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 who, without lawful excuse, acts in contravention of any order made by the Disciplinary Tribunal under any of paragraphs (a) to (c) of section 240(1).

(2)Every person who commits an offence against this section is liable on conviction to a fine not exceeding $25,000.

[6]    Mr Siemer did not dispute that he was the author of the relevant blog post or that it was published on 28 May 2017. Mr Siemer’s primary arguments at trial were that there was not an actual order made by the Tribunal, and any order that purported to bind him was invalid.

District Court decision

[7]    The trial before Judge Blackie commenced on 7 March 2018. The prosecution called one witness, Detective Hall, who gave evidence regarding the publication and his discussion with Mr Siemer. During those discussions, Mr Siemer had agreed that it was his blog site and that what was contained in that blog was his statement. The Detective produced a sealed copy of the Tribunal’s decision in evidence.

[8]    Following the completion of this evidence, Mr Siemer applied for a dismissal of the charge under s 147 of the Criminal Procedure Act 2011 claiming there was no case to answer. Judge Blackie issued a judgment on 26 April 2018 declining the application (the s 147 decision).3

[9]    Judge Blackie observed that for the offence under s 263 of the Act to be made out, two elements had to be proved:4

3      New Zealand Police v Siemer [2018] NZDC 7829.

4      At [11] and [27].

(a)There was breach of a lawful non-publication order which was binding on Mr Siemer; and

(b)The publication by Mr Siemer was with knowledge, that is, that it was deliberate conduct without lawful excuse.

[10]   The Judge found that a valid non-publication order was made by the Tribunal. The Judge found that the certified copy of the decision was an admissible public document under s 138 of the Evidence Act 2006. Further, the Judge found that any person reading the decision would have been aware that there was a suppression order prohibiting the publication of the name and identifying particulars relating to the practitioner.

[11]   The question of Mr Siemer’s knowledge of the suppression order was then addressed by the Judge. The Judge found that the text of Mr Siemer’s blog post made it clear that Mr Siemer knew there was a suppression order in place in relation to the named practitioner at the time he made his post. The Judge concluded that:

(a)There was a lawful order, unambiguous  in  its  terms,  binding  on  Mr Siemer;

(b)Mr Siemer had knowledge of the terms of the order; and

(c)Mr Siemer published the name of the name suppressed on his blog site.

[12]   The s 147 application was accordingly dismissed. Mr Siemer subsequently appealed the s 147 decision to the High Court. Lang J dismissed the appeal for lack of jurisdiction given that a final determination by the District Court on the issue of conviction had yet to be made.5  The trial was reconvened on 21 November 2018.  Mr Siemer elected not to give, or call, any evidence but further written submissions were presented in closing.

5      Siemer v New Zealand Police [2018] NZHC 1212.

[13]   The  Judge  gave  reasons   for   verdict   in   a   reserved   decision   dated   26 November 2019. The Judge referred to his findings in the s 147 decision confirming that Mr Siemer not only had access to the Tribunal’s decision, but also named the person the subject of the suppression order in his blog post. The Judge considered it was clear that Mr Siemer had the requisite knowledge given that he had made reference to the suppression order, the Tribunal’s reasons for making the suppression order, and had quoted passages from the Tribunal’s decision in the blog post. As previously mentioned, the blog post included the name and photograph of the practitioner.

[14]   The Judge rejected the submission made by Mr Siemer that the Tribunal did not  have  the  right  to  make  suppression  orders   in   light   of   s 14   of   the   New Zealand Bill of Rights Act 1990 (the NZBORA). He also rejected Mr Siemer’s submission that the Tribunal’s order only bound the parties and was not effective against the world at large. Finally, the Judge rejected Mr Siemer’s submission that the order was invalid because it did not mention the name of the practitioner.

