The Solicitor-General of New Zealand v Vincent Ross Siemer
| Jurisdiction | New Zealand |
| Judge | MACKENZIE,Simon France JJ |
| Judgment Date | 04 July 2011 |
| Neutral Citation | [2011] NZHC 804 |
| Docket Number | CIV 2010-404-8559 |
| Court | High Court |
| Date | 04 July 2011 |
[2011] NZHC 804
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
Arnold, Winkelmann and Andrews JJ
CIV 2010-404-8559
M Laracy and G J Robins for Applicant
T Ellis and G Edgeler for Respondent
JUDGMENT OF MACKENZIE AND Simon France JJ
The Solicitor-General applies for an order that Mr Siemer be held in contempt of court. The application relates to alleged breaches of suppression orders made by the High Court. Mr Siemer defends the allegation primarily on the basis that there was no power in the High Court to make the orders he allegedly breached. Next, he submits that even if there were a general power to make an order, process deficits meant this particular order was a nullity. Finally, he submits that his publications do not anyway breach the terms of the order which must be construed narrowly.
The case in which the suppression orders were made involves the trial of 18 people for breaches of the Arms Act 1961. The Crown applied for orders that the charges be heard by a Judge sitting without a jury. 1 Winkelmann J ruled on the application on 9 December 2010. 2 At the top of the judgment, above where the names of the parties are set out, it was provided:
THIS JUDGMENT IS NOT TO BE PUBLISHED (INCLUDING ANY COMMENTARY, SUMMARY OR DESCRIPTION OF IT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE OR OTHERWISE DISSEMINATED TO THE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.
There was no discussion in the body of the judgment about the suppression order.
Shortly after the judgment was issued, and probably in fact the next day, Mr Siemer published an article on two identical websites which Mr Siemer owns and operates. The article began:
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 paragraph we also omit, 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 month and multi-million dollar convert police investigation in 2007 which made news headlines around the world.
The word “ruling” in the first paragraph of the article is a hyperlink. If a reader clicked on it he or she would be taken to a full copy of the suppressed ruling.
Sometime shortly after the judgment was released to the parties, the Crown applied to the Judge for a variation of the suppression order on the basis that it went further than was needed. Her Honour heard from counsel and some self-represented accused. Her decision, issued on 21 December, describes itself as a “Telephone Conference Minute”. We have no direct evidence on the form of the hearing but note that the ruling records that some accused attended in person.
It is apparent from the ruling that all defence counsel who were heard on the matter wished the order to remain as it was. Winkelmann J accepted this was the prudent course pending appeals, but varied the original suppression orders to allow publication of the results of the decision. This was achieved by adding:
… provided that reporting is allowed of the outcome of the judgment as set out at paragraphs 78 and 79 of the Judgment.
So that this might be a full record, we set out those paragraphs:
[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 Judge alone pursuant to s 361D.
[79] I also decline the respondents' applications for severance.
On or about the following day, Mr Siemer placed a second article on his websites. It reads:
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 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.”
The Solicitor-General's amended application sets out the factual narrative and identifies the articles said to constitute the breach. Paragraph 2.3 then alleges:
2.3 The applicant claims that the actions of the respondent in maintaining or publishing statements on websites in respect of which he is the editor, or over which he has control, constitute a deliberate, persistent, and unjustifiable disregard for the High Court's orders, and an assault on the authority of this Court. His actions there by constitute a serious act of contempt of Court requiring a term of imprisonment not exceeding three months in the first instance.
At the hearing Ms Laracy advised that the Solicitor-General relied upon two alternative bases for establishing contempt. Neither necessitated proof that the publication caused a risk to a fair trial. The alternative bases are identified in this passage, from the judgment of Sir John Donaldson M.R. in Attorney-General v Newspaper Publishing Plc on which the applicant relies, as options (a) and (b): 3
Despite its protean nature, contempt has been classified under two heads, namely, “civil contempt” and “criminal contempt”. Whatever the value of this classification in earlier times, I venture to think that it now tends to mislead rather than assist, because the standard of proof is the same, namely, the criminal standard, and there are now common rights of appeal. Of greater assistance is the reclassification as (a) conduct which involves a breach, or assisting in the breach, of a court order, and (b) any other conduct which involves an interference with the due administration of justice, either in a particular case or, more generally, as a continuing process, the first category being a special form of the latter, such inference being a characteristic common to all contempts per Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449.
The primary difference between the two options is that, unlike the first, the latter does not require that the contemner be directly bound by the order he or she is said to have breached. In his reply submission Mr Edgeler objected to reliance by the Solicitor-General on (b) as an alternative head of contempt. It was submitted that it had not been pleaded, and Mr Siemer had been embarrassed in his defence. Having reviewed the material we consider that the objection is well founded.
First, there is no express reference in the application to this form of contempt. It seems from the outset that direct breach has been the allegation. In the Solicitor-General's initial letter of complaint to Mr Siemer, the allegation is that:
the publication of your article “Judge or Be Judged” and the judgment itself constitutes a clear and deliberate breach of the suppression order.
Next, it was known to the applicant that an intended defence to this allegation was that there was no jurisdiction to make an order of this kind that purported to bind non-parties to the proceeding. The Solicitor-General's written submissions
anticipate this defence and address it. In such circumstances we consider it had to be made plain that an alternative form of contempt, which did not require the order to be binding on Mr Siemer, would be relied upon.Third, this alternative basis for finding contempt involves different elements that must be proved. It arises when the purposes of an inter partes order have been deliberately undermined by a...
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