Siemer v The Solicitor-General

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young,Glazebrook JJ,Elias CJ,McGrath
Judgment Date12 July 2013
Neutral Citation[2013] NZSC 68
Docket NumberSC 37/2012
Date12 July 2013

[2013] NZSC 68

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, McGrath, William Young, Chambers* and Glazebrook JJ

SC 37/2012

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

A J Ellis and G K Edgeler for Appellant

M F Laracy and A R van Echten for Respondent

Appeal from Court of Appeal decision dismissing an order made by a Full Court of the High Court, committing the appellant to prison for six weeks under the common law contempt jurisdiction — appellant, who was not a party to the relevant proceedings, breached a suppression order by publication of a pre-trial judgment ordering severance of criminal trials — whether the New Zealand courts had inherent power or jurisdiction to suppress judgments in criminal cases, and if so, extent to which such power was excluded by s138 Criminal Justice Act 1985 (power to clear court and forbid report of proceedings) — whether in contempt proceedings based on breach of a Court order, defendant might raise as a defence, that the order should not have been made or made in the terms it was.

Held (per majority, Elias CJ dissenting): Every court had inherent powers which were incidental to or ancillary to its jurisdiction, whether that jurisdiction was inherent or statutory ( Department of Social Welfare v Stewart). These powers included all, but only, such powers as were necessary to enable a court to act effectively and uphold the administration of justice within its jurisdiction.

The leading NZ cases of Taylor v Attorney-General and Broadcasting Corporation of NZ v Attorney-General, together with the early English case R v Clement, supported the existence of an inherent power to make non-party suppression orders. The non-party suppression orders in issue in Taylor and Broadcasting Corporation were permanent and had been made for reasons which at most were only tangentially, if at all, related to fair trial considerations. In contradistinction, the order made in this case was temporary in that it was expressed to endure only until trial and although no reasons were given for the order, it was perfectly clear that the order was made to protect the fair trial rights of the defendants.

From an early stage, the courts acted on the basis that there was power to suppress publication of pre-trial judgments (e.g. R v Julian and R v Wilson) and the practice of suppressing publication of such judgments, pending trial soon became universal. NZ courts had consistently confirmed that they had the inherent power to make non-party suppression orders where the jurisdiction to do so had been challenged (e.g. Muir v Commissioner of Inland Revenue).

The inherent powers of the courts were subject to statutory regulation, limitation or abolition. Section 375 Crimes Act 1961 (“CA”) gave the court the power to clear court and forbid report of proceedings, and following the Broadcasting Corporation decision this section was recast, but did not expressly exclude all common law powers to make non-party suppression orders. Section 138 CJA was largely taken from the 1983 version of s375 CA but with some variations (and had since now been replaced by s194 Criminal Procedure Act 2011). These sections were very much focused on the desirability of trials being open to the public.

Sections 138(2)(a) and (b) CJA did provide for the making of orders suppressing publication of other material relating to criminal proceedings. Section 138(2)(a) CJA was seen as being applicable to the reporting of what happened at the sitting of the court in question – the evidence adduced and the submissions made at that sitting. This was consistent with the legislative history of the section and was a carve out from what would otherwise the consequences of s138(1) CJA (which provided proceedings were open to the public subject to (2) and (3)). Although s138(2)(b) CJA permitted prohibitions which were not confined to what might appear in a “report or account” of proceedings, it was seen as applicable to the identification of any person who gave evidence at “the sitting” referred to in s138(1).

A judgment which referred to evidence or submissions made at a hearing was not seen as being in the nature of a “report” or “account” of proceedings. If it were otherwise, the release of a judgment which referred to evidence or submissions which were subject to suppression orders would, itself, be a breach of s138(2)(a) CJA. The judge therefore only had the power to make the relevant suppression order if there was an extra-statutory, and thus common law, power to suppress publication of judgments.

Since the s138(5) CJA exclusion of inherent jurisdiction was confined to the making of orders “of the kind” provided for in s138(2), it did not exclude the inherent power of the courts to make non-party orders suppressing publication of judgments and rulings. Much clearer words than those which appeared in s138(5) CJA would be required to exclude the inherent power to make orders of a kind not “described” in s138(2).

The New Zealand Bill of Rights Act 1990 (“NZBORA”) did not exclude the courts' inherent power to make suppression orders. Whether or not a suppression order was a limitation on freedom of expression that complied with s5 NZBORA (justified limitations) depended on the circumstances of the particular case. A suppression order could be made consistently with the NZBORA where it represented the appropriate resolution of the tension between freedom of expression and fair trial rights.

Risks to fair trial rights could be mitigated otherwise than by using non-party suppression orders, but other mechanisms (such as judicial warnings or a case being heard in camera) were by no means fail-safe and to date the NZ view had been that they did not adequately protect fair trial rights and the administration of justice. This view was well founded as:

a) a system which left publication decisions entirely to third parties created a risk that those third parties would get it wrong, resulting in prejudice to fair trial rights which could not be remedied after the fact, by prosecution for contempt of court;

b) there was little point in permitting witnesses to give evidence anonymously if their names could be published with immunity;

c) assumptions as to the extent of the power to make non-party suppression orders were material to the way in which litigation was conducted and the extent to which the legislature saw it necessary to provide a statutory basis for non-party suppression orders; and

d) if it should transpire that there was no inherent power to suppress such information, there had to be a very substantial number of orders in civil proceedings as well which would necessarily be rendered invalid, and therefore a large number of people who had conducted litigation on inaccurate assumptions as to suppression.

Given the temporary nature of the order made in this case, and the desirability of protecting fair trial rights, the rule and practice so far adopted by NZ courts was appropriate (majority opinion). The Judge had an inherent power to suppress publication of the relevant judgment.

Subject to any legislative provision, NZ law should continue to permit any member of the public, who wished to publish material which might not be published under a suppression order of general application, to approach the registrar of the court which made the order, seeking its variation or rescission. The approach had to be made in writing and set out the reasons why review of the order, or its application to that person, was sought.

Breach of a court order would generally constitute contempt of court. Where contempt proceedings were based on publication of information subject to a suppression order, it was not necessary to show, in addition to breach of the order, that the publication in fact interfered with fair trial rights or another aspect of the administration of justice.

A defence on the basis that the order should not have been made at all or in the terms it was would essentially involve a collateral attack to a court order, in the form of a challenge brought in proceedings which were not directed to rescinding, varying or setting aside the order.

The parties accepted that S had the right in the contempt proceedings to challenge whether the court had power to make the suppression order of the kind made by the judge. Because it had been decided the judge did have that power, it was not necessary for a view to be expressed on whether in NZ a defence would be available to a charge of contempt where it could be established that the court did not have the power to make an order of the relevant kind.

Provided the court had power to make an order of its kind, a court order was binding and conclusive unless and until it was set aside on appeal or for other reason lawfully quashed. Collateral attacks on such orders were not permitted. The rule against collateral challenge (and the importance of the reasons which underpinned it) was also recognised in other common law jurisdictions (United Kingdom, Canada and Australia) and was consistent with the expression of the rule in Taylor. The continuing application in NZ of the rule against collateral challenge in order that the authority of the courts and rule of law was maintained was confirmed.

Provided the court had power to make an order of the relevant kind, it was not open to a person facing contempt proceedings based on breach of a court order to establish a defence, by collateral attack, on the basis that the order should not have been made, or made in the terms it was. The rule applied even where the court order in question was an order made ex parte or against the whole world, binding persons who did not have an opportunity to be heard before the order was made.

The application of the rule should, however, be consistent with its underlying objectives. So far as practicable, there should be a process by which a person who...

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