[15]   In rejecting those submissions, the Judge had reference to the decision in Haden v New Zealand Police.6 That case involved an identical charge arising out of Ms Haden’s breach of the same suppression order. Ms Haden’s appeal against conviction was rejected by Clark J in that case. Ms Haden had made very similar arguments to Mr Siemer in this case, and the Judge relied on Clark J’s reasoning in rejecting Mr Siemer’s submissions.

[16]   The Judge summarised his final findings in relation to the ingredients of the charge as follows:7

(a)The terms of the order were clear and unambiguous. They were binding on the defendant as they were on any member of the public in New Zealand.

(b)The defendant had knowledge of the order. Obviously, he had read the 24 November 206 [sic] Tribunal decision, as he quotes verbatim passages or extracts taken from the decision, including extracts relating to non-publication.

6      Haden v New Zealand Police [2018] NZHC 498.

7      New Zealand Police v Siemer [2018] NZDC 24353 at [21].

(c)The defendant acted in breach of the terms of the order by publishing the name of the practitioner that the Tribunal suppressed.

(d)The defendant’s conduct was deliberate in that he wilfully acted in a manner that breached the order. The whole purpose of the blog site publication was to expose [the practitioner] as “a long, lingering case of a cobbled repeat fraudster where blanket Court suppression orders protected his “privacy”. He went on to state:

“Proving corruption is perpetuated if not enboldened [sic] by Court suppression orders which prevent public awareness”.

(e)In reality, it is quite clear that the principle behind the defendant’s publication was to reveal and expose the activities of [the practitioner] to his readers, despite his knowledge of and in the face of the Tribunal’s order for name suppression.

Approach on appeal

[17]   The appeal is a first appeal against conviction and, as it was a judge-alone trial, it is governed by s 232(2)(b) of the Criminal Procedure Act 2011. To succeed on his appeal against conviction, Mr Siemer must show that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.8

[18]   Miscarriage of justice means any error, irregularity or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected.9 A real risk arises if there is a reasonable possibility that a not guilty verdict might have been delivered had nothing gone wrong.10

[19]   The Supreme Court has recently confirmed that appeals under s 232(2)(b) proceed by way of rehearing, and the approach adopted in Austin, Nichols & Co Inc v Stichting Lodestar in respect of civil appeals conducted by way of rehearing applies.11 Accordingly, the appellate court must form its own view of the evidence. That does not mean, however, that the issues are considered anew as if there had been no hearing at first instance. It is for the appellate to show there has been an error. In assessing

8      Criminal Procedure Act 2011, s 232(2)(b).

9      Section 232(4)(a).

10     Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [67].

11     Sena v New Zealand Police [2019] NZSC 55 at [32]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

whether there has been an error, the appellate court is to take into account any advantages a trial judge may have had.12

Grounds of appeal

[20]   Mr Siemer’s grounds of appeal in relation to the conviction may be marshalled under the following headings:

(a)First, that there was no evidence of a valid suppression order;

(b)Second, that the Judge failed to take into account the provisions of s 14 of the New Zealand Bill of Rights Act 1990;

(c)Third, that the Judge erred in finding that Mr Siemer was aware of the suppression order at the time he made his post; and

(d)Fourth, that there was no sentencing hearing, and the trial Judge did not pronounce sentence by judgment.

[21]Each of these challenges are considered below.

Did the Judge err in finding that there was a valid suppression order?

[22]   Mr Siemer contends that the Judge was wrong to conclude that a valid suppression order had been made. He says that the certified sealed copy of the Tribunal’s decision dated 24 November 2016, produced through the prosecution witness, was not evidence of a valid order. Further, he submits that there was no “order” made in the decision, and that it is otherwise invalid for not naming the practitioner concerned.

[23]   The Judge addressed those submissions in his decision declining the s 147 application. He found the Tribunal’s decision was admissible as public document evidence under s 138 of the Evidence Act 2006. That section provides for a presumption that a public document is authentic and provides that it may be offered in

12     Sena v New Zealand Police [2019] NZSC 55 at [38].

evidence to prove the truth of its contents. To the extent that Mr Siemer contends otherwise, I am satisfied that the Tribunal’s decision was properly admitted under this section.

