Siemer v Chief Executive of the Department of Corrections

[2013] NZHC 1953

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-3245 [2013] NZHC 1953

UNDER	the Habeas Corpus Act 2001
IN THE MATTER OF	an application for a writ of habeas corpus
BETWEEN	VINCENT ROSS SIEMER Applicant
AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

Hearing:	2 August 2013
Counsel:	T Ellis and G R Edgeler for applicant D J Perkins and E J Devine for defendant
Judgment:	5 August 2013

RESERVED JUDGMENT OF DOBSON J

[1]      Mr Siemer   is   currently   serving   a   notional   sentence   of   six   weeks’

imprisonment at Mt Eden in terms of orders made by a Full Bench of this Court on

2 September 2011.  On his behalf, Mr Ellis has made application for a writ of habeas corpus, claiming that a warrant of commitment signed by two Judges of this Court is wrong in its terms as a matter of law and is therefore a nullity.  Mr Ellis argues as a result that Mr Siemer’s detention is unlawful.

[2]      By way of background, the Solicitor-General, by way of amended contempt application  dated  16 March  2011,  invoked  the  High  Court’s  residual  inherent jurisdiction to deal with conduct constituting contempt, plus s 401(3) of the Crimes Act 19611  and  r 19.3 of  the High  Court Rules.   After a hearing in June 2011,

MacKenzie  and  Simon  France  JJ  delivered  a  judgment  on  4 July  2011,  which

1      As it then was, since repealed.

SIEMER v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2013] NZHC 1953 [5 August 2013]

concluded that the nature of the deliberate breach by Mr Siemer in publishing a judgment which had a prohibition on publication merited a finding of contempt.

[3]      Their subsequent order on 2 September 2011 that Mr Siemer serve a term of

six weeks’ imprisonment was stayed pending appeal.

[4]      Subsequently, appeals to the Court of Appeal and Supreme Court were both unsuccessful.  The ultimate outcome was an order pursuant to the judgment of the majority of the Supreme Court on 12 July 2013 that Mr Siemer was to surrender himself to the Registry of the High Court at Auckland at 9 am on Monday, 15 July

2013.

[5]      There  was  no  evidence  before  me  of  the  circumstances  of  Mr Siemer’s apparent non-compliance with that order.   Counsel advised me that on a weekend day after 15 July 2013, Mr Siemer attempted to present himself at Mt Eden Prison, and after a period of delay because the prison was not operating facilities to receive prisoners on that day, commenced his sentence.

[6]      On  12 July  2013,  the  day  the  Supreme  Court’s  judgment  was  issued, MacKenzie and Simon France JJ executed a “warrant of commitment for sentence of imprisonment”, which it is safe to infer was an adaptation of a form prepared by the Court’s Registry for execution by a sentencing Judge, consequent upon sentencing an offender to a term of imprisonment.

[7]      Alleged errors with the form of this warrant that were relied on by Mr Ellis were:

Under the heading was the reference “(Section 56C Judicature Act 1908)”, together with a reference to the nature of the proceeding that had led to the sentence constituting “contempt of Court pursuant to s 56C(2) Judicature Act

1908”.

of imprisonment”, plus numerous references in the body of the warrant to

Mr Siemer having been “sentenced”, and to the start date of his “sentence”.

Areference to Mr Siemer having been legally represented, at the stage of the proceedings at which he was “at risk of conviction”, arguably giving rise to

an implication that he was sentenced following the entry of a conviction.

[8]      Mr Ellis  argued  that  the  references  to  s 56C  of  the  Judicature Act,  and subs (2) of that section, were wrong because that section is confined to contempt in the face of the Court, when the conduct for which Mr Siemer was responsible did not constitute contempt in the face of the Court, and was rather an obstruction or interference with the due course of justice.

[9]      I  note  that  the  commentary  to  s 56C  in  McGechan  suggests  that  s 56C encompasses both categories of contempt of Court.2    The urgency required for completion of this decision means that it is not the occasion on which to provide a definitive analysis on the boundaries of contempt that might come within s 56C.

[10]     In submissions seeking to downplay the effect of the elements of the warrant criticised by Mr Ellis, Mr Perkins for the defendant made the point that the first reference  to  s 56C  might  in  any  event  be  appropriate,  given  that  s 56C(3) acknowledges that the section does not limit or affect any power of the Court to punish any person for contempt of Court in any case to which that section does not apply.    Mr Perkins  then  suggested  that  the  single  reference  to  s 56C(2)  which provides the extent of punishments that may be imposed for the forms of contempt defined in s 56C(1) could not constitute a material deficiency in the document.  The conduct for which Mr Siemer was sentenced is reflected in the judgment of the Court,  and  its  proper  characterisation  could  not  be  altered  by  the  terms  of  a

document such as this warrant.

