Siemer v The Solicitor-General

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHarrison J
Judgment Date11 May 2012
Neutral Citation[2012] NZCA 188
Date11 May 2012
Docket NumberCA607/2011

[2012] NZCA 188

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

O'Regan P, Harrison and Wild JJ

CA607/2011

Between
Vincent Ross Siemer
Appellant
and
The Solicitor-General
Respondent
Counsel:

T Ellis and G K Edgeler for Appellant

M F Laracy and G J Robins for Respondent

Appeal against conviction for contempt of court for breaching a suppression order and sentence of six weeks imprisonment — appellant published articles on websites concerning Urewera terrorist case which was subject to High Court suppression order — whether High Court had inherent jurisdiction to make suppression orders — whether Taylor v Attorney-General was still good law — effect of s25 New Zealand Bill of Rights Act 1992 (minimum standards of criminal procedure) — effect of s138 Criminal Justice Act 1985 (power to clear court and forbid report of proceedings) and Criminal Procedure Act 2011 — whether ruling was a nullity — whether sentence manifestly excessive.

Held: While the banner statement was not expressly described as an order, it was plainly intended to have that effect. The answer to whether the HC had inherent jurisdiction to order suppression rested on whether the Court of Appeal (“CA”) decision Taylor v Attorney-General was still good law. The CA held the Court could exercise its inherent jurisdiction to suppress publication as long as it did not contravene any statutory provision.

Taylor had been cited by the CA and Supreme Court with approval. Australian authorities did not provide consistent guidance, while Canadian authority arguably supported Taylor. NZ and English authorities both recognised a court of record's inherent power to regulate its own proceedings but diverged on whether and to what extent that power included prohibitions on publication. English courts recognised a power to make a non-publication order only where it was authorised by statue (particularly the Contempt of Court Act 1981) but otherwise relied on a judicial warning system. Otherwise there was no inherent power to make orders binding the world at large.

From a NZ perspective the English authority presented a number of problems. What was countenanced in England seemed uncertain and arbitrary as in marginal cases, those who wished to publish would not know where they stood without a judicial warning. It seemed unduly subtle to distinguish between a warning and an order prohibiting publication on the basis that a power existed to give the warning but not the order, when the effect sought by them both was essentially the same. The English approach gave deference to the general principle of open justice as the policy reason for not recognizing an inherent power to order non-publication. However the approach of then holding an evidential admissibility challenge in camera or allowing a witness not to mention his or her name necessarily intruded on open justice. When it was common ground that publication must be postponed in the interests of the fair administration of justice, the act of publication immediately placed that ultimate objective at jeopardy. The deterrent effect of an order assumed real significance in that situation.

There was a powerful policy factor supporting Taylor: protection of fair trial rights was a dominant consideration for courts when exercising inherent powers. Section 25 NZBORA formalised the right of an accused to a fair trial. Section 14 NZBORA formalised the right to freedom of expression, which justified the principle of open justice. However open justice was not an end in itself. It was an empty concept if a Court lacked effective powers to ensure it could do justice in the open. Suppression orders directed at what could be published were a preventative strategy to protect the statutory right to a fair trial. On the sliding scale identified in Taylor, orders postponing publication represented a partial and temporary intrusion upon the principle of open justice while seeking to protect fair trial rights.

Once the existence of an inherent power in a court to regulate its procedures was accepted, NZ courts should be free to settle their boundaries and develop the law according to their perception of domestic conditions and policy considerations. Taylor had been settled law for 37 years and particular persuasion would be required to indicate that a different course was appropriate after this time.

On its plain meaning, s138 CJA did not extend to a judgment and the Court's inherent jurisdiction to suppress publication of a judgment was not ousted by s138 CJA. The CPA introduced a more prescriptive regime in limiting the power to make suppression orders but Parliament had left s138 CJA largely in the same form. Parliament could have closed off the inherent jurisdiction if it had wished. Parliament's approach could be construed as an acceptance of the importance of that power's flexibility, within the Court's overriding responsibility to exercise its powers to ensure a fair trial.

A contempt proceeding was a unique summary process. Whether the contempt was categorised as civil or criminal, a summary process was adopted. A charge was not laid in terms of s24(a) NZBORA (shall be informed promptly and in detail of the nature and cause of the charge). The HC had not been required to ask S to enter a plea because it was not making a finding on a charge. Instead the application and supporting affidavits provided the detail of the claim; the contemnor was given an opportunity to file affidavits in answer.

The six week sentence was not excessive and was lenient in the circumstances.

Appeal dismissed.

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellant is to present himself at Auckland Remand Prison at 9 am on 25 May 2012 to commence serving his term of six weeks imprisonment.

C There will be no order as to costs.

