It will not be until December, when the article on the Lombard case by retired judge Ted Thomas is finally published, that anyone one can assess whether Thomas is correct to conclude that the convictions of Sir Douglas Graham, Bill Jeffries and the other Lombard directors have been a serious miscarriage of justice. It will take even longer for this case – now on appeal – to be heard, to see whether the courts come to see the evidence in the same light. This morning’s RNZ interviews with Thomas and Attorney-General Chris Finlayson raised a quite separate matter – namely, whether retired senior judges should ever comment critically on judgements rendered by courts on which they once sat. Thomas seemed to be conceding it should not be a common event for retired judges to do so, but that when convictions seemed to be so “egregiously wrong” (RNZ presenter Geoff Robinson’s term) then he, at least, felt compelled to speak out.
Finlayson not only disagreed, but seemed to be defining the unwritten convention involved in absolute terms. In the snide fashion that often marks Finlayson’s contributions to political debate, he claimed that Thomas was conceding that an absolute convention – of lifelong silence – exists, but that it shouldn’t apply to him, and that Thomas routinely saw himself as a “knight in shining armour”, as shown by Thomas’ prior activism over the Wilson case and the GCSB Bill. In sum, Finlayson not only personalised the issue, but distorted what Thomas had actually said.
Thomas’ interpretation of the convention is that critical commentary should be uncommon but can (and presumably should) be exercised when an “egregious” wrong is seen to have been committed. He cited the fact that it had been ten years since he had served in our higher courts on any regular basis, seven years since he had served in any temporary basis on the Supreme Court, and said that he now occupied a position as a legal academic – a post where critical commentary on court judgements is a routine occurrence. He freely discussed with Geoff Robinson his prior advisory role with the defence team on the Lombard case – and presumably, readers of his article will eventually weigh that involvement when reading his argument.
It was hard to recognise this nuanced, conditional reading of the “convention” in Finlayson’s response. Listening to the Attorney-General, his reading of the convention seemed to be that retired judges should never comment critically on court decisions, no matter how long since they served actively on the bench, no matter what academic post they subsequently hold, and regardless of the facts of the case in question. People talk jokingly about the “legal Mafia” – but on RNZ this morning, Finlayson seemed to be taking that quite literally, as if senior judges have taken a pledge of “omerta” that obliges ever afterwards, to never comment in public about verdicts rendered by The Firm.
Surely, that is not a defensible position. One can quibble with the timing of the publication of Thomas’ article – while the case is still on appeal – but not on his right to write and publish such an article. At a reputed 40 pages of learned to and fro in an article published in a legal journal, it isn’t as if Thomas has gone racing off to the tabloids. I have no idea whether he is right about the Lombard case. In precis, his argument seems to be that the court found the relevant document in the Lombard case to be untrue not because of what it contained but because of what it omitted – yet as a former Catholic that seems quite appropriate to me, given that the Church (and the state) are justified to treat sins of omission just as harshly as sins of commission.
Thomas however, does have an impressive track record in his public commentary to date. That’s why it was such an own goal for Finlayson to bring up the Wilson case (which involved the propriety of judges declaring conflicts of interest) and the GCSB Bill, which the Law Society has also opposed, for the same reasons as Thomas. On those occasions, Thomas’ activism has been amply vindicated. For decades, he has been someone willing to speak up in the face of apparent injustice, and to let the cards fall where they may. (In this respect, he has been our equivalent of former justice Michael Kirby in Australia.) In doing so, his motivation seems to have been to protect and to promote the credibility of the courts. Amid the general public, I would argue that credibility is better maintained by people like him, rather than by the facade of infallibility that Chris Finlayson appears to prefer, in which judges agree to cover each other’s tracks via a self-imposed oath of lifelong silence.