[24]   Mr Siemer says that the Tribunal’s decision does not evidence an “order”. He says that [28] of the Tribunal’s decision is consistent with a direction to the parties only. In addition, Mr Siemer points to the lack of any notice on the cover page alerting readers to the fact that it was subject to a suppression order, and the failure to mention the practitioner by name, in support of his invalidity claims.

[25]   Ms Haden raised the same general points in her appeal against conviction for breach of the same suppression order. Clark J found that there was no legal requirement for Tribunal orders to be worded or presented with “particular characteristics” before they can be regarded as effective.13 She said that the Tribunal had prohibited the publication of the practitioner’s name and identifying details pursuant to the power conferred by s 240 of the Act, and the Tribunal’s interim and permanent suppression decisions were effective exercises of its statutory power to restrict publication. Judge Blackie adopted and followed that same reasoning in this case.14

[26]   It would have been preferable for the Tribunal to expressly record that it was making a non-publication order in its decision, either in the section on suppression or at the end of its decision. That would remove any room for argument as to whether an order was in fact made, and the scope of the terms of that order. It may also have been preferable to include a banner on the front of the decision alerting all those who read it that a non-publication order had been made.

[27]   However, I am satisfied that the Tribunal’s decision is sufficient to evidence the making of an order under s 240 in this case. It is implicit in [28] of the decision that this is what the Tribunal is doing, and there is no room for doubt that permanent name suppression of the practitioner, his former client, and any identifying details was made. As discussed further in relation to knowledge, it is clear that Mr Siemer

13     Haden v New Zealand Police [2018] NZHC 498 at [23]–[25].

14     New Zealand Police v Siemer [2018] NZDC 24353 at [17] and [21].

regarded the decision as evidencing a non-publication order at the time he made his post and was in no doubt that an order had been made. The Judge did not err in relying on the Tribunal’s decision as evidencing an order.

[28]   There is also no requirement that the Tribunal identify the practitioner by name in its suppression order. As counsel for the respondent submits, any such requirement would undermine the very purpose of a suppression order. The failure to identify the practitioner concerned does not detract from the validity of the order made in any way. I agree with counsel for the respondent’s submission that, in practice, the non- publication order has limited effect, as it only prohibits publication of a practitioner’s name if that name, and the fact that the practitioner is the subject of the Tribunal decision, is already known. In this case, and as discussed further, Mr Siemer published the name of the practitioner with full knowledge of the Tribunal’s order.

[29]   Finally, Mr Siemer’s submissions appear to revive the argument made in the District Court that the order was not an effective order “against the world”, but only bound the parties to the decision. That argument cannot be sustained in the face of the plain meaning of ss 240 and 263. Section 240 confers a clear power on the Tribunal to make an order to the public at large preventing publication of a practitioner’s name, and s 263 specifies the reach of the offence to “every person”. Clearly the order was effective against Mr Siemer in this case.

[30]   It follows that I am satisfied that there was no error in the Judge’s conclusion that there was evidence of a valid order of suppression that prohibited Mr Siemer from publishing the practitioner’s name and identifying details. This ground of appeal must be dismissed.

Did the Judge err in failing to take into account s 14 of the NZBORA?

[31]   Section 14 of the NZBORA secures the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.   Mr Siemer says that the Judge failed to address the relevance of   s 14, despite it being raised in his defence. He says further that there was no evidence that the Tribunal weighed up the public right under s 14 of the NZBORA against the need for suppression.

