Siemer v Police - [2019] NZHC 1346

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000424

[2019] NZHC 1346

IN THE MATTER OF an appeal against conviction and sentence

BETWEEN

VINCENT ROSS SIEMER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: [On the Papers]

Appearances:

V R Siemer (Self-represented Appellant) in Person Y Y Wang for the Respondent

Judgment:

14 June 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 14 June 2019 at 2.00 pm.

Registrar/Deputy Registrar

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland

Copy To: V R Siemer, Gulf Harbour

SIEMER v POLICE [2019] NZHC 1346 [14 June 2019]

[1] Mr Siemer appeals his conviction for breaching a suppression order under ss 240(1)(c) and 263 of the Lawyers and Conveyancers Act 2006 (the Act). The conviction was entered following a judge-alone trial in the North Shore District Court.1 Mr Siemer was convicted and fined $500 plus court costs of $130.

The offending

[2] Section 240(1)(c) of the Act provides a power to the Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) to make suppression orders in certain circumstances. That section provides:

240 Restrictions on publication

(1) If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make any 1 or more of the following orders:

…

(c) an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person.

[3] On 24 November 2016, the Tribunal issued a penalty decision against a practitioner who has since died.2 The decision referred to the earlier grant of interim name suppression. One of the issues to be determined in the penalty decision was whether permanent name suppression should be granted. The Tribunal canvassed the relevant considerations and submissions on this issue and concluded:

[28] Given that there is no risk to the public posed by this practitioner in the future, we consider that the combination of factors referred to above do, in this unusual set of circumstances, justify the permanent name suppression of the practitioner, his former client and any identifying details.

[4] On 28 May 2017, Mr Siemer posted to his blog site a publication entitled “NZ Police Used to Prosecute Watchdog the Old World Way”. The blog post is set out in full in the District Court judgment and it is unnecessary for me to repeat it here, save to say that the post referred to the practitioner by name on multiple occasions and

1 New Zealand Police v Siemer [2018] NZDC 24353.
2 Waikato Bay of Plenty Standards Committee No 2 v M [2016] NZLCDT 34.

included a photograph of him. It also referred to the permanent name suppression decision.

[5]Mr Siemer was charged under s 263 of the Act. That section provides:

263 Publication

(1)Every person commits an offence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Siemer v Police

Details

AGLC: Siemer v Police [2019] NZHC 1346
Case: [2019] NZHC 1346
Decision Date: 14 June 2019

CaseChat Overview and Summary

Vincent Ross Siemer appeals against his conviction by the North Shore District Court for breaching a suppression order under ss 240(1)(c) and 263 of the Lawyers and Conveyancers Act 2006. Siemer was convicted and fined $500 plus court costs of $130. The appeal raises four grounds: first, that there was no evidence of a valid suppression order; second, that the Judge failed to take into account s 14 of the New Zealand Bill of Rights Act 1990; third, that the Judge erred in finding that Siemer was aware of the suppression order at the time he made his post; and fourth, that there was no sentencing hearing, and the trial Judge did not pronounce sentence by judgment.

The court found that the Tribunal’s decision was sufficient to evidence the making of an order under s 240 in this case. The court also held that Siemer’s arguments under s 14 of the NZBORA were a collateral attack on the Tribunal’s decision, and Siemer was precluded from raising it by way of defence to the charge. The court further found that Siemer did have actual knowledge of the existence of the suppression order at the time he made his post. The court held that Siemer’s complaint that a penalty was imposed in breach of natural justice, or without jurisdiction, was an appeal against sentence, not an appeal against conviction.

The appeal against conviction is dismissed.

Orders