The High Court has found that repeated references by Commission of Inquiry Commissioner Justice David Ashton-Lewis to identifying “crocodiles in the pond” would lead a fair-minded and fully informed observer to conclude there was apparent bias in the conduct of the inquiry.
Justice Dane Tuiqereqere made the finding in his judgment quashing the COI findings and declaring the report null and void.
The judgment records Justice Ashton-Lewis telling the inquiry that the Prime Minister had suggested he identify the “crocodiles in the pond”.
Justice Ashton-Lewis said during the hearing: “Well, we certainly have identified them. And they’re going to be named.”
Justice Tuiqereqere considered how those remarks would be viewed by a fair-minded and fully informed observer and whether they suggested Justice Ashton-Lewis had approached the inquiry without an impartial mind.
The judge stressed that the legal test was objective and did not require determining Justice Ashton-Lewis’ actual state of mind.
“I am satisfied that a fair-minded fully informed observer would arrive at the conclusion of apparent bias on the part of Justice Ashton-Lewis,” Justice Tuiqereqere said.
He said the Commissioner’s numerous references to looking for “crocodiles in the pond” could reasonably create the impression that he believed from the outset that there were people who had interfered in Barbara Malimali’s appointment and that his task was to identify them.
“The analogy to crocodiles appears to refer to interference in the appointment of Ms Malimali and Justice Ashton-Lewis apparently saw his task as identifying and naming those who had interfered,” Justice Tuiqereqere said.
The judge said a fair-minded and fully informed observer would not have confidence that Justice Ashton-Lewis had retained an open and impartial mind when conducting the inquiry.
The finding relates to apparent bias, rather than a finding that Justice Ashton-Lewis was actually biased.
