Siemer v Solicitor-General

• Jurisdiction: New Zealand
• Judge: Elias CJ,McGrath J,Blanchard,Wilson,Anderson JJ,Blanchard J
• Judgment Date: 17 May 2010
• Neutral Citation: [2010] NZSC 54
• Court: Supreme Court
• Docket Number: SC 48/2009
• Date: 17 May 2010

Between

Vincent Ross Siemer

Appellant

and

Solicitor-General

Respondent

[2010] NZSC 54

Court:

Elias CJ, Blanchard, McGrath, Wilson and Anderson JJ

SC 48/2009

IN THE SUPREME COURT OF NEW ZEALAND

Contempt of Court — whether imprisonment for contempt for six month period gave a right to jury trial under the New Zealand Bill of Rights Act 1990 — whether proceeding should be commenced by way indictment or was restricted to summary procedure.

Counsel:

R M Lithgow QC and L A Scott for Appellant

M F Laracy and B C L Charmley for Respondent

A The appeal is allowed and the order made by the Court of Appeal is quashed. It is replaced by an order committing the appellant to prison for a term of a maximum of three months, subject to the proviso that the term of imprisonment will come to an immediate end if the appellant complies with the injunction issued on 5 May 2005 and made permanent on 23 December 2008 by the High Court at Auckland in the proceeding Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008 and if he also provides an undertaking to the High Court in a form approved by the High Court that he and Paragon Oil Services Ltd will continue to comply with that injunction for so long as it remains in force.

B Mr Siemer is ordered to surrender to his bail at the High Court in Auckland no later than 4pm on 20 May 2010 unless by then he has complied with the injunction and provided that undertaking to the High Court in a form approved by it.

JUDGMENT OF THE COURT

REASONS

	Para No
Elias CJ and McGrath J	[1]
Blanchard, Wilson and Anderson JJ	[41]

Elias CJ and McGrath J

(Given by McGrath J)

Introduction

1 Mr Siemer appeals against a judgment of the Court of Appeal 1 committing him to prison for contempt of court. The contempt lay in his continuing disobedience of an interim injunction issued by the High Court. 2 It required Mr Siemer not to publish, in any form, material containing allegations of criminal, unethical, or other improper conduct by a chartered accountant and his firm in relation to their administration of the receivership of a company associated with Mr Siemer.

2 Two earlier proceedings alleging contempt of court had been brought by the chartered accountant and his firm against Mr Siemer in relation to earlier breaches of the injunction. The first resulted in the imposition of a fine of $15,000 on Mr Siemer and an order for payment by him of solicitor and client costs to the other parties. 3 The second resulted in Mr Siemer being sentenced to six weeks' imprisonment. 4 He has served that sentence.

3 The present proceeding was brought by the Solicitor-General as a result of subsequent continuing breaches of the injunction. The High Court held that the contempt was proved by the publication of prohibited allegations on a website

controlled by Mr Siemer. 5 He was sentenced to six months' imprisonment. The sentence was suspended to allow Mr Siemer the opportunity to remove offending material from the website, and provide an undertaking it would not be replaced, in which case further submissions on penalty could be made. Mr Siemer did not accept that opportunity. On appeal the Court of Appeal was required to address s 24(e) of the New Zealand Bill of Rights Act 1990. That provision gives those charged with an offence the right to trial by jury if the penalty includes imprisonment for more than three months. The Court accepted that this right was engaged in the case. It modified Mr Siemer's sentence, so the term imposed became a maximum term of six months' imprisonment which was subject to a proviso. Mr Siemer was to be released from prison during the term on his compliance with the High Court's injunction and on giving an undertaking to the Court that he and his company would continue to comply. The Court of Appeal decided that this modification put the term of imprisonment within the control of Mr Siemer who could bring it to an end at any time. This meant the sentence was no longer in breach of s 24(e)

4 The issue in the appeal is whether Mr Siemer was wrongly deprived of the right under s 24(e) to trial by jury because of the summary procedure of trial by judges sitting alone in the High Court. In considering that submission we start by identifying the requirements of the law prior to enactment of the Bill of Rights Act in relation to the procedure by which contempt proceedings were determined. We then assess the effect of the enactment of the Bill of Rights Act provision on that procedure in order to decide if the appellant's protected right has been breached.

