Siemer v The Solicitor-General

• Jurisdiction: New Zealand
• Judge: Elias CJ,McGrath,William Young,Glazebrook JJ,William Young JJ
• Judgment Date: 12 July 2013
• Neutral Citation: [2013] NZSC 68
• Docket Number: SC 37/2012
• Court: Supreme Court
• Date: 12 July 2013

Between

Vincent Ross Siemer

Appellant

and

The Solicitor-General

Respondent

[2013] NZSC 68

Court:

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

SC 37/2012

IN THE SUPREME COURT OF NEW ZEALAND

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.

Counsel:

A J Ellis and G K Edgeler for Appellant

M F Laracy and A R van Echten for Respondent

A The appeal is dismissed.

B Mr Siemer must surrender at the Registry of the High Court at Auckland at 9.00 am on Monday 15 July 2013.

JUDGMENT OF THE COURT

REASONS

Elias CJ	[1]
McGrath, William Young and Glazebrook JJ	[87]

Elias CJ

1 The “great coercive powers of proceedings for contempt” 1 are common law jurisdiction possessed by courts to punish, including by imprisonment, conduct which risks undermining the administration of justice. Although the circumstances in which contempt may be found vary, 2 a commonly recurring basis is knowing breach of a court order. Such orders may comprise substantive final or interlocutory relief in proceedings or orders ancillary to the exercise of substantive jurisdiction made under the inherent power of the court to control its processes. The common law power to punish for contempt is distinct from the statutory jurisdiction under s 138 of the Criminal Justice Act 1985, 3 also protective of the administration of justice, to punish by a fine of up to $1,000 breach of court orders authorised under that section.

2 Vincent Ross Siemer appeals the decision of the Court of Appeal 4 dismissing his appeal from an order made by a Full Court of the High Court committing him to prison for six weeks under the common law contempt jurisdiction. 5 The contempt was treated as consisting in breach of a suppression order by publication of a pre-trial judgment of 9 December 2010 made by Winkelmann J in the High Court. The judgment ordered severance of criminal trials in respect of three defendants jointly charged with 15 others and specified trial by judge alone for those defendants whose trials were not severed. 6 The suppression orders were made by Winkelmann J against the world, purporting to bind non-parties.

3 It was not in dispute that Mr Siemer, who was not a party to the criminal proceedings in which the suppression order was made, published the judgment on his website with knowledge of the order. He also published commentary on the

judgment which breached the terms of the order. The order was not only placed as a banner on the judgment to which Mr Siemer's own article was linked electronically, but he had altered the banner to purport to exempt publication on his website. In the High Court committal proceedings it was acknowledged by Mr Siemer that he knew of the suppression order. He sought, however, to defend the proceedings on the basis that the order was not lawfully made. Whether the Judge had power to make the suppression order against non-parties and whether it was necessary to protect fair trial rights (thereby justifying limitation of Mr Siemer's right to freedom of expression) remain matters of controversy on the appeal to this Court

4 The arguments on this appeal invoke rights recognised by the New Zealand Bill of Rights Act 1990 to freedom of expression, fair trial, and natural justice. The principal and threshold question raised by the appeal is, however, whether the appellant was able to question the legality of the suppression orders in the contempt proceedings. In the High Court 7 and in the Court of Appeal 8 it has been held that such challenge is barred by a “rule” against collateral challenge, 9 at least if the court which made the order had jurisdiction to make an order of the sort made. It was accepted in both Courts and is acknowledged by counsel for the Solicitor-General on appeal to this Court that such “jurisdictional” exception to the general rule against collateral challenge would apply if any common law inherent power to make a suppression order is excluded by s 138 of the Criminal Justice Act or if the common law power to issue suppression orders does not extend to orders against the world but only to orders against parties to the litigation in which the order is made. The first suggested exception turns on the interpretation of s 138. The second requires consideration of whether the view that there is no common law power to make suppression orders against non-parties (taken by the Privy Council in Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago) 10 should be preferred to the view that there is such power (earlier taken in New Zealand by the Court of Appeal in Taylor v Attorney-General). 11

5 In the present case, the Court of Appeal, dismissing the appeal from the Full High Court finding of contempt, held that s 138 of the Criminal Justice Act does not exclude the inherent power of the High Court to make non-party suppression orders. 12 It applied the approach of the Court of Appeal in Taylor in preference to that of the Privy Council in Independent Publishing in holding that the Judge had inherent common law power to make orders against the world prohibiting publication. 13 The Court of Appeal also affirmed the view taken by the High Court that the correctness in law of the suppression orders could not be challenged “collaterally” in the contempt proceedings. 14 As a result, it declined to entertain the further challenges to the order, including the argument that the order constituted an unreasonable restriction of the appellant's freedom of speech, contrary to s 14 of the New Zealand Bill of Rights Act. 15 On the approach taken by the Court of Appeal, the contempt was complete on publication in knowing breach of an order made with jurisdiction. It held that other grounds of challenge could not be raised in the contempt proceedings but could be put forward only in proceedings which directly challenged the validity of the order and that such direct challenge could not be made following the breach which constituted the contempt. 16

6 For the reasons explained in what follows, I am of the view that s 138 of the Criminal Justice Act excludes common law powers to make suppression orders of the type made here. Breach of orders made under s 138 may be punished by fine. It follows that I would allow the appeal on the basis that the sentence imposed was one the High Court had no jurisdiction to impose. Since that is, however, a minority view, it is necessary for me to explain why I also consider that, if the common law power to make the non-publication order here made has not been supplanted by s 138 and extends to orders against non-parties (as I conclude it does for reasons given in [52] to [60]), the appellant should succeed in the further arguments that he was able to challenge the legality of the suppression order in the contempt proceedings. While I come to the conclusion that orders against the world may be made to protect the administration of justice, that conclusion is linked to and

dependent upon the view I take that someone who is not a party to the proceedings in which the orders are made must have the opportunity, if proceeded against for contempt for breach, to question their legality in the contempt proceedings, including on the grounds that they constitute an unreasonable restriction on the right to freedom of expression

7 It is not necessary to decide whether similar challenge can be made by way of a defence to an order made under s 138(2)(a) or (b). That matter is not currently before us. It turns principally on construction of the legislation creating the statutory offence, including the relatively limited penalty under it which may be contrasted with the open-ended power to punish at common law.

8 I accept entirely that orders of the court must be obeyed. And it will almost inevitably be abuse of process justifying refusal to entertain a defensive challenge for a party to litigation to seek to defend proceedings for committal for contempt for breach of adjudicated orders by attempting to re-litigate the decision to make the order. 17 Nor can it be a defence in proceedings for contempt that the person breaching the order himself believes it to be unlawful and void. He is not entitled to act on his own judgment as to its validity, which may well be wrong. But it entails no retreat from the position that court orders must be obeyed to take the view that someone who is not a party to an order may raise its legality in proceedings to commit him for contempt for disobedience.

9 That is not the position taken by the majority in the present appeal. They consider that non-jurisdictional challenge cannot be raised in proceedings to commit someone in breach for contempt. Such challenge must rather be made pre-breach either in proceedings for judicial review (a procedure available only in relation to orders made by an inferior court) or by application to the court which made the orders (either the High Court or an inferior court) for reconsideration and variation of the orders. In respect of “jurisdictional” challenges, the Judges in the majority reserve their position on whether such challenge can be entertained in the contempt proceedings, while indicating that in...