Vindicated
Please take care. This post touches on issues of violence, sexual abuse and trauma.
It was Kirsty Johnston, one of the more tenacious journalists for Stuff, who broke the story in 2021. It had been a long time in the making.
Johnston would visit her subject at her lowest point. Mrs P was a woman aged in her fifties living in a garage without hot water. She had lost her job. In fact, she’d lost everything. She felt like a pariah. She couldn’t sleep at night, turning it all over in her mind. During the day, anxiety made her scratch at herself. The skin on her arms was scabbed.[i]
The article in 2021 marked six years since Mrs P’s ruin began, if you count the Family Court as the beginning. Of course, it wasn’t. No one enters Family Court without a history that starts long before, and Mrs P was no different.
Johnston would later recount why it took a while to get the story over the line. Mrs P’s nervousness would get the better of her. She’d want to give up, abandoning their work together. In the end, the woman in the garage decided it wasn’t just about her, but other women too. As she would put it, “People are so vulnerable when a marriage ends and most know nothing about the legal system, and you put your faith in a lawyer and the court.” She needed time, but Johnston was there when she was ready.[ii]
You wonder how things might have turned out, if Mrs P hadn’t spoken and if Johnston hadn’t listened: if vindication, whatever the hell that’s supposed to mean, had never come.
What follows is nothing short of a fiasco, from the first word of it to the last. As of today, that last word remains unspoken.
Mrs and Mr P were married for about sixteen years, from 1990 until their separation in 2006. She was a teacher, and he’d followed the path of his well-known family into farming. They settled in Hawke’s Bay, where she’d grown up, raising three children and buying a number of properties. They farmed together, and she continued to teach. It must have looked to outsiders like the couple was doing well.
If that was an appearance, then Mrs P herself tried to keep it up. Only a handful of people outside the family knew the truth: Mrs P’s mum and a handful of her friends. As Mrs P would later explain to Johnston, she wanted to protect her husband’s reputation, and she also believed he behaved as he did in part because he was unwell. More than that, as she told the journalist, “… you still care about them, I mean they’re not like that all the time”.
If she said little to the people around her, Mrs P at least felt she could talk to her ACC counsellor. Over years, she confided beatings, rapes and strangulation, anxiety, nightmares and flashbacks. The counsellor documented their sessions. Nor were these ACC documents the only evidence Mrs P would later produce. Mr P once wrote her a letter in which he said:
I want to hurt you because I love you. … I want to hurt you like I feel you’ve hurt me because when I can’t get satisfaction from loving you I know I can get it from hurting you.
The hurt didn’t stop with separation. Afterwards, Mrs P was prosecuted, then discharged without conviction, for assaulting Mr P’s sister. He and his sister had been on Mrs P’s property. Mr P later admitted he’d knelt on Mrs P’s neck during the incident, and police photos confirmed her bruising. In separate incidents, police twice searched Mrs P’s house when Mr P alleged she’d stolen from him.[iii]
It was in this time, after their separation, that the relationship property dispute began – the thing that would set in motion the terrible events to come. It’s important to understand, so we’ll step it through.
When they split up in 2006, Mrs and Mr P agreed to divide their relationship property, but afterwards Mrs P had regrets. She felt she’d gotten less than her fair share because she’d been in a bad way at the time of the split – under duress because of the abuse she’d suffered.[iv] In 2009, Mrs P applied to have the 2006 agreement set aside. Rather than let things go all the way to Family Court, Mr P negotiated. In 2011, with the help of lawyers on each side, a new agreement was reached, this one more favourable to Mrs P.
But it was Mr P’s turn to have regrets. No sooner was the ink dry on the 2011 agreement when he felt hard done by. Now he applied to get the new agreement set aside. That’s how, in 2015, Mrs P would find herself in Family Court.
It’s important to remember the Family Court doesn’t deal with crimes, and its job isn’t to punish people. Mr P wasn’t up on any charges, for abusing Mrs P or for anything else. Mrs P wasn’t up on charges either.
But the abuse still mattered to the case.
You’ll recall that Mrs P had reopened the original 2006 property agreement by claiming she’d been abused and under duress. But what if the abuse had never happened? That would mean Mrs P couldn’t have been under duress. That would mean the original 2006 agreement should still stand – and that would mean Mrs P having to give back the extra property she’d gained from the 2011 agreement.