[32]   It is not correct to say that the s 14 arguments were not addressed by the Judge. Mr Siemer’s submissions on this point were referred to at [15] of the Decision. The Judge then referred to similar arguments made by Ms Haden, including the argument that the freedoms guaranteed by s 14 would be undermined “if there was a requirement to comply with secret orders made in favour of any one person”.15 Ms Haden’s argument was rejected by Clark J who said that whether or not any report or account of proceedings before the Tribunal could be restricted was an assessment for the Tribunal to make after considering the various competing interests.16 The Judge referred to that finding17 and relied on it in dismissing Mr Siemer’s submissions as without merit.18

[33]   Mr Siemer’s arguments under this head were considered by the Supreme Court in Siemer v Solicitor-General.19 That case concerned an appeal from a finding of contempt against Mr Siemer for  breaching  a  suppression  order  made  by  the  High Court. The Supreme Court considered the impact of s 14 of the NZBORA on the inherent power to make non-party suppression orders. However, it declined to consider the correctness of that order in light of s 14 of the NZBORA, finding that the rule against collateral challenge precluded such an analysis.  That rule meant that   Mr Siemer could not raise as a defence in contempt proceedings the fact that the order should not have been made or made in such terms. The correct approach was for a non-party to apply to vary or rescind a suppression order that affects rights and freedoms, but until that happened, an order had to be complied with.20

[34]   Elias CJ dissented on this point. In her Honour’s view, someone who was a non-party to the proceeding in which the orders were made could question their legality in contempt proceedings, including on grounds that they constitute an unreasonable restriction on the right to  freedom  of  expression.21  Nevertheless, Elias CJ said that:22

15     New Zealand Police v Siemer [2018] NZDC 24353 at [16(f)].

16     Haden v New Zealand Police [2018] NZHC 498 at [35].

17     New Zealand Police v Siemer [2018] NZDC 24353 at [20].

18 At [21].

19     Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.

20     At [191] and [232].

21 At [6].

22     At [8] (citations omitted).

… it will almost inevitably be abuse of process justifying refusal to entertain a defensive challenge for a party to litigation to seek to defend proceedings for committal for contempt for breach of adjudicated orders by attempting to re-litigate the decision to make the order.

[35]   Although the issue in this case arises in a different context (criminal liability under s 263 for breach of an order made by the Tribunal under s 240 of the Act, as opposed to contempt for an order made by the High Court under its inherent jurisdiction), the same principles apply.

[36]   Mr Siemer is entitled to challenge his conviction on the basis that there is insufficient evidence of an order. That defence puts the Crown to proof on an element of the charge under s 263. However, the challenge Mr Siemer makes under s 14 of the NZBORA is different in kind. It is not a challenge regarding the adequacy of evidence, but a challenge to the correctness of the Tribunal’s decision in law. That challenge is a collateral attack on the Tribunal’s decision, and I consider Mr Siemer is precluded from raising it by way of defence to the charge.

[37]   But even if I am wrong about that, I do not consider the challenge could succeed in this case. As the Supreme Court has said, the right to freedom of expression is not an unlimited right. Section 5 allows for justified limits on those rights and freedoms. A suppression order can be made consistently with the NZBORA, and whether it has will depend on the circumstances of the particular case.23 In the context of orders made under s 240 of the Act, the Tribunal will be required to strike a balance between open justice considerations and the interests of the party who seeks suppression.24

[38]   It is evident from the Tribunal’s decision that it did weigh up the more general need to strike a balance between open justice considerations, and the interests of the party who seeks suppression. The Tribunal specifically referred to the public interest in openness of the disciplinary process which demanded that the practitioner’s name be published.25 Nevertheless, the Tribunal considered that the balance to be struck in that case was in favour of suppression given the particular circumstances of that case.

23 At [158].

24     Hart v Standards Committee (No 1) of the New Zealand Law Society [2012] NZSC 4 at [3].

25     Waikato Bay of Plenty Standards Committee No 2 v M [2016] NZLCDT 34 at [23].

Those circumstances included likely serious health concerns, and the pursuit by a “litigious and irrational person” who the Tribunal considered was likely to engage in a campaign against the practitioner if the proceeding came to their attention.26

[39]   The challenge to the validity of the Tribunal’s order based on NZBORA grounds must accordingly fail. This ground of appeal is dismissed.

