John Bowie* Looking at the seemingly endless era of poet and property manager Colin Craig’s pursuit of various lawsuits that continue to define both him and the law of defamation, we can turn to the perhaps more significant issue of how the judicial time expended on this chundering churn of litigation might have been avoided.
Those who have followed the Craig chronicles will be aware of the state of play back in 2018 when a Supreme Court case and a fishing trip broke into headlines.
The judges have attempted to stop Craig’s litigation. As journalist Alison Mau wrote last week, “He’s kept going despite judges telling him to stop.” Justice Matthew Palmer ruled that “enough is enough” when he ruled that it would be an abuse of process to permit Craig to cross examine the harried Rachel McGregor for a fourth time.
And yet – once more – we have talk of the end of this endless litigation with our own views expressed earlier that this may in fact not quite be the end we all so fervently wish for.
It brings to mind the last time Colin Craig was in the Supreme Court when he was embroiled with Jordan Williams’ almost $1.3 million judgment. Five Supreme Court judges heard the appeal and were divided.
Two of the judges said they would leave in place the jury’s verdict, while the majority said the High Court had messed matters up and that there should be a further, full trial which, like the first, would take a further four weeks’ of court time and money.
The Fishing Trip
Interestingly, Jordan Williams was ordered to pay for that problem by way of a large costs award in both the Court of Appeal and the Supreme Court, which raises questions in itself.
But the other issue that arose, among the many that these cases threw up such as issues of self representation, costs awards, the fairness of well-heeled litigants pursuing litigation as if it’s some vanity project, is a conflict question arising from the fishing trip that involved counsel for Craig and one of the majority judges in the Supreme Court.
The 10 day fishing trip with Craig’s then counsel Stephen Mills QC (pictured) and Sir Terrence Arnold received some publicity at the time. Argument had been presented in the Supreme Court and the fishing expedition occurred prior to the judgment being announced.
As Stuff reported: The decision split the judges 3-2, with Arnold in the majority who held that it was not possible to have confidence that the jury had approached its task correctly. The other two judges agreed the jury had been misdirected but did not think there was a risk of a miscarriage of justice.
The Supreme Court judgment included the unusual footnote that Mills would not go on the fishing trip had an objection been made, a matter itself that lead to some controversy between opposing counsel.
The problem, of course, is not whether counsel or the Court should entertain some objection to such matters but rather the overriding importance of maintaining that justice must be seen to be done. At all costs we should avoid the taint of banana republicanism.
As an experienced barrister wrote to us at the time, referencing the UK Pinochet case: “In the House of Lords Hoffmann sat on the Pinochet appeal. His wife worked as a volunteer for the financing arm of Amnesty International as a receptionist a few days a week . . When the connection was discovered, the judgment was set aside and the appeal re heard. Notice, first how remote the connection was. Second, notice how that is an example of apparent bias. The faintest hint is enough.”
And therein lies yet another problem in this protracted, bitterly fought litigation pandemic.
We are fortunate to have a judiciary that, mostly, is beyond reproach. Certainly that is the case in the higher echelons. However we can only surmise at to what may have occurred with the Craig litigation since that time if the outcome had been different given what has continued since that case.
Like no retrial. And quite possibly an end to the litigation that has occupied so much judicial time.
As we are once again reminded of the various issues surrounding the Craig case – such as those outlined in Alison Mau’s article dealing with costs of justice questions, access to justice, self representation and pro bono support, oppressive and repeated cross examination, trial and retrials, arrays of appeals and so forth, then the ‘perception of justice being seen to be done’ issue comes into sharper relief.
Regrettably, the Colin Craig saga has provided more fishhooks than many of us would have wanted.
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