Siemer wins

I blogged on the 2nd of March the Supreme Court hearing of Siemer v Solicitor-General, after being allowed to sit on the media bench to report on it.

I concluded:

• 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

And as it turns out, I was pretty close to the mark. While Siemer was found to have breached injunctions and committed contempt, the Supreme Court upheld his appeal against the six months sentence from the Court of Appeal, and in fact has ruled that no court in NZ can sentence someone to more than three months jail for contempt.

This is quite a significant decision, and does go to show that even “nuisance” litigants like Vince Siemer can end up in doing good, by having the Supreme Court uphold the right under the BORA for no one to face jail of more than three months without a jury trial. Of course Parliament may change BORA n this regard, but until they do it is good to have the courts uphold the law.

Siemer has to surrender himself to the High Court by 4 pm on the 20th of May for a three month sentence unless he complies with the 2005 injunction and provides a written undertaking not to breach it.

What is interesting is that the Supreme Court divided 3-2 on the appeal, with the Chief Justice and Justice McGrath in the minority who voted to decline the appeal. Some extracts from the judgement:

Two further factors indicate that the use of the summary process is fair and not arbitrary, in its impact on litigants, in a way that a jury trial would not be. First, in most cases of contempt there will be little dispute concerning the underlying facts, determination of which is the primary function of the jury. The main issue will usually be rather whether the facts amount to contempt, on which a direction as to the law would be given to the jury if the procedure of a jury trial were to apply. Secondly, referring to the present context, most contempt cases involving breach of court orders are brought by private litigants. It would add greatly to cost, time, delay, expense and complexity of litigation if litigants had to enforce rights already obtained through court proceedings. This is so whether or not the proceedings were brought by a public official such as the Solicitor-General. For a party to have to go through court proceedings to enforce rights it had already obtained from a judgment of the court would be grossly unfair and seriously undermine public confidence in the rule of law.

This is a pretty key point. It would be very unfair for litigants if after having already had certain rights established, they could only get them enforced by recourse to a jury trial. This is why the Chief Justice concluded:

It is true that the summary process under the common law makes a jury trial for common law contempt impossible …

The common law summary procedure remains the only means yet identified which enables effective protection to be given to the threats to the rule of law that all contempts provide. The unusual nature of the procedure emphasises the gravity of the threat to the administration of justice and in the eyes of the court. The procedure also adequately protects persons who come before the court. For all these reasons we consider the constitutional importance of the objective of the summary process and the impact that accommodating a jury trial would have on the courts’ ability to ensure the effective administration of justice clearly indicate that the procedure is a proportionate response to the needs of the rule of law.

Hence the Court agreed that a jury trial for contempt is just a no go. For what it is worth, I agree.

They then disagreed on how to weigh that decision up against BORA which said you need a jury trial for offences which carry a sentence of more than three months.

The CJ and McGrath J concluded:

It follows that we consider the summary procedure for all contempt of court proceedings is a justified limitation of the right to a jury trial under s 24(e). The summary procedure accordingly is not in breach of the Bill of Rights Act.

But the majority disagreed. They concluded:

We have accordingly been brought to the view that as a necessary consequence of the enactment of s 24(e) the power of a New Zealand court to impose a sentence of imprisonment for contempt has been limited to imprisonment for no more than three months (and/or a fine).

It will be interesting what happens if Parliament changes 24(e) so that jury trials are only needed for possible sentences of greater than two years. If so, I presume that will become the maximum punishment for contempt automatically.

It will be interesting to see if Vince Siemer complies with the injunction before Thursday, or if he chooses to go to jail.

The decision may also be a relief to Whale Oil. He is currently only facing charges for breaches of name suppression (which is a fine only). However if he continues to (allegedly) breach orders, it is possible he may get charged with contempt at some stage. If he is, at least he will have the comfort of knowing his possible stay at Mt Eden is a maximum of three months!