Siemer v Solicitor-General

March 2nd, 2010 at 10:15 am by David Farrar

Proceedings have just started in the with the full bench of five Justices, and I am live blogging from the media bench.

is appearing pro bono for Vincent Siemer in seeking leave to appeal appealing a decision of the Court of Appeal.

Siemer has had a long standing feud with receiver and various items on a website he ran have been ordered to be removed. Siemer was prosecuted by the Solicitor-General for refusing to do as contempt of court, and was sentenced to jail for a finite period.

The issue is that as the Solicitor-General did not seek a term of less than three months, then should Siemer have been entitled to a trial by jury under the NZ 1990.

A major aspect of this is whether or not use of contempt of court is a criminal process or civil process.

Elias is interjecting quite frequently.

Lithgow is arguing that rather than have the Court of Appeal reduce the term of imprisonment, they should have quashed the conviction for contempt and ordered a jury trial.

Finally another Justice has interjected. Not sure of his name, but the Justice sitting on the far right (from my view).

CJ Elias has interjected around a dozen times, which may be seen as scepticism, but she has also commented she is favourable to one of the arguments.

An interesting discussion on what will happen is Siemer does get his jury trial, and whether he will argue that the injunctions should not have been issued, rather than the he did ot breach them.

Lithgow concedes his client is most likely to want to argue the injunctions should not have been issued, but that this is not relevant as the court will control the trial, and can rule on what is allowed.

The Registrar has kindly given me a seating plan for the Justices, so I can now identify that was the Judge referred to above. has questioned Lithgow considerably also.

It is tempting to try and conclude that the level of questioning means a Judge is hostile to the argument, but this is not necessarily the case. What I will find interesting is to contrast how the Crown Law arguments are treated.

Back now after the morning tea break. Focusing on a 1908 English case on contempt. Only other media here are Law Journal editor Bernard Robertson and NBR’s Rob Hosking.

The discussion is how to assemble a jury where there has been no criminal indictment.

The Court of Appeal has already found that the contempt process was essentially a criminal matter (unlike the High Court), but did not grant a jury trial, and instead reduced the sentence so no trial was necessary. Lithgow says main point is he received a criminal sentence originally.

If the original conviction/order is quashed, then the Solicitor-General could seek a new trial, and seek a punishment of less than three months. However it is debatable whether the SG not seeking a longer sentence means that this is binding on the court, and hence even in that circumstance could still require a jury trial.

Lithgow is arguing that a jury can be trusted to deal with a matter of contempt, as the contempt laws exist for the sake of citizens.

CJ Elias is trying to move Lithgow on, saying that if there is a right, there is a right, regardless of whether or not one thinks it is suitable for a jury.

The debate has now moved to whether or not Siemer had complied with the injunction as he did remove some material from his website. Lithgow argues there was no way to know exactly what material needed to be removed.

Justice Anderson makes the point that Siemer could have applied to the High Court to get the injunction clarified. CJ Elias says the SC will not give an advisory opinion during the hearing on the injunction. She also says that the injunction does not require the entire website to be taken down – just material that breaches the injunction.

My feeling is that Siemer is unlikely to prevail on the issue of asserting he did not breach the injunction. But on the wider issue of the right to a jury trial, still very hard to read until one hears the Crown Law arguments.

Justice Blanchard has said the terms of the injunction are not complicated. Lithgow argues what remains on the website is merely a few splinters, and how far does one go in removing material, when the vast majority has been removed.

Madeleine Laracy has just started speaking for the Solicitor-General. Says that requiring jury trials to enforce contempt breaches would lead to many

more people ignoring court orders, so they can take their chances pleading before a jury. Is now quoting my favourite Justice Scalia on how contempt is just enforcing a civil process.

Justice Anderson has asked if there is any other civil proceeding that can lead to imprisonment, now that they no longer jail for debts. Laracy responds that prison can be avoided my complying with the court orders, and is essentially a choice for Siemer.

The Assistant Crown Counsel is Briar Charmley. So far the “off-siders” have not got to speak.

Just back from the lunch break. My views of the exterior remain unchanged. Up close it is even worse. The rails look dusty, and it really belongs in a 1950s Soviet museum. However the inside is quite different. What I most like is that the court room itself is just inside from the main door, so it is really easy to access it. And the interior of the court room is lovely. I’d take a photo of it, except I didn’t apply in advance for permission – may do so next time.

is asking why there should be a distinction between civil and criminal contempt. Laracy says criminal law’s aim is to punish, and civil law’s aim is to coerce to comply and is not unconditional and can be mitigated or averted by compliance.

McGrath responds that the distinction is academic because at the end of the day it is still jail. Laracy says it may only be jail if they do not comply. Quite amusing to see a former Solicitor-General cross swords with Crown Law.

has also said he finds the distinction artificial.

Overall Crown Law is getting reasonably battered on the civil vs criminal argument.

Laracy says no case in NZ history has had contempt dealt with as an indictable criminal offence, and referring to the Nash case.

