Siemer v Solicitor-General

Proceedings have just started in the Supreme Court with the full bench of five Justices, and I am live blogging from the media bench.

Robert Lithgow is appearing pro bono for Vincent Siemer in seeking leave to appeal appealing a decision of the Court of Appeal.

Siemer has had a long standing feud with receiver Michael Stiassny and various items on a website he ran have been ordered to be removed. Siemer was prosecuted by the Solicitor-General for refusing to do as contempt of court, and was sentenced to jail for a finite period.

The issue is that as the Solicitor-General did not seek a term of less than three months, then should Siemer have been entitled to a trial by jury under the NZ Bill of Rights Act 1990.

A major aspect of this is whether or not use of contempt of court is a criminal process or civil process.

Chief Justice Elias is interjecting quite frequently.

Lithgow is arguing that rather than have the Court of Appeal reduce the term of imprisonment, they should have quashed the conviction for contempt and ordered a jury trial.

Finally another Justice has interjected. Not sure of his name, but the Justice sitting on the far right (from my view).

CJ Elias has interjected around a dozen times, which may be seen as scepticism, but she has also commented she is favourable to one of the arguments.

An interesting discussion on what will happen is Siemer does get his jury trial, and whether he will argue that the injunctions should not have been issued, rather than the he did ot breach them.

Lithgow concedes his client is most likely to want to argue the injunctions should not have been issued, but that this is not relevant as the court will control the trial, and can rule on what is allowed.

The Registrar has kindly given me a seating plan for the Justices, so I can now identify that Justice Anderson was the Judge referred to above. Justice Blanchard has questioned Lithgow considerably also.

It is tempting to try and conclude that the level of questioning means a Judge is hostile to the argument, but this is not necessarily the case. What I will find interesting is to contrast how the Crown Law arguments are treated.

Back now after the morning tea break. Focusing on a 1908 English case on contempt. Only other media here are Law Journal editor Bernard Robertson and NBR’s Rob Hosking.

The discussion is how to assemble a jury where there has been no criminal indictment.

The Court of Appeal has already found that the contempt process was essentially a criminal matter (unlike the High Court), but did not grant a jury trial, and instead reduced the sentence so no trial was necessary. Lithgow says main point is he received a criminal sentence originally.

If the original conviction/order is quashed, then the Solicitor-General could seek a new trial, and seek a punishment of less than three months. However it is debatable whether the SG not seeking a longer sentence means that this is binding on the court, and hence even in that circumstance could still require a jury trial.

Lithgow is arguing that a jury can be trusted to deal with a matter of contempt, as the contempt laws exist for the sake of citizens.

CJ Elias is trying to move Lithgow on, saying that if there is a right, there is a right, regardless of whether or not one thinks it is suitable for a jury.

The debate has now moved to whether or not Siemer had complied with the injunction as he did remove some material from his website. Lithgow argues there was no way to know exactly what material needed to be removed.

Justice Anderson makes the point that Siemer could have applied to the High Court to get the injunction clarified. CJ Elias says the SC will not give an advisory opinion during the hearing on the injunction. She also says that the injunction does not require the entire website to be taken down – just material that breaches the injunction.

My feeling is that Siemer is unlikely to prevail on the issue of asserting he did not breach the injunction. But on the wider issue of the right to a jury trial, still very hard to read until one hears the Crown Law arguments.

Justice Blanchard has said the terms of the injunction are not complicated. Lithgow argues what remains on the website is merely a few splinters, and how far does one go in removing material, when the vast majority has been removed.

Madeleine Laracy has just started speaking for the Solicitor-General. Says that requiring jury trials to enforce contempt breaches would lead to many

more people ignoring court orders, so they can take their chances pleading before a jury. Is now quoting my favourite Justice Scalia on how contempt is just enforcing a civil process.

Justice Anderson has asked if there is any other civil proceeding that can lead to imprisonment, now that they no longer jail for debts. Laracy responds that prison can be avoided my complying with the court orders, and is essentially a choice for Siemer.

The Assistant Crown Counsel is Briar Charmley. So far the “off-siders” have not got to speak.

Just back from the lunch break. My views of the exterior remain unchanged. Up close it is even worse. The rails look dusty, and it really belongs in a 1950s Soviet museum. However the inside is quite different. What I most like is that the court room itself is just inside from the main door, so it is really easy to access it. And the interior of the court room is lovely. I’d take a photo of it, except I didn’t apply in advance for permission – may do so next time.

Justice McGrath is asking why there should be a distinction between civil and criminal contempt. Laracy says criminal law’s aim is to punish, and civil law’s aim is to coerce to comply and is not unconditional and can be mitigated or averted by compliance.

McGrath responds that the distinction is academic because at the end of the day it is still jail. Laracy says it may only be jail if they do not comply. Quite amusing to see a former Solicitor-General cross swords with Crown Law.

Justice Wilson has also said he finds the distinction artificial.

Overall Crown Law is getting reasonably battered on the civil vs criminal argument.

Laracy says no case in NZ history has had contempt dealt with as an indictable criminal offence, and referring to the Nash case.

Have to head off now. Very dangerous to make predictions on a case when you have not read all the material, but my impressions are:

• Siemer will not succeed at being found to have not broken the injunctions
• Siemer will succeed at having contempt charges with no maximum term of imprisonment deemed to be a criminal matter, which could require in future a jury trial
• But I do not think he will succeed in getting a new trial

I may be wrong on everything though 🙂

I also think at some stage the Government may amend the law so that an offence of contempt with a maximum three month imprisonment term is made available as a judicial option. This would be a sensible measure so there is something less draconian that possible indefinite imprisonment.