District Courts out of line

Chief Justice: Not anticipated that karakia be initiated by court itself

On 30 March 2025 I wrote to the Chief Justice, Attorney-General and Minister of Justice about proposals for karakia to commence and end each District Court sitting day. See It never rains, but it pours for the background, Karakia in judicial proceedings which includes a copy of my letter, and How karakia fit into our justice system which reproduced an article from barrister Warren Pyke summarising why karakia are out of place in the courtroom.

Unbeknownst to me until 23^rd April, the Chief Justice had replied by a letter dated 4 April, sent to me by the Chief Justice’s Senior Executive Assistant which I had not picked up because of the unknown name. In that letter the Chief Justice said that the Chief District Court Judge “is gathering further information and once he has completed that, I will be discussing the initiative with him.”

On Friday, I received a further letter from the Chief Justice. In this letter, dated 16 May and reproduced in full at the end of this Substack, Her Honour says that there “has long been provision for karakia to be heard in our courtrooms.” She refers to the existence of guidelines in the District Court and Senior Courts bench books. Critically, she indicates that the guidance “anticipates that a request for karakia is initiated by the parties, and that courts have the discretion to allow such requests. It does not anticipate that karakia are initiated by the court itself.”

As an aside, but an important one, these bench books have not been published. See Judges’ secret bench book released to lawyers, public for the first time. The bench book referred to in that article is the Criminal Jury Trials Bench Book (which does not mention karakia). The bench books the Chief Justice refers to have not been published. We have nowhere to go to ascertain the precise terms of the guidance. The best we have is the letter to me.

Her Honour adds that the Senior Courts Bench Book provides that the views of counsel should be sought before allowing the request, and that she will be recommending that the District Court Bench Book editing committee adopt this wording “for clarity and consistency.”

I welcome the advice that guidance to the judges does not anticipate that karakia are initiated by the court itself. I hope this means that the initiative in the Northern courts will cease.

I have been told there are some District Court judges elsewhere in the country who routinely commence sittings with karakia. I hope these judges will forthwith cease doing so.

Reminding the District Court that guidance for judges does not anticipate karakia being initiated by the court itself is a step towards asserting neutrality of the judiciary and towards renunciation of partiality for any religion or belief.

It is a step but does not go far enough. All vestiges of partiality or apparent impartiality ought to be eradicated. Complete neutrality demands that neither the judge nor any court functionary participates in karakia.

Counsel’s agreement does not sanitise judicial branch partiality. Any judicial branch participation creates the appearance of a non-neutral institution. It also places counsel in an invidious position where they may fear or be apprehensive that their client’s interest will be detrimentally affected if they do not accede to the request. That should not happen.

The Chief Justice recently told a New Zealand Law Society breakfast in Auckland that “If people don’t have access to independent courts, the rule of law is replaced by the rule of the strong over the economically weak and vulnerable,” and that those involved in the justice system must strive toward the ideal of the rule of law which is threatened by lack of confidence in the judicial system. “Public confidence in institutions is eroding and, of course, that confidence is key to the rule of law.”

Confidence in a judicial institution is eroded if the institution fails to show complete neutrality in matters of conscience, religion, and belief.

The judicial branch will remove one impediment to erosion of confidence in New Zealand’s courts if it removes any suggestion that the non-decision-making conduct of judges and the trappings of the judicial process lack neutrality.

A separate topic, which I touch on here because of the Chief Justice’s remarks to the lawyers’ breakfast, is the decision-making process. Underlying various aspects of the rule of law (including the need for courts to be independent) is that people should be ruled by law and not by men and women. If “independent” courts so conduct their affairs as to fashion the “law” in such a way as to confer power on themselves to decide according to the individual views of the judges, the rule of law is replaced by the rule of men and women. See On Judicial Imperialism.

As Aristotle recognised about 2300 years ago, when opining that the law and not men should decide, the practical affairs of mankind necessitate human involvement in the application of laws. In our system, the danger to the rule of law inherent in human beings deciding is ameliorated by the doctrine of precedent. The basic principle of the administration of justice is that like cases should be decided alike, keep to what has been decided previously. The sweeping declaration has no part to play. Law of that nature is for Parliament to enact, and the courts to apply.

Institutions cannot obtain respect by demanding it. They cannot enjoy confidence by claiming it. Respect and confidence are earned by conduct. Respect and confidence are the reward for conduct deserving of respect and confidence.

Respect and confidence may be eroded by departure from the institution’s traditional mode of conduct.

If the courts are seen to be departing from neutrality in judicial conduct and the trappings of judicial procedure, if they are seen to be departing from the conventions of the doctrine of precedent and the acceptance of Parliamentary sovereignty, their conduct will be unsettling, even threatening, with diminished respect and confidence the result.

16 May 2025

Gary Judd KC P O Box 803 Kerikeri 0245

By email: gary@garyjamesjuddqc.com

Tēnā koe Mr Judd

Further to my letter of 4 April, I write to advise that I have now made inquiries of the Chief District Court Judge in relation to the use of karakia in the District Court.

There has long been provision for karakia to be heard in our courtrooms. Guidance is available to judges in the District Court and Senior Courts bench books on the appropriate way to manage these requests and I believe that this guidance adopts the correct position for our mainstream courts. This guidance anticipates that a request for karakia is initiated by the parties, and that courts have the discretion to allow such requests. It does not anticipate that karakia are initiated by the court itself. The Senior Courts Bench Book further provides that the views of counsel should be sought before allowing the request. I will be recommending that the District Court Bench Book editing committee adopt this wording for clarity and consistency.

In some of the specialist courts, karakia are more regularly used – for example in Rangatahi Courts. Guidance has been given to judges to ensure that the way that karakia are introduced in these courts does not compel those in court, particularly counsel, to participate in the karakia if they do not wish to do so.

Hei konā mai i roto i āku mihi,

Helen Winkelmann

Chief Justice | Te Tumu Whakawā

Cc: Hon Judith Collins KC, Attorney-General Hon Paul Goldsmith, Minister of Justice Hon Judge Heemi Taumaunu, Chief District Court Judge