Mr P and his lawyer had found their plan of attack, and they knew just how they were going to use it.
In 2015, it was twenty-five years since Mrs and Mr P had married, and nine since they’d separated – that nine spent in strife over their relationship property. Mr P’s bid to overturn the 2011 agreement had finally made it to the Family Court. The hearing would last eight long days. Judge Callinicos presided.
Much later, the higher courts would try to piece together what happened in the Family Court from incomplete transcripts and recordings not available to the public. There are times Mrs P is distressed, or simply inaudible. She would later tell Kirsty Johnston, the journalist, she was so traumatised she simply felt numb. It’s hard to convey the horror of what happened, except through the words of the people involved.[v]
There were the interruptions.
Mrs P was cross-examined for six hours and fifteen minutes, and over that arduous stretch, Judge Callinicos talked across her at least 20 times – including eight times in the course of a single hour.
Judge: So is 11.3 just another situation where yet again another lawyer has incorrectly stated your words? Is that what it is? What is your explanation?
Mrs P: Well that's what I told her -
Judge: Well what is your explanation?
Mrs P: Well I told her -
Judge: Listen to these words, "I reported the sexual violence to the police in Tolaga Bay -
Mrs P: Well that's how my lawyer has written what I told them about -
Judge: Yes, so that's what I'm saying and I guess you blame your lawyer because your lawyers seem to feature more for a lot of explanations but you were put a very clear question by [P's counsel], which was, did you report any of these matters of the alleged sexual violence to the police? And you said emphatically, no, and yet here is yet again another sworn statement by you that in 2005, "I reported the sexual violence."
Mrs P: But that was how, to me, I didn't go to the police and report it, he rang up -
Judge: Why, why didn't you say that in 11.3?
Mrs P: Because that's what my lawyer put in, that's how they word it. I told her the situation I'm in -
Judge: Oh okay, so yet again let us go through the exercise, when you swore this document -
Mrs P: All right, I did swo -
Judge: When you swore the document -
Mrs P: If that's reporting it to the police, I did.
Judge: Did you read the document before you put your signature to it?
Mrs P: Yes. But -
Judge: Yes or no.
Mrs P: Yes I did.
Judge: You either read it or you didn't.
Mrs P: I mean it wasn't, I thought reporting it to the police was when you -
Judge: No, no, no, no, no, no -
Mrs P: - make a complaint and you want something to happen -
Judge: No, did you read this document before you swore it?
Mrs P: Yes I did.
Judge: Good, thank you.
Mrs P: May I just explain about it?
Judge: No.
As well as the interruptions, there were the cutting remarks. Mr P’s lawyer made these to Mrs P, without any intervention from the judge, saying to her, You keep going back to the property don't you, sneaking around like a common thief and taking stuff don't you?
When Mrs P recounted the most harrowing violence, the lawyer sarcastically called into question why Mrs P hadn’t reported it:
Lawyer: And, and what was the nature of the sexual and physical abuse?
Mrs P: In terms of?
Lawyer: Yeah?
Mrs P: Well just holding my throat for sex, I'd hide in a cupboard, he'd grab at my crutch, he'd hold his butcher's knife, chase me up the road and he'd hold his knife to my throat and once your breathing is compromised, sure I wasn't fighting and that because I couldn't breathe, I mean you do just lay there and...
Lawyer: And what?
Mrs P: Oh you let them have sex with you because -
Lawyer: Well how distressing that would be, and you'd go and see the police about that, wouldn't you?
Alongside the interruptions and the cutting remarks came the accusations.
Judge: I'm going to put very clearly to you and plainly to you, when a person fabricates documents for various purposes, attaches them to an affidavit, stating she's attaching them to an affidavit to attack, to refute the matter and you actually state it as being there as a credibility issue, and the irony is for you gain superior credibility over then this is a real irony - you fabricate a document in a court process to do it, then you can expect a robust experience in court. I make no apology for that and this is all on the record. And you're just going to have to cope with that. Okay?
Mrs P: I'd just like it known that I haven't actually seen my friends for about six years. I keep to myself. I don't socialise. I don't talk about -
Judge: Sorry, what's that got to do with your sworn statement?
Mrs P: Well you're trying to make out that I'm spreading this in the community and -
Judge: No [P's counsel] had put it to you that you declined that you had, and yet here's this sworn statement that you told three close friends about the abuse -
Mrs P: That's not the community -
Judge: - and yet you had denied you had done that.
