When judges get nasty

It’s good to see the Chief Justice taking an interest in judicial bullying of counsel.

I imagine there have been judicial bullies as long as there have been courts. Bullies can usually be quite nice people, but under pressure the character flaw is revealed.

My own method for dealing with bullying judges is rather unsubtle, as this example illustrates.

I am pleased to report the whole thing was settled amicably, the judge saying that we both seemed to be having a bad day at the office.

Rights, freedoms, and elderly children

In today’s decision Attorney-General v Smith [2018] NZCA 24 the Court of Appeal observed at [47] that

“... any rights analysis must begin with the presumption that Mr Smith [a sentenced prisoner] has the common law right to wear a wig if he wishes, simply because it is not illegal to do so.”

Sometimes cases are brought on grounds which obscure basic issues. There can be few points more basic in this context than the rights of people to do things that are not unlawful. Instead of relying on that right, it seems that this case was brought alleging a breach of the New Zealand Bill of Rights Act 1990, s 14. Arguments therefore were diverted to the issues whether wig-wearing is an “expression” within the terms of that section.

The High Court had held that it is, but the Court of Appeal overruled that. In that sense, Mr Smith lost the appeal. But it is wrong to say, as our news media are currently saying, that “Murderer loses legal right to wear wig in prison”, and “Wig-wearing murderer Phillip John Smith has no rights to hairpiece, court rules”.

Indeed, as things are between the parties, the dispute is settled and the issue is moot, and the Court of Appeal only issued a judgment because the issue of the engagement of s 14 “raises an important question with potential application in other cases” (at [26]).

You may wonder, as I do, why Mr Smith should want to wear a wig, given that mature men with full heads of hair look like elderly children.