REASONS OF THE COURT

(Given by Harrison J)

Table of Contents

Para No

Introduction

[1]

Background

[3]

High Court

[11]

Inherent jurisdiction

[14]

New Zealand authorities

[14]

(a) Taylor v Attorney-General

[17]

(b) Broadcasting Corporation v Attorney-General

[24]

(c) Muir v Commissioner of Inland Revenue

[29]

(d) Supreme Court authorities

[30]

English authorities

[36]

(a) Attorney-General v Leveller

[38]

(b) Independent Publishing v Attorney-General of Trinidad and Tobago

[41]

Other Commonwealth authorities

[56]

Decision

[59]

(a) New Zealand and English approaches compared

[59]

(b) New Zealand context

[66]

(c) Conclusion

[74]

Statutory provisions

[79]

The Criminal Justice Act 1985

[79]

The Criminal Procedure Act 2011

[85]

Other grounds of appeal

[92]

Nullity

[92]

Bringing the administration of justice into disrepute or abuse

[97]

Unreasonable limitation on freedom of expression

[99]

Decision wrong in law

[100]

Failure to prove harm

[101]

Apparent bias

[102]

Excessive sentence

[104]

Result

[106]

Introduction
1

Vincent Siemer appeals against a finding of contempt made in the High Court 1 for breaching a suppression order made earlier in that Court. 2 He appeals also against his sentence of six weeks imprisonment, 3 which has been stayed pending our decision.

2

Mr Siemer's appeal raises many grounds. One of them is tenable and significant: it is whether this Court's decision in Taylor v Attorney-General, 4 recognising the High Court's inherent jurisdiction to make suppression of publication orders, correctly represents the law of New Zealand.

Background
3

On 9 December 2010 Winkelmann J, the Chief High Court Judge, delivered a judgment in R v B (the 9 December 2010 judgment). 5 The Judge's decision was one of a number of pre-trial rulings under s 344A of the Crimes Act 1961 in the highly publicised prosecution of 18 people for breaches of the Arms Act 1981 (the Hamed proceedings). Mr Siemer was not one of them. Winkelmann J ordered severance of the trial of three of the accused and trial before a Judge sitting alone without a jury of the charges against the remaining 15. 6

4

These words appeared as a banner at the top of the 9 December 2010 judgment:

THE JUDGMENT IS NOT TO BE PUBLISHED (INCLUDING ANY COMMENTARY, SUMMARY OR DESCRIPTION OF IT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE OR OTHERWISE DISSEMINATED TO THE PUBLIC UNTIL FINAL DISPOSITION OF TRIAL OR FURTHER ORDER OF THE COURT. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.

5

The Solicitor-General contends that the statement in the banner constituted an order of the High Court prohibiting publication of the judgment on the stated terms. We are satisfied that, while the banner (the suppression order) is not expressly described as an order, it plainly was intended to have that effect. The suppression order was not separately included within the body of the 9 December 2010 judgment or the subject of express judicial consideration.

6

Mr Siemer owns and operates two identical websites. Immediately following delivery of the 9 December 2010 judgment he published an article on both websites including these words:

JUDGE OR BE JUDGED

10 December 2010

Chief High Court Judge Helen Winkelmann (pictured) ordered yesterday that the “Urewera terrorist” prosecution … against 15 accused will be by judge alone trial. The landmark ruling was sought on application by the Crown and had been opposed by the accused.

The remaining three of the eighteen listed defendants were ordered separate trials.

Winkelmann J ordered the public not be told about her order. In the past Winkelmann has stated the reason for such secrecy was to ensure the jury pool is not prejudiced by pre-trial information. Her latest order prohibiting a jury states … [here and in a following omitted paragraph, Mr Siemer summarises the Judge's reasons].

...

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6 cases
  • Siemer v Solicitor-General
    • New Zealand
    • Supreme Court
    • 17 May 2010
  • Siemer v The Solicitor-General
    • New Zealand
    • Supreme Court
    • 12 July 2013
    ...challenge could earlier have been made by him in the proceedings in which the order was made or by appeal. That was the position in Siemer v Solicitor-General. 73 Such result does not come about because of any rigid “rule” against collateral challenge (that is to say, challenge in proceedin......
  • 3263
    • New Zealand
    • High Court
    • 20 December 2017
    ...v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at para [29] (Elias CJ and McGrath J). Generally, see Siemer v Solicitor-General [2012] NZCA 188, [2012] 3 NZLR 43 and Siemer Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441, applying Attorney-General v Taylor [1975] 2 NZLR 138 (SC) ......
  • Shafik v Makary
    • New Zealand
    • High Court
    • 11 September 2015
    ...and Lawrence [1996] 1 NZLR 263. This conclusion is reinforced by comments from several cases. See for example Siemer v Solicitor-General [2012] NZCA 188, [2012] 3 NZLR 43 at [74] and [90]; Zaoui v AttorneyGeneral [2005] 1 NZLR 577 (CA and Connelly v Director of Public Prosecutions [1964] AC......
  • Request a trial to view additional results
1 books & journal articles
  • Open Justice: Concepts and Judicial Approaches
    • United Kingdom
    • Federal Law Review Nbr. 40-3, September 2012
    • 1 September 2012
    ...Kwok to suppress publication of the names of witnesses who had paid for the sexual services of trafficked women. 63 [2005] 1 AC 190. 64 [2012] NZCA 188. 65 Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8. 66 See eg, Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim......

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