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Siemer’s right-to-jury case

By Steven | June 11, 2010

Predictably, Vince Siemer is not happy about the Supreme Court’s 17 May decision to cut his contempt sentence to 3 months instead of 6. (In fact, he has applied to have it recalled. Good luck with that, Vince).

For someone who regards the NZ judiciary as largely corrupt, he’s a glutton for punishment: he goes back to court again and again. Curiously, though, the one appeal he didn’t bring was against the High Court’s rather troubling order to debar him from defending the defamation case against him. Siemer also says he’s planning a habeus corpus application. Given the amount of ink the courts have already spent on Siemer’s claims, let’s just say the application seems optimistic.

Siemer did hit on a problem with our contempt laws. The Bill of Rights says we have right to jury if charged with an offence for which we can be jailed for more than 3 months. Contempt can land you in jail for more than 3 months. Where’s the right to a jury?

The Crown sought to maintain the distinction between civil contempts and criminal contempts.Criminal contempts are about punishing someone for prejudicing the administration of justice.Civil contempts are merely to coerce people to obey court orders. So civil contempts aren’t really criminal. They’re not offences. Ergo: no right to a jury. (The lovely irony here is that this is the approach taken in Siemer’s own country, the United States. His right-to-jury argument wouldn’t have flown there).

The Court of Appeal bought this to some extent, but ended up ruling that you’re not really being imprisoned for more than 3 months if you can get out by agreeing to comply with the court order you’ve been jailed for breaching. The Court jiggered Siemer’s jail term so that he could get out early if he agreed to comply and promised not to breach the order again.

The Supreme Court took a different approach. It has now all but demolished the distinction between civil and criminal contempt. The minority say it’s “best avoided as unhelpful”. The majority say it doesn’t work “in this context”. All the judges agreed that this form of contempt does create an offence for which you can be liable to more than 3 months in jail. So it triggers the right to a jury.

But the rights in the Bill of Rights are not absolute. They can be restricted if the limitations are prescribed by law and can be demonstrably justified. Two judges thought the right of courts to hold people in contempt and send them to jail without a jury trial is demonstrably justified. Judges need these powers to act quickly to address challenges to the authority of the court and maintain public confidence in the justice system. You can’t go giving someone a jury trial every time they wanted to breach a court order. Besides, it will usually be pretty clear that there’s been a breach. And the accused will still be given most criminal protections (the judges seem to indicate that rights of cross-examination are included, which I think is new in NZ). Anyway, these powers are to be exercised with the greatest restraint.

The majority judges agreed with pretty much all of that. The “it’s only a civil contempt” argument didn’t wash with them. They thought the right to a jury trial was triggered. They also thought that jury trials were unfeasible in the context of contempt cases. They added that it would undermine the authority of the court to have juries enforcing judicial orders, and it would be tricky for juries to interpret court orders and work out whether they were breached. (Spare a thought, then, for the people who have to work out what they mean in order to comply with them! In reality though, as the minority judges point out, it’s usually going to be very straightforward to work out whether a party is in breach of an order. No more difficult, I might add, than working out whether someone’s breaching some of our curlier criminal laws, which has always been the province of the jury).

Where the majority judges parted company with the minority was in their conclusion about whether longer judge-ordered jail sentences for contempt were demonstrably justifed limitations on the right to a trial by jury. The majority thought not. Prison is a severe punishment. Contempt penalties are open-ended. In one US case a man languished in jail for 14 years. What to do, then? They weren’t prepared to give everyone jury trials. They make a (rather unconvincing, I think) big deal of the fact that NZ has never given anyone a jury trial for contempt before:

It would be a bold step to introduce it here for the first time as a by-product of s 24(e).

 A “by-product”? You mean, like, complying with the actual words of the right to jury contained in s 24(e)? And why isn’t it equally bold to hack back the maximum penalty for contempt from what’s existed through the ages?

The majority decided that the only answer was to cut back the maximum prison penalty for contempt to 3 months. That maximum applies, on the face of it, to everything from breaching a timetable order to deliberately publishing some information so highly prejudicial that a trial has to be abandoned midstream.

Does 3 months seem too little sometimes? Not usually, say the majority judges. And anyway, in cases like Siemer’s at least, if he keeps refusing to comply with the order, he’ll be committing a further offence, and we can pop him back in jail for another 3 months. And then another. And another.

I’m not sure there’s an easy solution here, and this possibility of repeated punishment is not exactly unprincipled, but it sits rather uncomfortably with the majority’s rhetoric about the gravity of a prison sentence making restrictions on the right to a jury unjustifiable.

I think we can probably expect some legislation in due course specifically authorising longer penalties for contempt.

The upshot for Vince Siemer is that he’s off to prison for three months, unless his recall or habeus corpus applications succeed. For him, this result is like some conjuring trick the Supreme Court has come up with to deny him a right to a jury trial. He continues to assert (and to try to argue at every opportunity) that he was never in contempt of court in the first place.

Some other notable points:

— The Supreme Court takes it for granted that the Bill of Rights can be used to fundamentally re-configure the law of contempt (hat-tip to Claudia Geiringer for this point). The Supreme Court take a strongly purposive approach to the Bill of Rights – it’s designed to offer robust criminal protections and should be interpreted broadly and not technically. (That approach gets interesting in other cases where BORA rights clash with a Parliamentary purpose to achieve something else, like regulating electoral advertising or offensive behaviour.)

— It seems that those accused of contempt have the right to call and cross-examine witnesses, even for “civil”-type contempts.

— It also seems that the law of contempt is sufficiently clear to satisfy the requirement that it be “prescribed by law”. I’m not so convinced about that.

— The Chief Justice and McGrath J (the minority judges) seem to see perverse acquittals by juries as a part of their constitutional function.

Topics: Contempt of Court, NZ Bill of Rights Act | No Comments »

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