chief Justice
Winkelmann addresses their actions in response to your investigation,
and their actions generally with respect to the alleged unlawful
lobbying of Judge Callinicos:
1) Judge Callinicos sought the assistance of the Chief Justice in
protecting his independence from the influence he considered
was being improperly placed on him. Chief Justice Winkelmann
and Justice William Young met with Judge Callinicos’s lawyers in
 response to this request, but did not advise them Justice William
Young had been involved in making a finding that Judge
Callinicos had bullied witnesses, and that the Chief Justice
concurred.
2) Justice William Young, in reaching a conclusion that Judge
Callinicos had made comments that were disproportionate and
inappropriate, made gratuitous criticisms, and engaged in what
appears to be bullying, following an investigation which did not
seek input from Judge Callinicos, and taking no action to seek
such input himself, this undermined judicial independence.
3) The Chief Justice’s concurrence compounded this error.
4. As these complaints relate to a decision you have made, and a
process you have followed, I begin by addressing your need to recuse
yourself from considering this complaint.
Your recusal
5. You should recuse yourself from the handling of this new complaint,
and pass it your Deputy, if that raises any problems, the Government,
will need to appoint an alternate.
6. You are more than aware of Saxmere, bias and its appearance.
7. Your approach has created not just actual bias, or its appearance, but
worse created a scandal not seen since Edwards,1 and has now
implicated not only the two original heads of bench, the Chief District
Court Judge, and the Principal Family Court Judge, but now also the
Chief Justice, and Justice William Young, NZ’s second highest ranked
Supreme Court Judge as well.
8. If my original complaint warranted referral to the Chief Justice as you
referred it, this complaint is of a different and greater magnitude on the
issue of judicial independence, and is of profound constitutional
importance.
9. There is much now in the public arena which does not now require a
detailed recusal application. Put simply you ignored the basic
principles of natural justice, and either took sides or had that
appearance. See R v Taito.2

But the procedural rights of appellants under the

legislation served an instrumental role in the sense of
helping to ensure correct decisions on the substance of
cases: Craig, Administrative Law (4th ed, 1999), p 402.
Decisions that the appeals were in truth unmeritorious
could only be made after observance of procedural due
process. Unfortunately, the system failed this basic test.

1
Buckley (Attorney General New Zealand) v Edwards (New Zealand) [1892] UKPC 23
(21 May 1892).
2
R v Taito 3 NZLR 577, para 14.

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10. Your approach also failed the basic test.
11. For example, David Farrar, reported:3

Here’s the incredible thing. The JCC never interviewed

or sought comment from Judge Callinicos. This is the
Judge who said he regarded the approaches as
inappropriate and a breach of judicial independence.

And the JCC did not even talk to him. He just talked to
the two bench heads. I’m sorry, but that destroys any
credibility in my eyes.

And the suggestion it was only about his in-court conduct

is risible, as if so they could raise that after the case was
decided. But they intervened while the case was live.

12. Karl Du Fresne, said:4

It seems to be open season on Judge Callinicos

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…

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.

3
Kiwiblog “A terrible decision by the Judicial Conduct Commissioner”
https://www.kiwiblog.co.nz/2021/10/a_terrible_decision_by_the_judicial_conduct_com
missioner.html
4
https://karldufresne.blogspot.com/2021/10/it-seems-to-be-open-season-on-judge.html

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13. As I understand it, Judge Callinicos has said:

That is an investigation that I knew nothing of, was never

contacted about, let alone invited for input. If I had been
so invited, I would have produced to the JCC the
misleading and bullying correspondence from HOB’s.
JCC received scathing letters about me from Taumaunu,
Moran and an unsolicited letter from Willy Young…

What this has done is mean that, in effect, JCC Ritchie’s

office have predetermined my guilt, without the
complaint being about me, without me knowing of the
complaint and without me being heard in answer to the
scathing criticisms of me. Worse, the dumping of this
unilateral crap into public domain compounds the
injustice as I have no recourse in the investigation, or in
the public eye.

14. The same could be said of Justice William Young, and the Chief
Justice, predetermining Judge Callinicos’s guilt without hearing from
him, and without a charge. Should litigation follow, they are obviously
disqualified from sitting on any Supreme Court case arising, this is
unacceptable judicial behaviour.
Comments from Judge Callinicos and the Rule of Law
15. Whilst more is coming in the public arena, I understand the Judge has
said:

Throughout this bitter saga I have now had 60 judges (of

various benches) make direct contact to convey their
support. I am also hearing that the actions of our
supposed leaders (from the top and into District Court)
has sent shivers of fear through at least the District
Court. Some new judges have told me they feel
physically nauseous and fear as to what will happen if
they are not seen to tow the line on certain agenda.

There is a very good blog by Karl du Fresne (just google

search his name) about how the higher echelons now do
not have to overtly intrude as they did to me, as the
repercussions will impact how judges of various
benches may approach matters in future, may not stick
so firmly to what the facts and law might say and may
not confront dishonest evidence when they come across
it.

16. If that comment, attributed to Judge Callinicos is true, and this time
your office will no doubt check with him, judicial independence is
indeed under threat. The Ministry of Justice website quotes:5

An aspect of the rule of law is access to courts that are

independent and impartial. Independence of the

5
https://www.courtsofnz.govt.nz/about-the-judiciary/overview/

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 Judiciary exists to ensure that the individual judge when
sitting is subject only to law.