Mrs P: But -
Judge: You've emphatically -
Mrs P: I protected my husband's reputation -
Judge: No sorry, you emphatically -
Mrs P: - that's what I did -
Judge: You emphatically denied the questions put to you by [P's counsel] about precisely that. You said you hadn't done that. And here's another sworn statement by you which says you had.
Mrs P: I mean I'm just, it's hard, like you're saying about, I just, I just can't win. I mean I can't, I mean (inaudible).
Judge: Well you're going to have a difficulty winning if occasions when you are on oath, as you are now, you are giving different answers in court today to sworn statements on oath -
[...]
Judge: These are very clear statements. They're not vague statements.
Mrs P: But I know I protected his reputation for so long and that's all I remember about that period. It was such a long time ago and I know I did protect his reputation -
Judge: You've hardly protected his reputation, have you, when you launch into this, fabricate documents and bring about in a large part the very predicament that you and your husband are in today. Because by fabricating documents, it exacerbates the dispute and you're hardly protecting his - from your perspective - his reputation by doing that when you've already told close friends about it in a small community about it.
Mrs P: I kept quiet for much of my marriage and now I just feel like I'm being, you know. I was so isolated, to talk to three friends is not -
Judge: And what do you feel like today? What are you trying to say? What do you feel like today? That you are being punished for it in some way?
Mrs P: I'm just, knowing what I know, about how I behaved and I just feel like the court's being really quite, um -
Judge: What? Tough on you?
Mrs P: Because I know -
Judge: Because you fabricate documents and swear false affidavits? What did you remotely expect -
Mrs P: I just also know that has lied -
Judge: What? No.
Mrs P: - under oath.
Judge: You stop here. What did you remotely expect of a court? Do you think I treat this job with frivolity? That people can come into it and fabricate documents? It is a criminal offence putting false documents or statements to ACC to gain counselling and payment, it's a criminal offence.
Mrs P: I was protecting -
Judge: Do you grasp any of this, the enormity of it?
Mrs P: I do but the thing is I was doing that to protect my husband and it's been turned around to make out -
Judge: Well I simply -
Mrs P: - that I was fabricating -
Judge: - do not accept -
Mrs P: - a document.
Judge: - a word of what you're saying.
Mrs P: Exactly and -
Judge: I think it's -
Mrs P: - that's my point.
Judge: - completely false on your part. It is yet another manipulation of your evidence. But we'll move on from that tomorrow because - but you're just going to have to accept if you fabricate documents and you make false statements in your affidavits and completely contradict ones then you are going to find a robust response. If you don't want that, then tell the truth on everything. You can reflect on that overnight and we'll see how you go in the morning.
It is difficult to imagine that Mrs P, a teacher and a farmer and a mother, was the type to cry easily: not of that kind of temperament, even if after her marriage she’d had tears left over to shed. Yet to read what happened to her in Family Court, disjointed words from the fragments of a transcript, is to feel her humiliation, her diminishment. You almost see the shape of her shoulders as she crumples into her seat.
How could this have happened to Mrs P? Why didn’t someone do something?
To get at these questions, we need to understand the lives of judges – and to do that, it’s helpful to tell another story. This story involves a character we just met. Enter Judge Callinicos once again.
In 2021, the same year Kirsty Johnston broke Mrs P’s story, a whole other tragedy made its way to Family Court. Moana, as she is known in court documents, was a little girl who Oranga Tamariki took from her mum and placed with a Pākehā couple. Moana did well with her new family – but after about a year, Oranga Tamariki got worried Moana’s cultural needs as a tamariki Māori weren’t being met. They decided to shift her to live with her whānau. The Pākehā couple refused to let Moana go, and the whole thing ended up before Judge Callinicos.[vi]
We won’t debate Moana’s case here – although it’s fair to say the situation was way more complicated than the news suggested. But one thing’s not in question. The Oranga Tamariki social workers who appeared in court got a hell of a time.
Later, a lawyer who was present was shocked enough to speak to Newsroom.[vii]
It was harsh. [One of the women] wasn’t able to finish her answers to questions, she was cut off. She was practically sobbing the whole time. She was in the box, just crying. It went on for a very long time. At least a couple of hours. …
I would have expected that when she started crying that we would have had a break, to allow her to compose herself, but she wasn’t given a break, it just went on and on and on.
