I've been asked if there is anything out of the ordinary in the elevation of Hon Justice Mark Cooper to the Court of Appeal, Hon Justice Ellen France to the presidency of that court, and the shift of current Court of Appeal President Hon Justice Sir Mark O'Regan upstairs to the Supreme Court.
Justice Cooper is considered to have chaired the Canterbury Earthquakes Royal Commission very well.
I assume that Justice France is expected to be a good court administrator, because I've not heard particular comment about her judgments, good or bad. I criticised her long ago reasoning in the decision that the free speech character of flag burning trumped the terms of a specific statute forbidding desecration of our flag. But judges work where decisions are hard and being considered to have got things wrong occasionally goes with the job.
Justice O'Regan's move after a short time as president of the Court of Appeal is the most significant.
He could help transform the Supreme Court into the leading court it should be. At present practitioners commonly expect better decisions from the Court of Appeal, though of course there are exceptions.
There is a range of reasons for a comparative lack of respect for the Supreme Court. Among them has been an apparent lack of engagement by its members with each other's reasoning in decisions.
Together they've contributed confusion instead of clarity to what the court below has said. It looks like a problem of organisation and willingness to be lead, not a problem of individual quality. Indeed the Supreme Court will lose a very good judge when the Hon Justice McGrath leaves early next year.
But overall there has been a collective judicial failure at the highest levels to accept that they have both the responsibility and the power to deal with the disgraceful delay, expense and ineffectiveness of many justice processes.
Take the routine decisions this week in the Blessie Gotingco murder case. It is striking that there has been only resigned public acceptance instead of outrage over three absurdities in the system:
a) the trial being set down for March next year. Why? When I began practice, murder trials were routinely completed, with all appeal rights over within 6 months of the murder, as the late Greg KIng confirmed when I challenged him to check my recollection. What about the injustice of 9 months in custody if the accused is innocent? He will not get bail. There are many excuses for such delays. The judges call them reasons. Whatever they are, they have multiplied on this generation's watch. There is enormous self indulgence in the courts' leisurely pandering to offenders and lawyers. Parliament cannot discipline these system insiders with constitutional safety. Constitutionally the courts should be self-cleansing. Instead this generation of judges mumbles complaints about interference when Ministers try with limited effect to tell them the public will not tolerate more resources applied while the output is less and less satisfaction that justice is being done.
b) the accused's name is suppressed till the trial. Why? It is widely known. Anyone in the Court when he appeared could readily identify him. When his trial commences the jury members will quickly learn from their smart phones his record and the justice system failures with respect to him. Or they'll get it from google on their first night home. The courts have long known that the days are ended when they could fondly believe that jurors were empty little black boxes, taking account only of data drip-fed into them by the court. Our times are more comparable with when juries were established. They were originally a sample of neighbours who were likely to know enough of the accused already to decide on his veracity.
c) it is likely that the accused should never have been free to commit the murder. Many violent offenses are committed by people who would have been locked up if judges were obeying the statutory requirement that the worst offenders receive the maximum sentence, and were applying the full sentencing range in a normal curve below that. It is likely that he would not have been out either, if they had not acquiesced in the parole system making a mockery of their sentencing
The Gotingco hearing this week is not so far an example of indifference by the courts to wasted expense, but that could yet come.
I hope that judges like William Young J, and Sir Mark O'Regan will use their time at the top to take charge and transform the parts of the system within their control. They must restore faith in its common sense. A really simple start could be to pick up a suggestion I've made often, returning to what was routine when I started practice. That is to increase substantially the sentences of people who make insolent appeals. The lower courts and the victims would soon be free from the burden of watching ritual meritless appeals, if the courts appropriately treated offenders for their lack of remorse in not humbly serving the sentences they are given.
A great start to restoring confidence in the courts would be for Mr Ross, the fraudster, to find his sentence increased to the maximum, with a 100% non-parole period. .