Major Threat to Judicial Independence and the Rule of Law

17. Sixty judges supporting Judge Callinicos is a major rift in judicial ranks.
That new judges are in fear of their independence is more than
worrying, the very essence of the rule of law is under attack.
18. The letter from Justice Young you provided to me with your 29
September 2021 decision, indicated that both he, and the Chief
Justice, who concurred6 thought Judge Callinicos was a bully.
19. Whether or not that is true, is not a matter for either of them, or both,
to conclude, that would be a matter for your office to investigate, and
make a determination on.
20. My complaint was not about Judge Callinicos, but the Heads of Bench.
Chief Justice and Justice Young usurp powers of the JCC
21. As has many times be said by distinguished jurists no matter how high
you are, the law is higher.7
22. It is not for either of the Chief Justice, or Justice Young, to usurp the
role of the JCC, which they appear to have done.
23. I understand Judge Callinicos to have sought help from interference
by the Heads of Bench.
24. Instead, William Young J, with the concurrence of the Chief Justice,
assisted the Heads of Bench without notifying Judge Callinicos.

On 3 June my lawyers wrote to CJ Winkelmann for her

assistance to intervene to stop the intrusions into the live
case. It took until 29 June for CJ to meet my lawyers.
Our aim was simply to discuss a pathway to allow me to
conclude my part heard case without such dangerous
intrusions. When they met, Willy Young, CJ’s right-hand
man was present. The meeting was short, it was clear
the Supreme Court Judges (SCJs) had already decided
what to do. No direct intervention by the CJ was going to
occur, but she would get Taumaunu and Moran
withdrawn from dealing with me and I would work with a
delegate acceptable to me. That in itself is probably
unprecedented. While it was not the level of intervention
we desired, we had little choice.

What was significant was that neither Winkelmann nor

Young made any disclosure to my lawyers of the now

6
Letter from William Young J to JCC 3 September 2021: I should add the Chief Justice,
who was fully consulted throughout, shared, and continues to share, my assessment of
the situation.
7
eg Justice Bhagwati, Chief Justice of India, and Lord Denning, usually attributed to Sir
Edward Coke.

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 known fact that they had both been working with the
HOBs since late April to address my serious behaviours
in the now infamous “Mrs P” case. The involvement of
SCJ’s was only revealed on Wednesday 29 September
from the leaked decision and correspondences from the
Judicial Conduct Commissioner’s investigation into
complaints made by lawyers against Taumaunu and
Moran’s intrusions into my live case. It was not a
complaint against me.

25. If what Judge Callinicos says is correct, that behaviour undermines

confidence in the administration of justice.
26. Where, during the course of an investigation into one judicial officer,
the Judicial Conduct Commissioner becomes aware of a potential
issue with respect to a second judicial officer, a new investigation into
that second judge should be commenced. As part of that investigation,
if it goes beyond the initial consideration, the second judge should be
contacted and invited to comment before any conclusions are reached.
27. When this does not occur, and a conclusion has been made without
the judge being accorded natural justice, if the result is a referral to a
Head of Bench, or the Chief Justice, it is incumbent on whoever
receives that referral to ensure that natural justice is accorded.
28. There are two obvious ways this could be ensured:
1) The Judge to whom your conclusion has been referred, upon
realising that the finding has been made without input from the
Judge to whom it refers, could refer the matter back to the JCC
(or Deputy JCC) for further consideration;
2) Alternatively, before reaching any conclusions, they could
themselves accord that opportunity for comment. The failure to
do one of these things, and the reaching of further conclusions
without according natural justice to the judge, breaches judicial
independence.
29. As Justice William Young found:

I also went through the documents associated with the

complaints that Judge Callinicos had made to the Law
Society about the Oranga Tamariki lawyers. I came to
the view that they were disproportionate and
inappropriate. I was also concerned at what I saw as
gratuitous criticism made by Judge Callinicos in a
judgment of 1 May 2020 that is connected to the subject
matter of the Law Society complaints.

There seemed to be a pattern of conduct. Those on the

receiving end of this conduct considered,
understandably, that they had been bullied.

30. Your job was to independently review comments such as this, not to

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 kowtow to a senior Judge.
31. Judge Callinicos says:

It seemed unimportant to him that, after 15 months of

intense investigation, the Law Society had actually
upheld both my complaints! Obviously, he knows better
than the investigators who dealt with the case.

32. A well-informed independent observer would ask the question: who

are the bullies here, Judge Callinicos, or Justice William Young, and
the Chief Justice?
33. Judge Callinicos muses:

Where to from here? Well, I predict the drive will now be

on to get a JCC investigation of me in “Moana” case, get
Ritchie to recommend a conduct panel, fill it with judges
who will sing the party song and sack me.

34. We are a way off that conclusion as yet.

Conclusion
35. A fresh complaint is made that Justice William Young and the Chief
Justice, have now compromised judicial independence or its
appearance, and the administration of justice of its appearance.
36. Your office, but not you, should investigate.
37. As this issue is of major public importance, and is already in the public
arena there is a need for transparency. You will note this letter is
copied to the media.

Yours faithfully

DR TONY ELLIS
BARRISTER