Siemer wins
May 17th, 2010 at 8:39 pm by David FarrarI blogged on the 2nd of March the Supreme Court hearing of Siemer v Solicitor-General, after being allowed to sit on the media bench to report on it.
I concluded:
- 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
And as it turns out, I was pretty close to the mark. While Siemer was found to have breached injunctions and committed contempt, the Supreme Court upheld his appeal against the six months sentence from the Court of Appeal, and in fact has ruled that no court in NZ can sentence someone to more than three months jail for contempt.
This is quite a significant decision, and does go to show that even “nuisance” litigants like Vince Siemer can end up in doing good, by having the Supreme Court uphold the right under the BORA for no one to face jail of more than three months without a jury trial. Of course Parliament may change BORA n this regard, but until they do it is good to have the courts uphold the law.
Siemer has to surrender himself to the High Court by 4 pm on the 20th of May for a three month sentence unless he complies with the 2005 injunction and provides a written undertaking not to breach it.
What is interesting is that the Supreme Court divided 3-2 on the appeal, with the Chief Justice and Justice McGrath in the minority who voted to decline the appeal. Some extracts from the judgement:
Two further factors indicate that the use of the summary process is fair and not arbitrary, in its impact on litigants, in a way that a jury trial would not be. First, in most cases of contempt there will be little dispute concerning the underlying facts, determination of which is the primary function of the jury. The main issue will usually be rather whether the facts amount to contempt, on which a direction as to the law would be given to the jury if the procedure of a jury trial were to apply. Secondly, referring to the present context, most contempt cases involving breach of court orders are brought by private litigants. It would add greatly to cost, time, delay, expense and complexity of litigation if litigants had to enforce rights already obtained through court proceedings. This is so whether or not the proceedings were brought by a public official such as the Solicitor-General. For a party to have to go through court proceedings to enforce rights it had already obtained from a judgment of the court would be grossly unfair and seriously undermine public confidence in the rule of law.
This is a pretty key point. It would be very unfair for litigants if after having already had certain rights established, they could only get them enforced by recourse to a jury trial. This is why the Chief Justice concluded:
It is true that the summary process under the common law makes a jury trial for common law contempt impossible …
The common law summary procedure remains the only means yet identified which enables effective protection to be given to the threats to the rule of law that all contempts provide. The unusual nature of the procedure emphasises the gravity of the threat to the administration of justice and in the eyes of the court. The procedure also adequately protects persons who come before the court. For all these reasons we consider the constitutional importance of the objective of the summary process and the impact that accommodating a jury trial would have on the courts’ ability to ensure the effective administration of justice clearly indicate that the procedure is a proportionate response to the needs of the rule of law.
Hence the Court agreed that a jury trial for contempt is just a no go. For what it is worth, I agree.
They then disagreed on how to weigh that decision up against BORA which said you need a jury trial for offences which carry a sentence of more than three months.
The CJ and McGrath J concluded:
It follows that we consider the summary procedure for all contempt of court proceedings is a justified limitation of the right to a jury trial under s 24(e). The summary procedure accordingly is not in breach of the Bill of Rights Act.
But the majority disagreed. They concluded:
We have accordingly been brought to the view that as a necessary consequence of the enactment of s 24(e) the power of a New Zealand court to impose a sentence of imprisonment for contempt has been limited to imprisonment for no more than three months (and/or a fine).
It will be interesting what happens if Parliament changes 24(e) so that jury trials are only needed for possible sentences of greater than two years. If so, I presume that will become the maximum punishment for contempt automatically.
It will be interesting to see if Vince Siemer complies with the injunction before Thursday, or if he chooses to go to jail.
The decision may also be a relief to Whale Oil. He is currently only facing charges for breaches of name suppression (which is a fine only). However if he continues to (allegedly) breach orders, it is possible he may get charged with contempt at some stage. If he is, at least he will have the comfort of knowing his possible stay at Mt Eden is a maximum of three months!
Related posts:
- Siemer v Solicitor-General
- Vince Siemer
- Urerewa trial delays
- Has Bain been found innocent on balance of probabilities
May 17th, 2010 at 8:58 pm
Couldn’t Whale be charged indictably?
Vote:May 17th, 2010 at 9:00 pm
Actually I pretty much have a free pass at the moment. The Crown prosecutor wrote me a letter saying they won’t be laying anymore charges.
Essentially the nine charges are the equivalent of six of the best trousers down. Can’t be caned anymore so I can pretty much name away.
Vote:May 17th, 2010 at 9:14 pm
@Whaleoil
I support you campaign where the suppression is to protect the accused.