Procedure in contempt proceedings

5 Contempt of court is a common law jurisdiction. 6 The category of contempt with which this appeal is concerned involves actions committed outside the court which tend to undermine the system for administration of justice. The jurisdiction of

the High Court to deal with contempts of this kind is long established. 7 In Almon's case Wilmot J said: 8

The power, which the Courts in Westminster Hall have of vindicating their own authority, is coeval with their first foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for a contempt to the Court.

6 A summary process has long been used by the court to determine questions of contempt because of the perceived need for the courts to act quickly and effectively when their authority is challenged. Under the summary procedure, there is no preliminary inquiry, committal procedure or requirement for an indictment. Historically the judge could take the initiative in the proceeding, determine the grounds of complaint, identify witnesses and inquire into what they had to say. The judge would then determine guilt or innocence and the sentence to be imposed. 9 More recently, when out of court conduct is involved, contempt proceedings have been brought by a law officer, usually the Solicitor-General.

7 Over the years, the summary process has come to include the safeguards normally available to accused persons to protect their rights with the exception of the right to trial by jury. As Gale CJ said of the summary procedure in the High Court of Ontario: 10

It must be borne in mind, however, that there are several degrees of “summary process” and that the procedure adopted in this instance was summary only in the sense that the matter was brought to this Court by way of originating notice of motion, rather than indictment, and that the respondents did not have the right to elect trial by jury. All other rights, including the right to cross-examine, the right to call witnesses and the right to call no defence, as in any other trial, were accorded the respondents.

8 The common law summary procedure for contempt of court proceedings was adopted in New Zealand. Following the codification of the criminal law the question arose in Nash v Nash, Re Cobb 11 as to whether the common law jurisdiction for

committal for contempt had been taken away by the Crimes Act 1908. 12 In a judgment delivered by Salmond J, a Full Court of the then Supreme Court rejected the submission that the enactment of the criminal code had removed the Court's summary jurisdiction to commit for contempt. The Court pointed out that the 1908 Act actually recognised that that jurisdiction still existed. It decided that the purpose and effect of s 5 of the 1908 Act was simply to stipulate that the only indictable offences should be those set out in the criminal code, or in some other statute not inconsistent with it. Salmond J then continued: 13

This being so, the Supreme Court preserves unimpaired and unaffected its original jurisdiction to secure the efficiency and the purity of the administration of public justice by dealing summarily with all conduct which is recognized by the common law as amounting to criminal contempt of Court.

9 The Crimes Act 1961 is the successor of the 1908 Act. The provision in that Act which is equivalent of s 5 is s 9:

9 Offences not to be punishable except under New Zealand Acts

No one shall be convicted of any offence at common law, or of any offence against any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom:

Provided that—

(a) Nothing in this section shall limit or affect the power or authority of the House of Representatives or of any court to punish for contempt:

10 In 1977 in Solicitor-General v Radio Avon Ltd, 14 the Court of Appeal considered s 9 and rejected an argument that its effect was to preclude the contempt in question from being dealt with by means of the summary procedure. The Court said s 9(a) was “obviously” enacted to give effect to the Full Court's decision in Re Cobb. 15 It followed that a contempt of court could not be dealt with as such by way

of indictment; the only way it could be dealt with under the law was by the summary process

Right to trial by jury

11 The next question is whether the enactment of the Bill of Rights Act in 1990 and its protection of the right to trial by jury in criminal cases has altered the position. Section 24(e) of the Bill of Rights Act provides:

24 Rights of persons charged—

Everyone who is charged with an offence—

…

(e) Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months;

12 Section 24 is one of a group of sections which affirm criminal law process rights. These rights are engaged when a person is “charged with an offence”. An issue in the appeal is whether a person against whom summary proceedings for contempt of court are brought is such a person. Two arguments against that proposition are advanced. The first is that as s 24 is concerned with criminal procedure, it is not engaged where...