The lawyer reflected that if the public saw an older man speak to a younger woman like that, they would be shocked. As she put it, “It’s not the way that anyone would consider acceptable to be spoken to in the workplace. I think that’s really why we need some kind of complaints system.”
Some kind of complaints system? The lawyer’s comment seems puzzling – was there really no way to complain about a judge? It’s time to kick another hornet’s nest. We’ll simplify a little to keep things readable.
As the Moana case played out, and the social workers became more and more distraught, Oranga Tamariki got worried. Their chief executive believed Judge Callinicos was bullying his social workers. Behind the scenes, he contacted the Chief District Court Judge and the Principal Family Court Judge, part of a group who are kind of ‘matua judges’. These matua judges were worried too. They reached out to Callinicos for a quiet word about his behaviour.
A quiet word almost always does the trick with a judge – in fact, the public will never know it happened. This time, it backfired. To say Callinicos didn’t appreciate the quiet word is an understatement. He objected that the matua judges were trying to influence him mid-case. To paraphrase the matua judges, they reckoned their quiet word was OK because they were only trying to influence Callinicos’s behaviour, not his decisions.[viii]
Whoever was right or wrong, the quiet word hadn’t worked as intended.
When a quiet word doesn’t work, Plan B isn’t great. Yes, you can complain about a judge’s behaviour to someone called the Judicial Conduct Commissioner, and you might get an apology. In theory, your complaint could go as far as a Judicial Conduct Panel, and in theory, the Panel could recommend the judge gets the sack. But that’s a consequence so big it would shake the justice system to its core. A judge has never been sacked, even once.[ix]
Now you see just why this is a hornet’s nest. If you feel bullied by a judge, not much can be done in the moment. In fact, not much can be done later – and anyway, you’re probably too beaten down and out of cash to try.
We’re far from done with these issues, but for now we turn back to the story of Mrs P.
She must have had no illusions that things had gone well – but a few weeks after her Family Court hearing, when Callinicos’s judgment arrived, Mrs P could not have been prepared for what it contained. It said:
“I found the respondent to be one of the least credible witnesses I have ever observed. She presented false evidence in a calculated and manipulative manner to achieve her end goal of discrediting [her ex-husband]. These actions and her explanations when her false evidence was disclosed, display a person of inherently dishonest character.”
Mr P, by contrast, was “the embodiment of a reliable and credible witness”, Callinicos said. The incident on Mrs P’s property, during which Mr P had knelt on Mrs P’s neck, was “not a pivotal matter”, and it only happened because she’d been restrained for being in an “agitated and aggressive state”. Mr P was a victim: his ex-wife’s “unreasonable pursuit” of money had done him a “serious injustice”.
Mrs P’s witnesses, who testified to her abuse – her friends and her elderly mother – were not credible, because they were “unwitting victims” of her manipulative behaviour.
“I am in no doubt that she was not abused by [her ex-husband],” the judge concluded.
Judge Callinicos ordered Mrs P to give Mr P $70,000 and transfer to him a property and chattels. Soon after, he would also order Mrs P to pay Mr P court costs of $280,000. The burden would force Mrs P into bankruptcy. Still, her ordeal was only beginning.
At the end of the judgment appeared the words, “Such calculated and dishonest actions cannot go without repercussions”. Judge Callinicos had referred Mrs P to the police for perjury.[x]
The police prosecuted, and in 2018 Mrs P appeared in the District Court, this time before a different judge. She was found guilty. When her lawyers asked for a discharge without conviction, so she could avoid losing her job as a teacher, the Crown argued that as a woman in her fifties, her career was nearly over anyway. Now a criminal, Mrs P was told she’d avoided jail “by the skin of her teeth” because of her law-abiding past and the state of her mental health. She was sentenced to a year’s home detention instead.
This is how Mrs P lost everything, and how a journalist would come to find her living in a garage without hot water.[xi]
Even at her lowest moment, Mrs P somehow never lost her will to fight.[xii] After her District Court hearing, she had to go to court again for a follow-up name suppression decision. There, she refused to stand for the judge. She was asked to apologise and did so, explaining her actions weren’t personal, but a protest. She asked, “How can I respect the court when as a victim of abuse, it doesn’t show any respect to me?”.
