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Siemer loses again

By Steven | May 14, 2012

The Court of Appeal has dismissed Vince Siemer’s appeal against being held in contempt for posting a suppressed judgment about the Urewera case. (I discussed the High Court decision here, predicting this appeal and this outcome). Of interest to trainspotters is the way the Court of Appeal has grounded the court’s ability to suppress parts of a judgment in its inherent powers (possessed by District Court judges as well as High Court judges, and allowing them to manage the proceedings to ensure fairness). That’s in contradistinction to inherent jurisdiction – extra powers possessed only by superior court judges.

Justice Harrison puts the heart of the case pithily:

Open justice is an empty concept if a Court lacks effective powers to ensure that it is able to do justice in the open.

In other words, some ability to suppress some things for some time may be needed to ensure that a fair public trial can take place. (An obvious example is that juries shouldn’t be told of the previous criminal convictions of the defendant).

Also interesting: the Court of Appeal rather confines this power, speaking only of an inherent power to postpone publication on a limited and temporary basis, and for the purpose of ensuring fairness. In the past, as the judges note, this power has been exercised in wider circumstances, including the making of permanent orders in some cases. On one reading of this judgment, that’s not open any more.

A few other points:

– I said in my earlier post that I wondered whether the extent of this suppression order (basically, the whole judgment about whether separate trials should be held, and whether they should be before juries) was necessary to do justice to the parties. I still wonder that. Presumably we’ll be able to see the judgment now that the case is over and make our own minds up about that.

– The judges said it might have been “preferable” if Justice Winkelmann had given reasons for the suppression order, but “the reason in this case was evident to an informed and objective reader”. Well, I guess that lets me out. I understand the general principle of fair trial she was aiming to protect, but I really have no idea why the whole judgment needed to be suppressed to achieve that. It seems to me that she was essentially deferring to a request by the defendants without giving much thought to open justice at all. To be fair, it was certainly significant that the defendants sought the suppression, that the judgment surely contained information that might have caused prejudice in jurors, and that working out which bits to suppress and which bits to allow might have been quite a chore.

– Still, I think the Court of Appeal makes too much of the fact that suppression was at the request of the defendants’ lawyers:

Defence counsel’s opposition to the Crown’s application to vary the suppression order… attests to [the suppression order’s] importance.

It’s fair to say that Court of Appeal judges are not always so quick to assume the importance of a defence argument from the mere fact that it was made. The Court of Appeal then concludes, with no further reasoning, that

It follows that we reject Mr Edgeler’s secondary argument that the suppression order was so excessive as to be made without jurisdiction.

– One of the reasons the judges give for departing from the English practice (which doesn’t allow these general common law suppression powers) is that it’s one of those situations where conditions in NZ justify different rules:

New Zealand courts are best placed to assess local societal conditions justifying the power to make orders.

Okay, so… what are those local societal conditions that justify NZ courts giving themselves wider inherent powers to suppress information than the English courts? The judges don’t say. I would have thought that the rapacious tabloid environment in the UK would suggest that “local societal conditions” point in the other direction.

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