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By Steven | July 31, 2013
When Vince Siemer was charged with contempt for flagrantly breaching a court suppression order, he made a novel argument: he was upholding the rule of law.
The suppression order was made by Winkelmann J in the famous proceedings against the Urewera 18 relating to their alleged para-military exercises in the bush. Winkelmann J ruled that three of the defendants should be tried separately, and the remaining 15 should be tried by judge alone.
Winkelmann J suppressed her judgment – including any reporting of the result. She didn’t give any reasons, but she clearly intended to protect fair trial rights. Her decision discussed evidence that may have later been ruled inadmissible. No defence representative opposed the order.
Mr Siemer was outraged. For him, this decision denied most of the defendants their fundamental right to trial by jury. For him, it was a clear breach of the law, including the Bill of Rights Act. (In fact, it wasn’t a clear breach of the law, but Mr Siemer seems unburdened by the distinction between a decision that may be open to criticism and one that is an attack on the very foundations of justice so blatant and destructive of the rule of law that it can only be the product of corruption).
For Mr Siemer, the suppression of the judgment was also appalling. How could a decision to deny defendants a jury be secret? The suppression order could not be valid. So he breached it by publishing the whole judgment on his website. Or, to put it another way, he took it upon himself to resurrect the rule of law from the dark moratorium of illegality into which the chief judge had consigned it.
For this he was found to have committed a contempt of court, and sentenced to six weeks in jail. As Mr Siemer eloquently puts it, “I can show no better respect for the rule of law than contempt for the judges who pervert it.”
In the Supreme Court, his lawyers advanced a battery of arguments. The courts have no inherent power to make suppression orders against the world. Or if they do, that power has been superceded by the Criminal Justice Act. Or it is inconsistent with the Bill of Rights Act. Or at least, it should have been exercised consistently with the Bill of Rights Act, but wasn’t. And in any case, anyone charged with breaching a court order must be allowed to argue its invalidity as a defence.
The judges all agreed that the court does have inherent power to issue suppression orders that bind non-parties (in contrast to UK law), partly for the slightly unsatisfactory reason that this is the way we’ve always done it. But these suppression orders may only be issued when they can be clearly justified – such as when the order is temporary and is necessary to avert a real risk to the fairness of a trial. (The majority found that this power had not been gazumped by legislation.)
This immediately presents a very interesting, and one would have thought, intensely relevant question. Did Winkelmann J’s order make the grade? Was it justified in these terms? It was designed to protect fair trial rights. But was it necessary? Would publication have created a real risk to the defendants’ fair trial rights?
The answer is fairly clear: it wasn’t. Or at least, it was plainly too wide for it to be wholly justified. The judge herself accepted this when the Crown applied twelve days later for it to be narrowed. She ruled that at least the result of her decision could be published. There was surely no ground for that ever to be suppressed. But she maintained the suppression of all of her reasoning. Was that justified? Her discussion of some of the evidence may well have created the possibility of prejudice (perhaps justifying suppression of portions of the judgment), but it is very difficult to see why it was necessary to suppress the whole judgment, particularly as there was surely strong public interest in the reasoning behind her decision to deny most of the defendants a jury trial.
But the Supreme Court didn’t find it necessary to assess the validity of the order. The majority found that, once the order was made by a judge who had power to make it, the courts will generally not allow someone charged with contempt to mount a defence that the order was invalid.
There are certainly powerful arguments to deny such a collateral challenge. We can’t have people breaching orders willy-nilly because they take it into their heads that they are invalid. Instead, they should apply to the court to have the order varied or rescinded. The Supreme Court found that this can be done by informal application, and that they may even have rights of appeal under the Judicature Act. Vince Siemer should surely have tried to challenge the order before he flouted it. This seems a tidy solution.
But is it? In fact, it’s not clear how readily courts have entertained such informal challenges. Mr Siemer and a supporter both had their (extremely belated) challenges to Winkelmann J’s order rejected by the High Court for lack of jurisdiction. No doubt things will be different now, and that will certainly be a comfort to Mr Siemer in his jail cell.
And isn’t there a more fundamental problem? Mr Siemer is in jail for breaching an order that certainly shouldn’t have been made in the terms that it was, and perhaps shouldn’t have been made at all. The Supreme Court unanimously emphasised the high threshold for such orders. But it also recorded that they seem to have become routine, and this one was issued without any supporting justification.
As the Chief Justice pointed out in dissent, the possibility of a contempt prosecution will surely act as a brake on people’s willingness to breach orders, even if they are permitted collateral challenges. In a remark that could almost have come from Vince Siemer, she noted that “a rule which countenances such injustice [the possibility of punishment of someone for breaching an invalid order] is not calculated to promote respect for the rule of law, the basis on which the requirement to observe court orders rests.”
Topics: Contempt of Court | Comments Off on Vince Siemer and Supreme Court accuse each other of contempt