It was this small moment of defiance, captured in a short media article, that first drew the attention of Kirsty Johnston.[xiii]
For her protest, Mrs P spent three hours in the cells and was fined another $650 for contempt. She paid it off week by week, out of her benefit.
We’ve followed Mrs P through her sixteen-year marriage, ending in 2006 with a split of relationship property. She felt the split was unfair – so in 2011, she and Mr P came to a new agreement more favourable to her. Mr P quickly changed his mind on the 2011 agreement. He took Mrs P to Family Court in 2015.
We’ve seen how Mrs P was treated at Family Court, and whatever she had or hadn’t done, that treatment left us horrified. Judge Callinicos, the Family Court judge, believed Mrs P had committed perjury, a criminal offence: something about ACC and swearing that a false document was true. The District Court found her guilty and gave her a year of home detention.
But was Mrs P really a criminal? To understand what happened, we need to follow her back to court.
After her conviction for perjury, Mrs P engaged Elizabeth Hall, a well-known feminist defence lawyer. Hall has had a fascinating and sometimes controversial career, reversing miscarriages of justice by helping overturn sexual violation, serious assault and even murder convictions.[xiv] Mrs P and Hall came up with an appeal strategy asserting the District Court had got the wrong end of the stick on something.
And what was that something? Now we come to the ACC form.
Right back during Family Court, Mrs P had supplied all sorts of evidence of abuse, including documents and photos. She’d sworn an oath to the court that her evidence was true. Amongst the evidence was one particular ACC form, dated 1995. Mrs P had provided this form not as an original, but as a copy. And a close look at the copy showed something odd. The form had been altered. Names and details had been covered with twink, and dates had been changed. When Mr P’s lawyer spied those changes, she probably couldn’t believe her luck. If her plan of attack was to show Mrs P was lying about the abuse, maybe that job just got easier.
On the face of it, the altered form doesn’t look good for Mrs P – but nothing in this story is straightforward. It’s time to delve into Mrs P’s appeal process. Again, we will simplify a little.[xv]
After the District Court convicted her of perjury in 2018, Mrs P and Elizabeth Hall went to the High Court in 2019. Mentally, Mrs P wasn’t in great shape, but she wouldn’t or couldn’t give up. Taking her part, Hall stood before the judge and ran her arguments. Yes, Mrs P had altered the document: she’d never denied it. But explaining why she’d made the changes hadn’t cut it in court. Hall now laid out a bunch of technical-type problems with Mrs P’s conviction. One of those problems was pretty subtle. Had Mrs P sworn the ACC form was a true copy, or only a copy? If only a copy, she had more wriggle room – and perhaps her oath wasn’t a lie after all.
In Hall’s view, Mrs P had told the truth about the most important thing: the abuse. Her conviction was a miscarriage of justice.
To make her point, Hall took the letter Mr P had written to Mrs P years before, and she read it aloud. I want to hurt you because I love you. The court was silent.
The High Court judge broke the silence with a question: “Well, presumably there is no dispute at all that [Mrs P] was subjected to significant physical and emotional abuse?”.
Hall directed the question to the Crown prosecutor, adding, “…it seems remarkable that [Mrs P] has been convicted for perjury … and yet [Mr P] is denying – and denying under oath – that he’s abused her and that’s perjury in itself, and yet she’s the one who was prosecuted.”
The Crown prosecutor offered no reply.
For a moment, perhaps, Mrs P’s hopes were raised. That moment didn’t last. Her appeal was dismissed. Whatever she’d gone through, she’d still put a false document to the court and pretended it was true. Mrs P was devastated, but Hall wasn’t done. The dialogue in the High Court, painful though it was, had given the lawyer a glimmer of hope. She set her sights on the justice system’s next level up.
It’s hard to imagine how Mrs P must have felt in 2020, when her case made it to the Court of Appeal. Not one but three judges presided. Hall once again put her arguments. Once again, the judges would disagree with her approach, but in a way you might not see coming.
Mrs P had altered the form, but her reasons were heartbreaking – and a fuller look at the form told a different story.
You see, Mrs P had confided many things to her ACC counsellor. She’d mentioned a former partner of decades before – but now that her private details were going to Family Court, she twinked out the former partner’s name to protect his privacy. She twinked out a reference to the bulimia she’d suffered, and a teenage incident of shoplifting related to her bulimia. These highly personal things weren’t relevant to Family Court, she reasoned, and the possibility people might find them out was humiliating. She spotted that some dates on the form were wrong, so she corrected them. The form was then copied. Her lawyer didn’t catch the problem.
