The freedom to criticise judicial decisions is a fundamental right in a free society, the New Zealand Bar Association says
The New Zealand Bar Association (NZBA) has welcomed the decision of the New Zealand Law Society’s National Standards Committee to take no further action against lawyer Catriona MacLennan.
“The freedom to criticise judicial decisions is a fundamental rights in a free society and an important means of protecting the rule of law,” said Clive Elliott QC, NZBA president. “Lawyers should speak out when they see injustice in our system and should not be discouraged from doing so. Every person, including barristers, has the right to voice their concerns about judges who may express views that are not aligned with a fair and progressive community seeking equality and diversity. Lawyers are uniquely placed to comment upon the application of laws by judges, and should be able to criticise judicial decision-making within established parameters.”
The committee opened an investigation after the barrister made public statements criticising Judge John Brandts-Giesen’s discharge without conviction of a Queenstown man who assaulted his wife, his daughter, and a male friend.
The assault happened after the 58-year-old man saw a text message exchange between his wife and his friend. The two had declared their love for each other.
The judge said the situation does the wife and the man “no credit.” He described the assault as “nasty,” but said “there would be many people who would have done exactly” as the man did, “even though it may be against the law to do so.”
“I consider that the consequences of a conviction are out of all proportion to what happened on this occasion,” Brandts-Giesen said.
MacLennan said that it is “inappropriate” for the judge to “continue sitting on the bench.”
“His reported comments and the sentence imposed display a complete lack of understanding of domestic violence,” she said. “He victim-blames and minimises assaults on three people.”
A member of the public complained about MacLennan’s comments, prompting a standards committee investigation. However, the committee accepted that lawyers can express their views on the performance of judges, said Mary Ollivier, acting executive director of the Law Society.
Nonetheless, lawyers must be considered and not cross a line that would cause the public to lose confidence in the role of the judiciary and the role judges play in the administration of justice.
“The committee did not consider that Ms MacLennan’s comments had crossed that line. Her experience as an advocate for victims of domestic violence and the sentiment in which the comments were made were factors in the decision,” she said.
The NZBA echoes the position, saying that while barristers have the right to comment, they do have the added responsibility of making comments that are measured and informed. They must also speak up in a way that upholds the court processes, public confidence in the judiciary, and respect for the rule of law.
“As with any fundamental right, the right to freedom of expression can be appropriately balanced against other fundamental principles for a modern democratic society. To that end, it is also crucial that any comments are made with the necessary context to ensure accuracy and regard to any ongoing judicial processes, such as appeals,” the NZBA said.
The High Court has overturned the judge’s ruling and the man is to be re-sentenced.
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