Th problem I have with your campaign is where the suppression is to protect the victim. I think you go to far, and put victims of crime at risk by disclosing details in those cases.
Vote:May 17th, 2010 at 9:25 pm
Then the law needs to change Toad. It is a relatively simple thing to suppress complainants (I refuse to use the word victim) but the lazy judges won’t do it. they just slap on a suppression order as broad as possible, even after requests from complainants.
NZ is too small to keep secrets.
Vote:May 17th, 2010 at 9:28 pm
Toad – Contempt is a peculiar thing. It is a ‘common law’ offence (but some inferior courts have speciic legislated contemp offences available) and it would seem that a contempt charge has ever been laid indictably in England or New Zealand. Being a ‘common law’ offence means that there is no maximum penalty for it on the statute book, although the Supreme Court has now said this is three months. In the 19th century criminal offences were ‘codified’ for colonial purposes (eg predecessors to the Crimes Act 1961 (NZ) ) but not in England. There, murder remains a common law offence. While there is an English Act clarifying aspects of law relating to homicide it does not explicitly state that murder is an offence.
There is another interesting aspect. Nick Smith (Nat MP for Nelson) was convicted of contempt of court several years ago and was fined. Now, a MP loses his or her seat if convicted of an offence carrying more than two years jail, so the issue became ‘would he lose his seat’. He sought a declaratory ruling from the Speaker who would have got an opinion from the Clerk of the House ndo ruled he would not lose his seat. The Supreme Court ruling would now seem to put this beyond any remaining doubt.
Vote:May 17th, 2010 at 9:32 pm
With what offence?
Vote:May 17th, 2010 at 9:50 pm
Whaleoil…Can’t be caned anymore so I can pretty much name away.
I’m looking forward to you continuing to name the names of those the courts suppress. to force a law change.
But it doesn’t really matter.. your making an arse of the law anyway by continuing to name names.
Vote:May 17th, 2010 at 10:13 pm
@ Graeme Edgeler 9:32 pm
Not sure.
But contempt is common law, rather than statute law , isn’t it? So doesn’t that mean it is up to the Court to decide.
Anyway, my comment was just to get the thread rolling.
Vote:May 17th, 2010 at 10:25 pm
The eminent highest court in the land decreed that the heinous crime of breaching name suppression was to be a summary offence and then it was so bad that a $1000 fine must be administered.
The same eminent highest court in the land also decreed that Paua Poaching was heinous as well, made that an offence with range up to five years imprisonment, or fines up to $250,000, or both, on each charge.
Now according to PC Plod in Nelson plus Chris Comesky what I am doing cuts to the heart of our democracy, yet parliament doesn’t really think so. It thinks that Paua poaching is worse.
Change the fricken law.
If I was MSM, I’d set a budget of $100k per annum just to breach name suppression, get charged, plead guilty, pay fine, do it again.
Vote:May 18th, 2010 at 12:04 am
“The CJ and Elias J concluded” – typo?
Vote:May 18th, 2010 at 7:51 am
@Whaleoil
“The eminent highest court in the land decreed that the heinous crime of breaching name suppression was to be a summary offence and then it was so bad that a $1000 fine must be administered.
The same eminent highest court in the land also decreed that Paua Poaching was heinous as well, made that an offence with range up to five years imprisonment, or fines up to $250,000, or both, on each charge.”
New Zealand’s Parliament isn’t a court. The UK Parliament is, but NZ’s Parliament never was and still isn’t.
Of course, we COULD change the law on breaching a name suppression order. I think a fine of up to $100,000 and/or 3 months in jail should be a good starting point.
Vote:May 18th, 2010 at 8:06 am
1. Calling Parliament the ‘highest court in the land’ isn’t about it being a ‘court’, it’s a metaphor observing how it has the power to overturn (by legislation) even the highest judicial ruling.
2. How it the UK Parliament a “court”?
Vote:May 18th, 2010 at 8:45 am
Graeme: I think AG is referring to the role the House of Lords used to play as the final court of appeal.
Vote:May 18th, 2010 at 9:00 am
Graeme,
Possessing legislative supremacy isn’t the same thing as being “a court” – Whaleoil is just lazily parroting stuff he doesn’t understand (again). For one thing, there’s strong constitutional reasons why Parliament shouldn’t overturn a court ruling by legislation (cf a higher court overturning a court ruling on appeal). And, yes, the UK Parliament WAS a court in a way the NZ Parliament never is not and never has been (see the all-knowing wikipedia http://en.wikipedia.org/wiki/Parliament_of_the_United_Kingdom#Judicial_functions)
Vote:May 18th, 2010 at 9:13 am
Toad and Graeme
It is theoretically possible for Crown Law or anyone else to try and lay a contempt charge indictably. Their starting point would be to try and persuade the High Court that contempt is a matter which may be tried indictably. The High Court especially in the light of yesterday’s Supreme Court decision would most probably say ‘no’. This in itself would be appealable up to the Supreme Court. Any attempt to concoct a new offence under common law will most probably be met by ‘it is a matter for Parliament’. Interestingly it may be easier to charge someone with conspiracy to commit an offence which is not on the statute books like ‘outraging public morals’.