What happened next was a terrible mix-up.
We saw how as part of the Family Court process, Mrs P was asked to swear her evidence was true. ‘True’ meant that any copies of documents were exactly the same as the originals – but that’s not how Mrs P understood it. You can see why Judge Callinicos’s questioning confused her. In her mind, she’d made the form true by fixing its errors.
The Court of Appeal looked over the sad and tortuous case before them. They said they were uneasy about the way Mrs P had been treated by the District Court – treatment that must have felt like a crushing déjà vu for Mrs P after Family Court. The judges said:
…some of the propositions put to [Mrs P] in evidence were not fair. Indeed, that is a general observation we make of the cross-examination. The Judge described it in his verdict as “skilful and penetrating”. We see it otherwise as overall unfair and at times bullying.
But the Court of Appeal was far from done. They didn’t work through all the arguments Hall had put to them. As the judges stated, “we consider a more fundamental issue exists”. Something essential had been brushed over, and it was time to bring it to light.
Mrs P had been convicted of perjury, a crime that has two parts to it. To be guilty, Mrs P first had to state to the court that something was true when she knew it was false – and we’ve seen the terrible mix-up on this point. Second, she had to do all this with the intent of misleading the court.
But was she trying to mislead?
There was nothing covert about Mrs P’s changes to the ACC form: even in the copy provided to court, most were clear as day. More than that, she’d initialled the changes. She’d even explained some of them, with phrases like “I censored. Personal not relevant.” And her changes didn’t impact on the strength of her evidence, one way or other. In short, Mrs P had taken her pen – just like she did as a teacher, before her job was lost and her career destroyed – and made corrections that had seemed to her like common sense.
The Court of Appeal said, “…we consider that a miscarriage of justice has occurred, and the verdict must be quashed”. There would be no retrial.
By now it was five years since the Family Court debacle that had set things in motion. The ordeal of the perjury conviction was over – too late to avoid a sentence served and a life unravelled, but over just the same.
If Mrs P had hoped for better fortune in 2021, it’s hard to say how that panned out. One thing’s for sure: she didn’t fade from the public eye.
Kirsty Johnston broke Mrs P’s story in April that year. It provoked a flood of astonishment and anger. Hundreds of everyday people emailed Stuff. More than seventy academics and domestic violence experts wrote an open letter to then-Prime Minister Jacinda Ardern, urging that Mrs P should be compensated and her ordeal investigated.[xvi] But Johnston’s story also set in train a new string of events.
In August, another story we’ve touched on hit the headlines: Moana, the little girl Oranga Tamariki had tried to move, and Judge Callinicos’s treatment of the social workers in the Family Court. In the fallout of the case, it was reported that the social workers needed psychological support.[xvii] One was understood to be so traumatised she left her job.[xviii]
Here we return to unfinished business: Judge Callinicos, the matua judges, and the quiet word they tried to have with their colleague.
With two such troubling stories in the media, journalists began to dig even further. Now Newsroom investigated. “What we found is certain judges’ names come up more than others and trust in the system is lacking”, they reported. “In Napier, there is one Family Court judge, Judge Callinicos.”[xix]
Newsroom spoke to five women, all of whom wished to be anonymous.
One woman had been called “wholly unreliable” with “entrenched bitterness and vitriol”. In Callinicos’s view, her evidence wasn’t an honest recollection, but “derived from her considerable emotional state”. Her husband had made his decisions “in a cauldron of the mother’s bizarre and extreme behaviours”.
Another woman, who said her ex had coerced her into sex, was told that evidence suggested “[her] actions throughout have caused confusion to [the ex-husband] as to the status of their relationship.” By contrast, Callinicos found her ex to be “a fair-minded, gentle and circumspect witness.”
This woman’s witness got a hard time from the judge too. The witness described being forced to choose a date when her memory was hazy:
I explained I did not know the exact date. He repeated, ‘You will pick a date,’ threateningly. I said I do not know, which date shall I pick? I placed my finger on the calendar. It was removed and then Judge Callinicos, with the prosecution, proceeded to tear my evidence to shreds.
One woman Newsroom spoke to had contacted the Judicial Conduct Commissioner, who we met earlier on. Nothing came of it. The Commissioner wasn’t unwilling to help, but couldn’t. He replied, “Of course, you are entitled to make a complaint to me in accordance with the Act but the reality is that my functions are limited.”