Did the Judge err in finding that Mr Siemer had knowledge of the suppression order?

[40]   Judge Blackie concluded that s 263 had a mens rea element in that it required the prosecution to prove that publication by the defendant was with the knowledge of the order. That is, the defendant had deliberately published despite the order prohibiting the defendant from doing so.

[41]   The respondent submits that this interpretation of s 263 was generous  to    Mr Siemer. It contends that the offence under s 263 of the Act is one of strict liability, and there is no requirement for the breach to be intentional, wilful or deliberate. Analogies with s 211(1) of the Criminal Procedure Act 2011 are drawn in support of that submission.

[42]   It is not necessary for me to determine that point to resolve this appeal (and nor should I, given that the appeal is determined on the papers without the benefit of full legal argument). The reason it is unnecessary to determine the point is because it is plain that Mr Siemer did have actual knowledge of the existence of the suppression order at the time he made his post.

[43]   That is evident from the passages in his post where he refers specifically to the 24 November 2016 decision, quotes directly from it, and states “these were also given as Tribunal reasons to again conceal his identity from the unsuspecting public …”. There is also reference to Ms Haden being charged for breaching a suppression order under the Act and being provided with a “heavily redacted Tribunal decision, where only a reference to name suppression being justified was left unredacted”.

26 At [26].

[44]   Those passages, combined with the naming of the practitioner concerned and the inclusion of a photograph of the practitioner in the blog post, provide a sufficient foundation from which knowledge may be inferred beyond reasonable doubt. This ground of appeal must similarly be dismissed.

Was there a sentencing hearing?

[45]Mr Siemer’s third ground of appeal against conviction was as follows:

The Conviction did not contain penalty and the parties were not heard on penalty, yet the Crown has unjustly levied a penalty of $680, breaching natural justice.

[46]   I issued a minute asking Mr Siemer to clarify whether this ground was pursued, and if so,  whether it  was  pursued  as  an  appeal  against  sentence.  In  response, Mr Siemer filed a memorandum submitting the following:

2.It is the Appellant’s submission – which is submitted to be common ground – that no sentencing hearing occurred, the parties were not heard on sentencing and the trial judge did not pronounce sentence by judgment.

3.Consequently, the Appellant cannot legally appeal a sentence which has not judicially transpired.

4.Your Honour’s recognition that the Appellant has duly raised the

registry’s imposing of a discretionary sentence without notice or hearing is relevant to appeal of conviction is certainly prudent in the broader scheme. The Appellant at this point is simply stating the registry had no jurisdiction to impose sentencing as it has done and judicial review (being the only legal remedy) to this ultra vires action will be unnecessary if the appeal against conviction succeeds.

[47]   Mr Siemer’s submissions appear to proceed on erroneous factual grounds. A copy of the relevant District Court record entries is attached. Those entries record that Mr Siemer was released at large on 21 November 2018 (the last day of the hearing) to appear at 9.15 am on 27 November 2018 for delivery of the reserved decision. On  27 November 2018, the judgment finding the charge proved was delivered, and sentence was passed at that time. The Judge has noted that there was no appearance by Mr Siemer on that day. It appears from the record, therefore, that sentence was in fact passed by the Judge, and not  administratively imposed  by the  Registrar,  as  Mr Siemer suggests.

[48]   In any respect, Mr Siemer’s claim also faces difficulties in law. Although put forward as a ground of appeal against conviction, Mr Siemer’s complaint is, in effect, an appeal against sentence. His claim is that a penalty was imposed in breach of natural justice, or without jurisdiction. His allegations, even if correct, do not touch or concern his conviction, and there is currently no appeal against sentence before the Court.

Result

[49]The appeal against conviction is dismissed.

Edwards J

RReeccoorrdd ooff HUeeñarrliinigg

District Court at:       North Shore  Page:

Defendant Name:      Vlncent Ross SïEMER

CRI-2017-044-003389    CRN: 17044004268

Heai

7NOV20

CR0201_RscordOfAppearances