Judicial Secrecy on Magistrate Report Under Fire

When a Community Magistrate faces serious complaints, you’d expect the investigation’s findings to see the light of day. However the enquiry by Power List lawyer Michael Heron KC has not been revealed although the basis of the report raises critical questions for legal professionals about the balance between confidentiality and public interest.

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But the inquiry into Terence John Bourke’s conduct remains under wraps. Bourke is a former Police sergeant.

 The year-long Heron investigation into the complaints included determining whether the allegations against the Judge were substantiated and whether they warranted Bourke’s removal from office, adhering to principles of natural justice and confidentiality, as stipulated by terms agreed upon by Bourke and Justice officials.

Multiple lawyers, including criminal lawyer Samira Taghavi, filed complaints about Bourke’s behavior. In one incident, Bourke allegedly threatened to jail Taghavi for using her phone in court – leading to her being escorted out while her device was inspected.

Bourke’s past activities include a neighborhood dispute and a legal tussle over riding his motorbike in bus lanes.

Michael Heron’s investigation wrapped up in April 2024, but Associate Justice Minister Nicole McKee has declined to release the findings, citing confidentiality concerns.

A Stuff reports that Official Information requests for the report have been declined by the Associate Minister.

“It’s effectively a gag order,” says Taghavi, who isn’t mincing words about the irony of closed-door justice for judicial officers.

Dennis Ansley, another complainant and veteran lawyer, puts it bluntly: public funds, private findings – how does that add up?

Reinstatement

Adding fuel to the confidentiality fire has been Bourke’s quiet reinstatement to the Auckland District Court. Lawyers who participated in the inquiry expressed frustration at the absence of consultation or communication regarding his return to adjudicating cases in the same jurisdiction where complaints arose.

Taghavi’s response? She’ll seek his recusal if their paths cross in court again.

Community Magistrates, appointed by the Governor-General on ministerial advice, handle countless lower-level criminal cases daily. Their decisions might not make headlines, but they shape public trust in the justice system.

Community Magistrates’ work helps to alleviate the workload on District Court judges. Their responsibilities include presiding over defended hearings for non-imprisonable offenses and imposing penalties such as fines or community-based sentences. While their scope is limited compared to judges, their decisions significantly impact defendants and public perceptions of justice.

The bigger question gnawing at those lawyers involved or interested in the process is when those entrusted with dispensing justice face serious allegations, who watches the watchmen? And more importantly, shouldn’t the public get to know what the watchmen found?

Chief Ombudsman Peter Boshier’s (pictured) compromise has been to release a process summary while keeping the findings confidential.

The decision hasn’t quelled the debate. For now, the investigation’s conclusions remain as elusive as justice itself seems to some observers of this peculiar case.

For lawyers, this case serves as a reminder of the tension between protecting confidentiality in sensitive inquiries and upholding public trust through accountability.