The High Court, unlike any other court, has open ended jurisdiction to deal with matters in the most appropriate way which is called ‘intrinsic jurisdiction.’ This is in practice limited by legislation and decisions of higher courts. Things such as Mareva injunctions and Anton Pillar orders (Google these if you want to know what they mean) were creations of the High Court in England and could have been equally created by the High Court in New Zealand. Once thought of they became immediately available to the New Zealand High Court subject of course to appeal.
Parliament cannot be thought of as a ‘court’ in the usual sense as it does not try any cases. A better way of looking at it is the courts will respect the sovereingty of Parliament with respect to its legislative output, more particularly at the one of two copies of any legislation signed by the Governor General. One remains in Parliament, the other is deposited at the High Court in Wellington which puts judges on notice of its existence. If someone in court queries correctness of the usual printed copies of legislation, that deposited copy will be checked and will prevail. This does not stop judges ‘reading up’ or ‘reading down’ legislaytion, for example Labour had to amend its Employment Relations Act to send a strong message to the courts to take its ‘good faith’ provisions seriously.
Contempt has another peculiarity. A judge may deal with contempt ‘on the spot’. By its very nature it would be dealt with in a ‘summary’ manner. The restriction on this is that the judge a witness to the immediate events that lead to the contempt. Thus a person in the public gallery who stood up, faced the bench and pulled some chewing gum out of his mouth before proceeding to leave got seven days jail there and then (Dunedin in the 1960′s).
Vote:May 18th, 2010 at 9:29 am
Obviously. He (or She) was just a little out of date, so was having some fun.
I think you’ve overstated this. There are strong constitutional reasons why Parliament shouldn’t overturn a ruling in a particular case as it applies to the parties of that case, there are no constitutional reasons why Parliament shouldn’t say “the Court has interpreted section XYZ of the Something Act to mean this, from now on it will mean this other thing instead”.
I’m reasonably confident that WhaleOil was using it in the sense I described. Parliament has said that breach of name suppression carries a maximum sentence of a $1000 fine. Nothing the Courts can do will change this.
Vote:May 18th, 2010 at 9:37 am
I disagree.
You ignore section 329 of the Crimes Act.
Vote:May 18th, 2010 at 11:39 am
The courts place themselves in contempt when they operate in secret, suppress and exclude relevant evidence and keep secret the identity of transgressors.
Vote:May 18th, 2010 at 12:11 pm
@Graeme,
“There are strong constitutional reasons why Parliament shouldn’t overturn a ruling in a particular case as it applies to the parties of that case, there are no constitutional reasons why Parliament shouldn’t say “the Court has interpreted section XYZ of the Something Act to mean this, from now on it will mean this other thing instead”.”
And obviously I was speaking only of the first situation … if you’re going to give Whaleoil the benefit of the doubt/excuse his clumsy use of facts, surely that generosity of spirit should apply across the board – or are you selectively pedantic? But the point remains – courts (and only courts) state the meaning of the law in individual cases. Parliament lays down general rules, which may or may not react to the courts’ previous interpretations and application of the existing rules. The two respond to one another, but do not do the same thing, and should not be confused with one another. That is all.
Vote:May 18th, 2010 at 12:50 pm
peterwn & Graeme,
“It is theoretically possible for Crown Law or anyone else to try and lay a contempt charge indictably.”
Not according to paragraph 10 of the S.Ct’s decision:
“In 1977 in Solicitor-General v Radio Avon Ltd, the Court of Appeal considered s 9 and rejected an argument that its effect was to preclude the contempt in question from being dealt with by means of the summary procedure. The Court said s 9(a) was “obviously” enacted to give effect to the Full Court’s decision in Re Cobb. It followed that a contempt of court could not be dealt with as such by way of indictment; the only way it could be dealt with under the law was by the summary process.”
Vote:May 18th, 2010 at 3:51 pm
AG –
>“It is theoretically possible for Crown Law or anyone else to try and lay a contempt charge indictably.”
>Not according to paragraph 10 of the S.Ct’s decision
I did say ‘theoretically’. You are correct to the extent that a prosecutor would be pushing it up a very steep hill with minimal chance of reaching the top.
Vote: