28 days for contempt of court

January 20th, 2011 at 8:20 am by David Farrar

Diane Joyce at Stuff reports:

An outspoken judge has jailed a man for 28 days for swearing at him from the public gallery, saying he’s had enough of criminals and their supporters being rude and arrogant.

Judge Tony Adeane, a district court judge working in Hawke’s Bay and Gisborne, said Gisborne had a “particular problem” with bad behaviour in court, after he jailed the man for abusing him.

Chief District Court Judge Russell Johnson said yesterday that members of the public yelling out to a judge was relatively new.

However, Law Society president Jonathan Temm said such behaviour had become “par for the course” in many courts, although it remained “very uncommon” for someone to be jailed for abusing a judge.

Perhaps it will become less common after this. My first reaction was that 28 days might be a bit over the top, but then I saw the specifics:

Grant, 26, of Gisborne, was in the public gallery to support a friend appearing in court. He was unhappy at the outcome of his friend’s appearance and, just as he was leaving, yelled out to Judge Adeane: “Is that all, c…?”

If you call the Judge a cunt in court, then you absolutely should be jailed for contempt.

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Siemer wins

May 17th, 2010 at 8:39 pm by David Farrar

I 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!

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Whale to Jail?

February 7th, 2010 at 12:54 pm by David Farrar

The SST reports:

Controversial blogger Cameron Slater is again under police investigation, this time for identifying on his website a primary school teacher accused of sex crimes against children.

And Slater last night stepped up his name suppression campaign, telling the Sunday Star-Times he was set to post the names, phone numbers and addresses of judges who award name suppression without “good reason”.

Slater is already facing five charges of breaching name suppression orders, after he published on his website the names of several high-profile New Zealanders before the courts, but whose identities were suppressed.

Justice Minister Simon Power said Slater’s threats to expose the personal details of judges on his website were “probably not helpful”.

But Slater said our officers of the court were making “improper” decisions and he wanted to take a stand.

“These judges are the people perpetrating the expansion of the original suppression laws beyond what was envisaged by parliament,” Slater said. “They are trying to rewrite the law by judicial meddling.”

I’ve often joked with Whale that he will beat me in the ratings, even if he has to do it from D Block!

He seems to be well on the way to both aspects :-)

In the Alexa ratings, Gotcha is ranked 124th most visited site by NZers. The previous weeks it was 118th and 112th. Kiwiblog is 122nd, and previously 121st and 117th, so in the weeks ending 17 January and 24 January, Gotcha was ahead of Kiwiblog in the Alexa rankings for New Zealanders.

As for making D Block, I’d say declaring war on Judges will help achieve that goal!

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R v Internet Part II

December 4th, 2009 at 2:10 pm by David Farrar

Before I add my comments, you can also see some summaries at Tech Liberty NZ blog (worth subscribing to also).

Also the Twitter feed is extensive. Over 250 tweets. Is one of the best Twitter coverages I have seen as we had nine or ten people et the seminar twittering and several people not there also commenting and asking questions.

The morning session was mainly focused on contempt of court, and the afternoon on name suppression issues.

Warren Young, the Deputy President of the Law Commission, gave an overview of the recommendations from their recent report on suppressing names and evidence. He said the threshold for getting name suppression shoudl be “extreme hardship” not just hardship as at present.

Most usefully he clarified that the recommendation relating to ISPs removing or blocking suppressed material is not meant to imply an obligation on ISPs to block overseas hosted material, just to remove material hosted on their own networks.

I asked a question about whom an ISP should be obliged to act on a complaint from – my preference is it should only be if the Crown Law Office or Police inform an ISP of suppressed material.

Judge Harvey spoke about the challenges of the Internet and supressed material, but did not think the horse had bolted. He made the case that one doesn’t have to achieve perfect suppression – it is often mainly aimed at making it hard for jurors to access material not relevant to the trial.

The final panel was myself, Sinead Boucher (Group Online Editor for Fairfax) and Ursula Cheer from Cant Uni Law School. Sinead and I talked about the issues we face from a practical point of view in trying to complay with the law, and Ursula touched on how different technologies come in and out of vogue with different challenges.

Now I can’t avoid mentioning a huge fuckup I did. It was one of the rare times I was speechless as I realised what I had done. I had a few slides to go with my talk, and I was talking about the recent high profile entertainer case, and was detailing the different sites you could find out on.

The point I was making was it was not just blogs, but the name was on Yahoo Answers, MSN NZ, was findable through Google search and even on the entertainer’s facebook page. I found it amusing that the entertainer himself could be liable for breaking his own name suppression.

rvi

I displayed the above page to show the comment someone had made on the page. I pointed out to the room packed full of lawyers from the Courts, Ministry of Justice, Crown Law, Law Commission etc (plus the Judge who originally dealt with the case) how careful I had been to draw green boxes over seven parts of the page to stop my showing the page, itself being a breach of the suppression order.