2      Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers, updated to 8 August

2012) at [J56C.02].

[11]     For the purposes  of my analysis,  I treat  the  references  to  s 56C,  and to s 56C(2) as an error in that it appears at least arguable that the form of contempt made out against Mr Siemer was not one of the forms defined in s 56C(1), and rather was a different form of contempt, the Court’s jurisdiction in respect of which was reserved by s 56C(3).

[12]     Mr Ellis’s objection to the use in the warrant of the words “sentence”, and “sentenced” was that it connoted the imposition of a sentence for the purposes of the Sentencing Act 2002.  When used as a noun for the purposes of the Sentencing Act, the definition in s 4 of that Act excludes from “sentence of imprisonment” any term of imprisonment imposed, whether by committal, sentence or order for, inter alia, contempt of court.  Mr Ellis contended that adverse consequences would arise from the wrongful classification of the circumstances of Mr Siemer’s imprisonment by the alleged misuse of “sentence” and “sentenced” in the terms of the warrant.

[13]     Mr Perkins rejected these concerns as lacking proper foundation.  When used as a verb, the act of sentencing has relevance generally, and is used in other statutes such as the Parole Act 2002 and the Corrections Act 2004.   Even within the Sentencing Act, various forms of the verb may be interpreted as extending to the act of imposing a term of imprisonment (or other sentence) which does not necessarily constitute  “a  sentence”  for  the  purposes  of  the  definition  of  the  noun  in  s 4. Mr Perkins  submitted  that  what  MacKenzie  and  Simon France JJ  did  was  to “sentence” Mr Siemer, and no criticism could be made of their choice of words in describing the punishment imposed as “a sentence”, and as ”the sentence which we

impose”3 because, in the generic sense, that is what they were doing.

[14]     I am not persuaded that the references to “sentence” and “sentenced” within the terms of the warrant constitute an error that would render the document unlawful. There is no argument that the term of imprisonment Mr Siemer was ordered to serve is not “a sentence” in the technical sense of that word for the purposes of the definition in s 4 of the Sentencing Act.  The references Mr Ellis objected to might more felicitously have been expressed as “term of imprisonment” and the reference

to  his  having  been  “sentenced”  could  have  been  expressed  to  the  effect  that

3      Solicitor-General v Siemer HC Wellington CIV-2010-404-8559, 2 September 2011 at [10].

to “sentence” in the heading of the document could have been substituted with the

word “term”.

[15]     However, given the clearly identifiable circumstances in which the order for the term of imprisonment was made, and the extremely thorough appellate review of the circumstances in which it came to be made, there is no realistic prospect that Mr Siemer  will  hereafter  suffer  prejudice  on  account  of  the  words  used  in  the warrant being incorrectly interpreted as if he had been ordered to serve a sentence as that expression is defined for the purposes of the Sentencing Act.

[16]     I therefore take the view that the errors raised by Mr Ellis’s argument are

technical, rather than striking at the heart of the lawfulness of the document.

[17]     Nonetheless,  for  the  purposes  of  reviewing  the  balance  of  Mr Ellis’s arguments, I will assume that, individually or cumulatively, the errors he identified were sufficient to raise a question over the lawfulness of the warrant as the justification for Mr Siemer’s lawful detention.

[18]     Mr Perkins submitted that even if there were material deficiencies in the warrant,  then  the  defendant  could  nonetheless  justify  Mr Siemer’s  detention  as lawful, without relying on the warrant at all.  The requirement for a warrant is in s 91 of the Sentencing Act.  It begins:

91       Warrant of commitment for sentence of imprisonment

(1)       If a court imposes a sentence of imprisonment, a warrant must be issued stating briefly the particulars of the offence and directing the detention of the offender in accordance with the sentence.

[19]    That requirement does not apply to a term of imprisonment imposed for contempt, because the definition of a sentence of imprisonment for the purposes of that Act in s 4 excludes them.   It is therefore open to the defendant, acting by the superintendent of any prison, to be satisfied of the lawful requirement to detain a prisoner on a basis other than being presented with a warrant.

[20]     What is required by s 37 of the Corrections Act is some form of committal order. The operative provision is in s 37(1) in the following terms:

Except where otherwise allowed by law, no person may be received in a prison without a valid committal order.