If the media were joining the dots, then the matua judges were doing the same. But for a set of leaked documents, the public might never have found out: something more extraordinary than we realised was happening behind the scenes.[xx]
It was the Moana case that tipped the balance. In August, the Judicial Conduct Commissioner, like much of the country, read about Judge Callinicos’s treatment of the social workers. Off his own bat, he decided to treat the article as if it was a complaint. He believed that rightly or wrongly, the public was increasingly worried about the way the courts were treating women and children.
The Commissioner started to investigate. He found out the matua judges had been fielding complaints about Callinicos for a while – and since the Mrs P story broke, they’d been taking advice on what to do. One matua judge called Callinicos’s interventions bullying, excessive, partisan and demeaning. Another said Callinicos’s alleged behaviour risked “seriously undermining the confidence of the Napier community and compromising the safety of children”.
The investigation showed the matua judges had tried to work with Callinicos, emailing and writing to him, but he’d refused to meet. Instead, he launched a complaint of his own to the Commissioner, taking aim at the matua judges, and calling their quiet word judicial interference.
Now, with the whole ugly spat in the media, Callinicos emailed his grievances to friends – and this too made its way to journalists. “Some new judges have told me they feel physically nauseous and fear as to what will happen if they are not seen to tow the line on certain agenda,” he claimed. He added:
Where to from here? Well, I predict the drive will now be on to get a JCC investigation of me in 'Moana’ case, get [the Commissioner] to recommend a conduct panel, fill it with judges who will sing the party song and sack me.
Why does all this matter? There are a bunch of reasons, but one is this: judges are meant to be better than the rest of us. They’re meant to be patient when you or I might fray, choose careful words when you or I might snap, and be rational and measured when you or I might simmer. That’s how they earn our trust.
If the public can’t trust judges, we risk losing faith in the whole justice system.
Callinicos’s prediction did not come to pass: he never went before the Judicial Conduct Panel, let alone get sacked.
And the leaked documents that had kicked off the spat? They were only ever made available to people involved in the Commissioner’s investigation. The Commissioner denied any involvement in the leak, noting he’d clearly marked the documents as private and confidential. “I can only guess at who the media informer may have been,” he added.[xxi]
In 2023, Mrs P went back to the High Court.
It wasn’t about the perjury. That was traumatic, but it was done: she’d been found guilty, served her sentence, then had her conviction quashed. Instead, it was about the Family Court decision of 2015, that first link in a chain of terrible events. If the perjury had been addressed, then the original injustice Mrs P had faced – having to give property to Mr P and pay his costs – had not.
This was an unusual move: Family Court decisions seldom go to appeal.[xxii] In fact, Mrs P’s right to appeal had only been granted the year before. More unusual were the grounds for the appeal. Mrs P and her lawyer would argue the Family Court hearing was so unfair that whole result should be thrown out. It was a hell of a call to point the finger at a judge that way – but Mrs P, for all her mental health had suffered through the years, had never lacked for courage.
After combing through the evidence and transcripts, the High Court judge chose her words carefully.[xxiii] Eight years on, they can’t have been any easier for Mrs P to read.
The mistaken belief Mrs P had committed perjury had “pervaded and tainted” the Family Court hearing, the judge said. Callinicos and the prosecutors had “effectively teamed up against her”. The prosecutors’ questions had been “improper or unfair”. Callinicos’s interruptions “had the effect of building on counsel's efforts to undermine and belittle [Mrs P]”.
The judge quoted “some of the more egregious” parts of the hearing. The sarcastic response when Mrs P recounted being forced into sex at knifepoint. That question, if she’d snuck around like a common thief. Being forced to answer yes or no only. The judge observed that Mrs P had been “audibly distressed and in tears”.
It was outside her job, the judge said, to make a finding that Mr P had abused Mrs P – but she noted that the Family Court’s view that there was no abuse could not stand.
Mrs P had won, but only in a sense.
The High Court judge set aside the Family Court’s decisions, urging Mrs and Mr P to try once again to reach agreement out of court. “The parties are very much back to square one”, she said.
There should have been a coda to this story.
As best as I can tell, Judge Callinicos served out the remainder of his career without consequence.