I went on to say how I then realised the URL gave the name away also, so had to go back and green that out also, and then also realised two of my open tabs displayed the name, and edited the graphic for a third time to green them out.

Just as I was about to move on, someone in the audience then pointed out that sadly I had overlooked the Google search box in the Google toolbar, and to my horror there indeed was the name of the entertainer (now behind a yellow-brown box). I was mortified as the audience started pissing themselves with laughter.

I mean how much worse can it be – you are boasting about how careful you have been to not break the name suppression order, and bang the name is up on the screen in front of everyone – and especially in front of that audience.

In the general discussion at the end, there was some discussion around the role of the media committee of the Courts. The TVNZ lawyer said the committee had one rep from print media and one from broadcast media, and many in the room thought an additional rep from Internet media could be a useful thing. Of course that is a decision for the judiciary, but it was agreed InternetNZ would write to the Chair to discuss the concept.

Feedback from participants was incredibly positive, especially from many of the lawyers. A common comment was how useful it was not just having lawyers there discussing things academically, but also having media and Internet practitioners with practical knowledge. There was a strong feeling that there should be more opportunities to get the various industries together on issues of mutual interest.

Kudos to InternetNZ President Frank March who MC’d the day well to finish ahead of time, and to the InternetNZ staff who primarily organised it. And most of all to the participants – had many great contributions not just from the speakers, but from the floor.

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R v the Internet

December 3rd, 2009 at 11:32 am by David Farrar

The seminar on the Internet and the Courts has been really good so far. You can follow it on Twitter here. It is also being filmed and will be viewable on the Internet.

Chris Finlayson gave a very amusing and interesting opening address. Referred to how someone once threw a cat at a Judge and the Judge said if you do it again, it will be contempt. It is indexed in law journals as “cat throwing-contempt-one cat allowed-two cats is contempt”.

He also said how relieved he was to find the room full of relatively normal people (ie lawyers) rather than Farrar-like hobbits :-)

Professor Tony Smith had what I considered a good suggestion that the Courts have a staffer who proactively looks for material before a trial starts that may be pose a risk to a fair trial, and asks voluntarily for temporary removal.

Solictor-General David Collins talked about how Internet issues take up a large amount of his time, and the inability of getting Yahoo to remove material. Is seeking an agreement between governments to seek to enforce each other’s court orders to ISPs. There are some risks with this approach, as if publishers are deemed to be subject to the laws of every country they have readers, the lowest common denominator can apply.

Steven Price said that compulsory filtering only happens in repressive countries like China and Australia. Heh. Said genie was out of the bottle but not sure if it is a problem. Thinks there should be less use of contempt.

Robert Lithgow QC said he was probably only person in room who has prosecuted for contempt, defended people for contempt, has been charged with contempt himself and in fact appears shortly in the Supreme Court for Vince Seimer over his contempt issues.

He agreed with Steven Price largely and said the law of contempt is fundamentally buggered and only getting at the nutters now. He also said that there is no constitutional significance to modern commercial media as we don’t need them now, as bloggers are the public! Said the press are watchdogs and mongrels. They bark indiscriminately and only interested in food and biting!

Radio NZ Political Editor (and Chair of EPMU Media Committee) Brent Edwards said Internet got around censorship in even most sinister regime, so will do so in countries like NZ.

Robert Lithgow suggested all court cases should have a static camera so people can view over Internet, and not rely on the media so much. I agree entirely.

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Suppression Orders and the Internet

November 17th, 2009 at 7:29 am by David Farrar

The Law Commission published yesterday a report and recommendations to Government on suppression order. One chapter deals with the Internet, which I will talk about in more detail. First the major recommendations:

  • starting point for considering publication of evidence and names should be a presumption of open justice
  • suppression should only be used in exceptional cases where there were compelling reasons
  • grounds on which suppression may be granted need to be clarified and tightened
  • development of a national register of suppression orders should be advanced as a matter of high priority.

These all seem good and sensible moves to me. The use of suppression orders has been growing, and they should be the exception, not the rule. Having tighter criteria is a good step in the right direction.

I am especially pleased to see the recommendation for a register of suppression orders. It is very difficult to sometimes know what has or has not been suppressed. And this is a complaint not just from me, but from many in the media.

With regards to the Internet, they recommend:

Where an Internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable.

The wording here is somewhat vague.  Under the best case scenario this is not greatly different from the status quo. ISPs already have an implicit obligation to remove material if it is in breach of a suppression order.

But what has not been defined is is what they mean by carrying information, and what they mean by “become aware”. It is one thing to require an ISP to remove material hosted by that ISP. It is quite another to require them to try and block information from other sources.  That would be highly undesirable, plus it won’t work. ISPs should be responsible (once notified) of material on their own networks, but not be ordered to block overseas sites such as Wikileaks etc.

What constitutes bringing the information to the attention of an ISP will need clarification also. I have no problem with an ISP having to remove material upon official request by the Solicitor-General and Crown Law. But just having a member of the public allege hosted material breaches a suppression order should not be enough. The ISP is not competent to decide what is or is not a breach of a suppression order – hence it should be an official agency that has to make the request.

