Siemer v The Solicitor-General

• Jurisdiction: New Zealand
• Judge: Harrison J
• Judgment Date: 11 May 2012
• Neutral Citation: [2012] NZCA 188
• Docket Number: CA607/2011
• Court: Court of Appeal
• Date: 11 May 2012

Between

Vincent Ross Siemer

Appellant

and

The Solicitor-General

Respondent

[2012] NZCA 188

Court:

O'Regan P, Harrison and Wild JJ

CA607/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

T Ellis and G K Edgeler for Appellant

M F Laracy and G J Robins for Respondent

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.

JUDGMENT OF THE COURT

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].

The … accused were originally charged under the Terrorist Suppression Act. After widespread public protests, Solicitor General David Collins dropped the terrorism charges in October 2007. Most are now charged with arms violations: some with organised crime activity.

Justice Winkelmann was the Judge who earlier concurred with Police that their Court affidavit used to obtain the nationwide search warrants in the massive arrests be suppressed, then revoked bail on Crown application after Auckland District Court Judge Josephine Bouchier granted bail for some of the accused in 2007. In 2009, Justice Winkelmann struck out several of those search warrants as unlawful. Last month, the Court of Appeal reinstated them after the Crown appealed.

Winkelmann's ruling yesterday means the eighteen originally charged wrongly by the Crown as terrorists will now have their guilt or innocence determined by a Crown judge, as the Crown is being forced to justify its actions in the raids to the United Nations.

The arrests were the culmination of a 13 months and multi-million dollar covert police investigation in 2007 which made news headlines around the world.

7 As the High Court pointed out in the judgment under appeal (the 4 July 2011 judgment), 7 the word “ruling” where it appears in the first paragraph of Mr Siemer's article is a hyperlink; by clicking on that word, the reader would have immediate access to a copy of the 9 December 2010 judgment.

8 The Crown later applied to vary the suppression order because it was wider than was necessary. After hearing from counsel and the accused Winkelmann J issued a telephone conference minute recording that all defence counsel opposed the Crown's application on the ground that the suppression order should remain in its existing terms. The Judge accepted the prudence of this course pending determination of any appeals against the 9 December 2010 judgment. However, she varied the original order by adding the words:

… provided that reporting is allowed of the outcome of the judgment as set out in paragraphs [78] and [79] of the [9 December 2010] Judgment.

9 Those two paragraphs in the 9 December 2010 judgment stated:

• [78] I make the following orders:

  • (a) that the trial of the respondents Teepa, Wharepouri and Hunt be severed from that of the other respondents. It should be called over on a date fixed by the Registry;

  • (b) that the trial of the remaining respondents proceed before a Judge alone pursuant to s 361D.

• [79] I also decline the respondents' applications for severance.

10 The next day Mr Siemer published a second article on his websites as follows:

CROWN TO PERSECUTE WHERE LAW PREVENTS PROSECUTION

18 December 2010

Urewera raid defendants are lining up to appeal Auckland High Court Justice Helen Winkelmann's Judgment that [reasons discussed] and, therefore, a judge – alone trial is necessary when trying the fifteen defendants. It is understood most of the defendants have already signed up to an appeal to be filed with the Court of Appeal in late January.

Meanwhile, Crown Law has sent notice that it intends to prosecute kiwifirst publisher Vince Siemer for publishing Winkelmann's judgment, on the grounds Winkelmann ordered the public not to be told about it. Crown Law is seeking Siemer be imprisoned.

The threat to prosecute comes despite Meredith Connell advising the High Court and Crown Law that they intend to seek rescission of all suppression orders on behalf of the prosecution on the grounds publication of Winkelmann's judgment “cannot possibly prejudice the fair trial rights of the accused, and (the issues in the judgment) are a matter of genuine public interest.”

High Court

11 On these facts the Solicitor-General applied to the High Court for a finding that Mr Siemer's actions in publishing the statements set out in [6] and [10] above constituted a deliberate, persistent and unjustifiable disregard for the High Court order and an assault on its authority. The Solicitor-General claimed that Mr Siemer's actions thereby constituted a serious act of contempt of Court requiring the imposition of a term of imprisonment of up to three months. Mr Siemer defended the application. In its 4 July 2011 judgment the High Court upheld the Solicitor-General's application and found that Mr Siemer had acted in contempt of Court. 8

12 The High Court was satisfied beyond doubt that the suppression order was binding on Mr Siemer; that he published the 9 December 2010 judgment on his websites in breach of the order; and that his breach was deliberate and was maintained despite advice from the Solicitor-General that...