Senior magistrate clarifies rules on recusal
Chief District Court Judge Jan-Marie Doogue has voiced concern over judicial independence in the courtroom. According to the New Zealand Law Society, the senior judge revealed there are some cases in the larger registries of the District Court where counsel have discussed with registrars whether or not a particular judge should hear a case.
“In one very recent example, a very experienced lawyer fronted at a registry and simply indicated that he would not appear before a particular judge, and that this would put the trial at risk. The suggestion was made that another judge should preside,” Doogue said.
Doogue said the law is clear that counsels should file a formal written application before a judge if they wish to have the magistrate recuse himself or herself. “The judge is then required to hear from all parties to the proceeding and give a formal decision citing reasons for their decision to recuse or not to recuse themselves,” she added.
According to Doogue, the issue of recusal does not arise merely because a judge has ruled against a defendant on a pre-trial matter – even if the decision made was erroneous and adverse to the party.
“A judge is only disqualified if he or she has expressed views in the course of a hearing, in such extreme and unbalanced terms, as to throw doubt on his or her ability to try the issue with an objective judicial mind. The threshold for recusal is high in these types of circumstances,” Doogue said.
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“In one very recent example, a very experienced lawyer fronted at a registry and simply indicated that he would not appear before a particular judge, and that this would put the trial at risk. The suggestion was made that another judge should preside,” Doogue said.
Doogue said the law is clear that counsels should file a formal written application before a judge if they wish to have the magistrate recuse himself or herself. “The judge is then required to hear from all parties to the proceeding and give a formal decision citing reasons for their decision to recuse or not to recuse themselves,” she added.
According to Doogue, the issue of recusal does not arise merely because a judge has ruled against a defendant on a pre-trial matter – even if the decision made was erroneous and adverse to the party.
“A judge is only disqualified if he or she has expressed views in the course of a hearing, in such extreme and unbalanced terms, as to throw doubt on his or her ability to try the issue with an objective judicial mind. The threshold for recusal is high in these types of circumstances,” Doogue said.
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