[21]     Section 37(4) contains an inclusive definition of that expression, including “… any warrant, writ, order, direction, or authority requiring the detention of any person”.

[22]     Mr Perkins submitted that where a term of imprisonment is to be served for contempt, taking it outside the requirement of s 91 of the Sentencing Act, then the alternative forms of committal order will include the order of the sentencing court, such as the sentencing notes of 2 September 2011 in this case.

[23]     Mr Ellis did not appear to contest that analysis.  He conceded that an order of the outcome of the Supreme Court appeal, as sealed by the Registrar of that Court, which included a direction for Mr Siemer to surrender himself at the Registry of the High  Court  at  Auckland  at  9 am  on  Monday, 15 July  2013,  could  amount  to sufficient authority for his lawful detention.  However, Mr Ellis did take the point that any such alternative basis for justifying Mr Siemer’s detention could not operate unless the defendant established that the order had been served on the superintendent of the prison at the time Mr Siemer was received there, and was relied on by the superintendent  as  the  authority for lawfully detaining Mr Siemer.    Mr Ellis  was critical of the defendant for not filing any evidence as to what in fact had been relied upon, or what documents (if at all) the superintendent had in his or her possession, and had read, at the time Mr Siemer was received into detention.

[24]     Mr Perkins’ rejoinder to this point was that the lawfulness of the detention did not depend on the subjective understanding of the superintendent or his or her delegate.   Rather, the issue was whether a document having status as a committal order was in existence at the time Mr Siemer was received into prison.

[25]     I  am  satisfied  that,  at  least  in  the  circumstances  of  Mr Siemer’s  case,

Mr Perkins’ rejoinder is correct.   Having exhausted all appeal rights, Mr Siemer

surrendered   himself   to   the   prison,   persisting   with   his   intention   that   the superintendent detain him, even in circumstances where his immediate reception could not be catered for.  Neither Mr Siemer nor any receiving officer could have been under any material misapprehension as to the basis on which he was to be lawfully detained.  His challenges to the order made by a Full Bench of this Court were dismissed, so that the law required him to serve a notional sentence of six weeks’ imprisonment for a finding made against him of contempt of court.  By the time he was detained, Mr Siemer was in breach of a Supreme Court order that he present himself to the Registry at the Auckland High Court.  In such circumstances, no substantive right of his would be infringed if the superintendent of the prison received him without having read and relied upon the terms of this Court’s order imposing the sentence, or the Supreme Court’s subsequent order of dismissal of his ultimate appeal.  I am satisfied that those lawful bases for his detention were in existence and constituted sufficient compliance with s 37 of the Corrections Act.

[26]     Mr Ellis invited an analogy with the decision in Mailley v General Manager, Auckland Central Remand Prison in which a writ of habeas corpus was issued because of concerns at the lawfulness of a warrant relied on in an extradition proceeding.4     Mr Ellis urged that I adopt the same approach as reflected in that judgment:5

The difficulty in this case is that there is absolutely no evidence of the orders that  were  made  in  Court  by  these  various  District  Court  Judges  and  it appears that at least one was made in Chambers back-dating the order, although I accept the proper submission that we are concerned with the

10 December one.   There is no way of knowing what order Judge Wilson made in Court.  We can only act on the face of the warrant.  The face of the warrant, in my view, is seriously flawed.  This man has been held in custody since 2 July pursuant to such a flawed order and that in itself, in my view, creates a significant miscarriage of justice.

[27]     I am  satisfied  that  Mr Siemer’s  circumstances  are  distinguishable.    Most importantly, there is in this case absolutely clear evidence of the orders in reliance on which the detention is occurring. The “flaws” in the warrant do not compromise the

lawfulness of Mr Siemer’s detention and nor am I satisfied that they coincidentally

4      Mailley v General Manager, Auckland Central Remand Prison HC Auckland CIV-2008-404-

008316, 17 December 2008.

5 At [10].

give rise to the prospect of material prejudice to him.  The circumstances in which he has come to serve a term of imprisonment, and the limit on on-going adverse consequences from his having done so, are readily able to be established from the terms of the judgment and order of this Court, as considered further by the appellate judgments.

[28]     I am accordingly satisfied that the detention of Mr Siemer, which I note is to end on Wednesday, 7 August 2013, has been lawful and he is not entitled to a writ of habeas corpus.

[29]     I will receive memoranda on costs, should the defendant seek to pursue them.

Dobson J

Solicitors:

Carole Curtis, Auckland for applicant

Crown Law, Wellington for defendant