So overall the main recommendations look to be a move in the right direction. The recommendation relating to the Internet is too vague to be able to say for sure at this stage.

In a fit of good timing, there is a seminar on the 3rd of December where some of these issues can be discussed and debated.  The seminar, titled R v The Internet, is hosted by InternetNZ, the Law Commission and the Ministry of Justice.

The seminar is at Te Papa, and has an impressive line up of speakers, including:

Hon Christopher Finlayson, Attorney-General
David Collins QC, Solicitor- General
Tony Smith, Dean, VUW Law School
Steven Price, Barrister & author of Media Minefield
Robert Lithgow QC
Brent Edwards, Media Committee, EPMU
Warren Young, Deputy President, Law Commission
Judge David Harvey
Sinead Bouchier, Group Online Editor, Fairfax
Ursula Cheer, Associate Professor of Law, University of Canterbury

I’m also taking part in one of the panels. I think it will be a fascinating day. It is intended for legal, media, and Internet professionals, and anyone can register to attend for $100 + GST. You can also apply for a discounted rate.

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DPF on Breakfast TV

July 23rd, 2009 at 12:00 pm by David Farrar

I was on Breakfast TV this morning talking about the issues I (and others) might face around potential contempt of court and the Weatherston case. I’m glad I got invited on, because I thought it unfortunate the segment on One News last night didn’t mention that I had taken immediate action to remove any problematic content the moment concerns came to my attention. I don’t want to be seen as someone saying that laws don’t apply to the Internet. They obviously do. There are of course significant issues around the practicality of certain laws, but that is an issue for the future – and the Law Commission has a discussion paper out on related issues such as suppression orders and the Internet.

The Breakfast interview I thought covered the issues quite well. You can view it here. Also a story based on it here.

I was highly amused to get a call from friends a bit later in the programme, telling me that my name came up during discussions on what gift Paul Henry should take with him to New York to give to Helen Clark. They are running a poll on it.

You can view it yourself at around 1:15 through this video. A transcript:

PAUL (reading an e-mail): Paul Henry, can you take Phil Goff with you as a gift to Helen Clark and just sit Phil Goff on the edge of the table there.

PAUL: Actually David Farrar would be a nice table weight. He’s such a sweet man isn’t he. He’s the blogger we just had in.

ALI: He’s somebody you just want to have sitting on your desk constantly so you can just ask him for an opinion on stuff.

PAUL: I’ve got David Farrar in a little box out the back. Let’s open the lid and ask him a question.

PAUL: He just seems very cuddly doesn’t he. He’s just a nice … I don’t know if I should be saying that about another man. Possibly not actually.

ALI: It’s too late now

I was very amused. I would have preferred it was Ali calling me sweet and cuddly but hey you take compliments from anyone :-)

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No more comments during trials

July 12th, 2009 at 9:26 am by David Farrar

The HOS reports:

The Solicitor General’s office is investigating whether internet bloggers and social networking sites have breached contempt of court laws in the Sophie Elliott trial. …

Solicitor General spokeswoman Jan Fulstow said on Thursday the office was considering what action to take over a Facebook group called “Clayton Weatherston is a Murderer. He committed murder, not manslaughter” as well as comments on David Farrar’s Kiwiblog.

I commented to the HOS:

Kiwiblog creator David Farrar said he was generally “careful to avoid commenting on trials while under way”.

He gave the Bain trial as an example of him saving commentary until after the jury retired.

“In the Weatherston trial, the basic facts are not in dispute,” he said.

“Hence, there is no dispute about innocence – only whether or not he is found guilty of murder or manslaughter – a decision for the jury guided by the Judge. I understand jurors are usually specifically warned to not read information on the internet about the case.

“As I have done in other cases, if I am asked to delete comments that may be prejudicial, I will generally do so.

I think it is fair to say though that my anger at the fact the victim seems to being blamed for the murder, may have led me to not being as cautious as I should have been.

I am unsure as to what are the limits of acceptable discussion on criminal issues. Should you just not comment during the trial, any time after depositions, or any time after arrest?

If someone is found guilty I presume you can then comment, but what if they then lodge an appeal?

Anyway as I don’t wish to end up in judicial trouble, my interim policy is now going to be to now have any discussions on criminal issues except in a general law reform sense. In a way it is a pity because we actually have several defence lawyers comment here and I find their contributions welcome.

As I said I am genuinely unsure where the line should be drawn, and would welcome any advice on this. In the Veitch case we saw details published in Sunday newspapers for weeks on end, and that did not appear to be an issue.

Maybe there is no hard and fast boundary as to when you can or can not comment online, or as to what you can say, but perhaps a useful initiative would be the creation of a plain English guide for bloggers etc on what they can and can not comment on in terms of criminal justice issues. This could go on either Crown Law or Ministry of Justice website. I know I would find such a document bloody useful, and I suspect so would many others.  Unlike commercial media we don’t have lawyers on call.

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