Have to head off now. Very dangerous to make predictions on a case when you have not read all the material, but my impressions are:

  • Siemer will not succeed at being found to have not broken the injunctions
  • Siemer will succeed at having contempt charges with no maximum term of imprisonment deemed to be a criminal matter, which could require in future a jury trial
  • But I do not think he will succeed in getting a new trial

I may be wrong on everything though :-)

I also think at some stage the Government may amend the law so that an offence of contempt with a maximum three month imprisonment term is made available as a judicial option. This would be a sensible measure so there is something less draconian that possible indefinite imprisonment.

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17 Responses to “Siemer v Solicitor-General”

  1. Graeme Edgeler (2,972 comments) says:

    Robert Lithgow is appearing for Vincent Siemer in seeking leave to appeal a decision of the Court of Appeal.

    Siemer got leave to appeal. This is the actual appeal.

    [DPF: Yes you are right. Siemer gave me a copy of his application for leave, and looking at it that is ated June 2009, not today. Will amend]

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  2. F E Smith (3,307 comments) says:

    Appearing in the appellate courts in NZ can be a bit of an ordeal. The justices often start in on you early, sometimes before you even begin, and generally don’t let up once they get going. It is far tougher than people might realise and can the questioning can often give way into hectoring or bullying if you have the wrong judges in front of you. Generally you get an idea early on where they are coming from, although if you start from the position that they are pro-Crown you won’t often be wrong!

    However, if anybody can handle them then it will be Lithgow QC. His way of giving himself time to think questions through is something every young lawyer should try to emulate.

    I am very jealous of you getting to watch him appearing in that court on such an interesting case, David!

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  3. Adolf Fiinkensein (2,703 comments) says:

    So what’s been happening for the last couple of hours?

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  4. Graeme Edgeler (2,972 comments) says:

    Finally another Justice has interjected. Not sure of his name, but the Justice sitting on the far right (from my view).

    I would assume Bill Wilson, unless they have a stand-in.

    But you can confirm here: http://www.courtsofnz.govt.nz/about/supreme/judges

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  5. Lipo (230 comments) says:

    Can you tell the chief justice to shut up and let the person have their say

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  6. David Farrar (1,437 comments) says:

    Actually the Chief Justice has been in good humour and cracking a number of jokes.

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  7. F E Smith (3,307 comments) says:

    The CJ is one judge that you can be pretty sure will give you a fair hearing. Of all of the justices I rate her as the most consistently fair in both manner and judgment. I like Tipping when it comes to discussion as well, but he is a typical civil lawyer when it comes to crime!

    Graeme, your note re Bill Wilson reminds me of being at either a swearing in of a judge or a speech (not sure which, nor where as I have heard her several times) and being very surprised when she referred to Bill Wilson’s appointment straight to the CA as being something that she did not approve of (the direct appointment, not the person!). I agree with her, but the surprise was because Justice Wilson was in the room at the time. Which makes me think it was a court sitting somewhere.

    Pointless anecdote, but I am bored so…

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  8. lastmanstanding (1,310 comments) says:

    The VS case is one IMHO with a nasty whiff about it. There are certain elements such as the Fardell matter that appear to be part of an elaborate attempt to ensure the citizens never know the facts.

    The perception there is much more than meets the eye and that certain persons are covering for certain other persons all deteremined to avoid disclosure and transperancey.

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  9. ernesto (257 comments) says:

    There were very interesting post-Saxmere pre-hearing manuoeverings about whether the CJ should recuse herself for bias as her husband serves on a Board with Michael Staissny. First she recused herself, then changed her mind.

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  10. ernesto (257 comments) says:

    Oh yeah… and the Fardell part is a real hum-dinger if you ever get there.

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  11. lastmanstanding (1,310 comments) says:

    ernesto Given its DPFs blog and the legals I have tried to be very very careful Also given the propensity of certain of the parties to resort to litigation to close down any attempt at sunlight and disenfectant I am reluctant to say too much other than its yet another blight on the so called legal and judicial systems and further evidence that the law and good ethics and morals are quite different matters as regards many of those who purport to engage in the 2nd oldest profession.

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  12. merlinnz (46 comments) says:

    Lipo

    It’s an Appeal, no new evidence is available so it is actually the role of the Justices to ask questions.

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  13. Nigel Kearney (1,096 comments) says:

    Once he’s thrown in jail, does he still have an opportunity to comply or is he stuck in jail for the duration of the term regardless and with no access to the internet anyway? If the latter, then surely it’s just a punishment and cannot be ‘mitigated or averted by compliance’ except in the sense you can avoid jail for theft by not stealing.

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  14. Graeme Edgeler (2,972 comments) says:

    Nigel – he still has the opportunity to comply.

    In the High Court he was sentenced to six months. He appealed and said “six months? That means I could have had a jury!” The Court of Appeal said “yes, you’re right, an actual sentence of six months means you could have had a jury, so we’ll change it to up six months, but let you out as soon as you comply with the injunction”.

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  15. deanknight (227 comments) says:

    Having dropped into the foyer, to view the video-feed:

    From the left: Wilson J, Blanchard J, Elias CJ, McGrath J, Anderson J

    http://www.courtsofnz.govt.nz/business/calendar/daily-lists/Tuesday-2-March-2010.pdf

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  16. grumpyoldhori (2,205 comments) says:

    Judge Scalia, is he not one of those judges that appointed Bush as president because he like five of them was a good Republican ?
    Strange system the yanks have, seems to state that the will of the people should be overturned by judges appointed by politicians.

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