I can find only one mention of him, outside run-of-the-mill court reporting. He complained to the Media Council that Stuff had arranged hyperlinks to imply that an anonymous judge, in trouble for their conduct, was actually Callinicos. It was ironic: the action of a man who understands the unjust loss of reputation, especially in a small town, can be devastating. The Media Council didn’t uphold his complaint.[xxiv]
I gather he has now retired – presumably to a house that has hot water.
And Mrs P?
In 2020, around the time Mrs P’s conviction was quashed, Andrew Little, then the Minister of Justice, reviewed the guidelines Cabinet uses to compensate people who are wrongfully convicted. When he did, he specifically ruled out compensation for people sentenced to home detention. As he put it, with an odd sort of flourish, “You get to be in a place you’re familiar with, usually with people you’re familiar with ... It’s not the level of regimentation and stony-faced existence you’d get in prison.”
By March of 2023, Kiri Allan was the Minister – and she changed the guidelines to include people sentenced to home detention. However, if Allan had been willing to go into bat for Mrs P, it didn’t come to pass. Weeks later, Allan lost her own job.
If Mrs P has ever been compensated under the changed guidelines, I can’t find it. After 2023, the trail simply goes cold. Maybe she wants it that way; and if she does, I don’t begrudge her.
Read all the articles about Mrs P and you’ll see the same word again and again: vindicated. It’s a grand word, rousing the emotions, but it’s ultimately hollow.
She won, they say – but what, exactly, it’s hard to tell. There are things that can never be restored to a person. Their home, their friends, their community. Their belief that the world is fair, or at least tries to be. Their sense of peace and their years.
Nights lost to sleeplessness, and days spent scratching at bloodied skin.
[i] The court said she was lying about being abused. She did a year on home detention. She wasn't lying | Stuff
[ii] Putting victims at the centre of reporting | RNZ
See the episode Crying at work from the podcast Tell me about it, at https://megaphone.link/OUAOS2709072405
[iii] The ‘Mrs P’ case highlights the crisis in our Family Court – University of Auckland
W v W [2023] NZHC 3491
[iv] The court said she was lying about being abused. She did a year on home detention. She wasn't lying | Stuff
[v] The court said she was lying about being abused. She did a year on home detention. She wasn't lying | Stuff
Woman vindicated after High Court rules Family Court judge acted unfairly | RNZ
[vi] Microsoft Word - FINAL VERSION_Determining the best interests of tamariki M ori_December 2022.docx
[vii] ‘She was in the box, just crying’
[viii] Judges' involvement in 'Moana' case not inappropriate, commissioner says | Stuff
[ix] Complaining about a Family Court judge isn't safe - advocate | RNZ
[x] Note there are different accounts of the costs Mrs P was required to pay, which seem to sum up different aspects of actual costs awarded plus the value property she was required to return to Mr P. I’ve taken the conservative figures in this article: Embattled judge says he has received support from 60 colleagues | Stuff
[xi] The court said she was lying about being abused. She did a year on home detention. She wasn't lying | Stuff
[xii] The court said she was lying about being abused. She did a year on home detention. She wasn't lying | Stuff
[xiii] See the episode Crying at work from the podcast Tell me about it, at https://megaphone.link/OUAOS2709072405
[xiv] Borrin Foundation Justice Fellow Elizabeth Hall | Borrin Foundation
'How could you?': Why women defence lawyers are judged more harshly | Stuff
[xv] The sources for this section are primarily as follows:
Abused wife condemned by judge, then wrongly convicted of perjury
CA641/2019
[xvi] Make the NZ courts safe for victim-survivors | OurActionStation
'She was failed': Experts call for investigation into case of 'Mrs P' | Stuff
[xvii] Judges' involvement in 'Moana' case not inappropriate, commissioner says | Stuff
[xviii] Feeling belittled and marginalised in the Family Court
[xix] Feeling belittled and marginalised in the Family Court
[xx] Chief Justice and Justice Young acted appropriately in 'Moana' case - commissioner | RNZ
Embattled judge says he has received support from 60 colleagues | Stuff
Judges' involvement in 'Moana' case not inappropriate, commissioner says | Stuff
[xxi] Chief Justice and Justice Young acted appropriately in 'Moana' case - commissioner | RNZ
[xxii] NZLS | 28% of appeals from District Court successful
[xxiii] Woman vindicated after High Court rules Family Court judge acted unfairly | RNZ