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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 | Comments Off on Siemer in Wonderland 2