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Siemer in Wonderland 2

By Steven | December 7, 2008

Those dastardly Court of Appeal judges, O’Regan and Arnold JJ, having brazenly refused to recuse themselves from Siemer’s case, cunningly affected to hide their biases by asking questions of counsel that rather suggested some sympathy with Siemer’s right-to-jury argument…

The real news flash from the hearing was that the Crown explicitly conceded that contempt defendants in criminal contempt cases must be entitled to a trial by jury. That would have included, for example, Tim Pankhurst in the Fairfax trial (though in the end, he didn’t seek a jury).

However, the law of contempt has traditionally distinguished between such criminal contempt cases and civil contempt cases – for example, when the courts are exercising powers purely to enforce a court order. In those cases, the defendant may be in danger of going to jail, but jail isn’t used to punish, but to enforce compliance, runs the argument. The expectation is that the person only goes to jail until they comply with the order, which they could choose to do at any point – so they effectively have the “prison keys in their own pocket”. The Crown says that judges need to be able to deal with such cases quickly and without the rigmarole of a jury. An example is the Kaye Skelton case, where she was jailed until she agreed to provide information about the location of young Jayden Headley, who’d gone missing amid a custody battle.

One problem for the Crown: the court in Siemer’s case ignored the indefinite detention penalty sought by the Crown and instead told Siemer he had two weeks to comply with the order, or he’d be off to jail for six months. He didn’t comply. So now this does look like a punishment. And he can’t foreshorten it by caving in and being released. No keys-in-the-pocket there.

And that relates to the other big problem for the Crown (and the judges). The distinction between “purely coercive” contempt cases and “punitive” ones doesn’t really stand up. They all have an element of punishment. And even keys-in-the-pocket jail still looks like jail – at least in the sense that a person charged with an “offence” is entitled to a jury trial under the Bill of Rights Act. How exactly is the court to draw a principled line between those contempts that engage a right to a jury trial and those that don’t?

Topics: Contempt of Court | 3 Comments »

3 Responses to “Siemer in Wonderland 2”

  1. nationalblognz Says:
    December 7th, 2008 at 2:37 pm

    Whilst his case raises an interesting issue with regard to the civil/criminal contempt distinction what still shocks me at Vince’s blatant disregard for court orders – simply not complying is not a legitimate course of action to take! My question to Vince is why did he not simply push for a trial to put his defence of truth forward. Clearly Stiassny isn’t going to bother if Vince won’t even comply with an interim injunction.

  2. Steven Says:
    December 7th, 2008 at 7:23 pm

    I understand that Vince Siemer has in fact been taking steps to bring the defamation case on to trial, including appling to have it set down for hearing, but they haven’t been successful so far. I don’t know the details. There have been some interlocutory issues that (surprise surprise) led to (unsuccessful) appeals by Siemer. But it has to be troubling that a contested interim injunction has stood for several years.

    In the Court of Appeal, Robertson J asked Vince whether he’d actually formally applied for revocation of the interim injunction. The answer seems to be no. Siemer certainly has asked judges to have it discharged on many occasions and seems to regard it as their job to recognise that it was improperly obtained in the first place.

    I wouldn’t be surprised if Siemer takes the judge’s cue and makes a revocation application. Without having researched the law, I’d imagine he’ll have to come up with some new evidence or argument, but the length of time that’s passed must give judges pause at the very least.

  3. nationalblognz Says:
    December 7th, 2008 at 8:40 pm

    He’s already been sent to prison yet he persists. It all strikes me as so very misguided for a seemingly intelligent man. My understanding is that interim orders can be overturned where there is an error in law, or the, “no reasonable judge would..” test is satisfied.

    Several years may seem like a long time, but it’s only been in force so long because of Siemers defiance which has led to the complications surrounding contempt. I know defamation cases are expensive business, but if he’s telling the truth why is he fighting and mocking the system making an enemy of the entire judiciary. I guess he’s the only one who knows, I for one can’t work it out.


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