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Siemer in contempt

By Steven | July 7, 2011

Vince Siemer has been found in contempt of Court again for, well, for being in contempt of Court.

In brazen defiance of a suppression order plastered all over the front of Winkelman J’s decision denying the Urewera defendants a jury trial, Vince posted the judgment on his website. The suppression order said:

THIS JUDGMENT IS NOT TO BE PUBLISHED (INCLUDING ANY COMMENTARY, SUMMARY OR DESCRIPTION OF IT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE OR OTHERWISE DISSEMINATED TO THE PUBLIC UNTIL FINAL DISPOSITION OF TRIAL OR FURTHER ORDER OF THIS COURT. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.

Adding insult to injury, Siemer tooled around with the last sentence in that order so that it read (on his website, Kiwisfirst):

PUBLICATION IN LAW REPORT OR kiwisfirST IS PERMITTED

Adding further insult, he still hasn’t taken it down. Looks like another jail stretch for Vince, though thanks to the way the law of contempt has been reshaped during one of Vince’s earlier trips to the Supreme Court, it can’t be longer than 3 months.

What may be most surprising is that a breach of a court order this flagrant needs to be the subject of a lengthy court hearing and a 71-paragraph ruling. Partly it’s because he ran some dopey arguments. It wasn’t published on the internet, he contended. The internet is the wires connecting the actual computers where things are published. Anyway, his website is a “Law Report”. And the order was on the front of the decision so it doesn’t count. There was more in this vein, readily dispatched by the full bench of the High Court (Simon France and Mackenzie JJ).

Much more interesting was his argument that judges have no inherent power to issue blanket suppression orders like this. It’s an argument that has the backing of the Privy Council in Independent Publishing Co v Attorney-General of Trinidad and Tobago [2005] 1 AC 190. It also seems consistent with section 138 of the Criminal Justice Act 1985 (take a look at subsection (5):

138 Power to clear court and forbid report of proceedings

(1) Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.

(2) Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:

(a) An order forbidding publication of any report or account of the whole or any part of –

(i) The evidence adduced; or

(ii) The submissions made:  

(b) An order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses:

(c) Subject to subsection (3) of this section, an order excluding all or any persons other than the informant, any member of the Police, the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.

(3) The power conferred by paragraph (c) of subsection (2) of this section shall not, except where the interests of security or defence so require, be exercised so as to exclude any accredited news media reporter.

(4) An order made under paragraph (a) or paragraph (b) of subsection (2) of this section—

(a) May be made for a limited period or permanently; and

(b) If it is made for a limited period, may be renewed for a further period or periods by the court; and

(c) If it is made permanently, may be reviewed by the court at any time.

(5) The powers conferred by this section to make orders of any kind described in subsection (2) of this section are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.

Read literally, subsection (5) seems to cull back courts’ rights to suppress anything except evidence and submissions. And yet they routinely suppress whole judgments. There’s a pretty decent argument that this clause does away with any inherent powers judges might have to do this.

Well, there used to be. But the full court has held that judges do have this residual power. They based this on a narrow reading of subsection (5), a case from 1975, line from a recent Court of Appeal decision, and the fact that the Court of Appeal and Supreme Court have exercised this power themselves, and therefore must believe they have it. As authority goes, that’s rather thin gruel. Of course, the alternative would be that hundreds of suppression orders were unlawful, an unappealing conclusion for the two judges hearing this case, both of whom had probably made many such orders themselves.

Still, as a matter of policy, it seems right that judges should have inherent powers to make any orders necessary to ensure fairness to the parties. The judges emphasised this point.

It’s a fair point, as far as it goes. But it doesn’t seem to go as far as this case. The suppression order we’re talking about, remember, suppressed the reasons for denying 15 Urewera defendants a jury trial. In fact, it even originally suppressed the fact that they’d been denied a jury trial. The Crown itself had argued before Justice Winkelmann that this was far too broad and wasn’t necessary to ensure the defendants got a fair trial. Justice Winkelmann changed her mind a bit and allowed publication of the fact that the defendants had been denied a jury trial, though not of any other part of the judgment. It seems clear from court records that she did so because some defence lawyers asked her to. She never provided any reasons for a conclusion that suppression of the entire judgment was necessary to avoid unfairness. It seems hard to imagine that it was.

Did Justices France and McKenzie agree with her? They didn’t go there. They said as long as the order was within her powers and exercised for a proper purpose (fairness of trial), it wasn’t their job to look any further. If anyone wanted to challenge the order, they could do so:

If in disagreement with it, a person may test it in Court or apply for it to be varied.

That, they said, was how Vince should have challenged the order.

So yet again, Vince Siemer is being punished for disobeying an order that may not have been lawful in the first place. I don’t think we should weep for him, though. It may well be that some of the material in the judgment might prejudice the upcoming trial, and Siemer was happy to publish the lot. What’s more, there was a proper way to challenge the order, and Vince didn’t follow it. At the heart of this case is a man who simply decided he didn’t want to follow a court order (or thought he knew better about its legality than the judges) and so breached it.

I suppose we can expect an appeal. I doubt we can expect a different result though.

Topics: Contempt of Court | 43 Comments »

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