Siemer v Solicitor-General
[2012] NZCA 188
•11 May 2012
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA607/2011 [2012] NZCA 188 |
| BETWEEN VINCENT ROSS SIEMER |
| AND THE SOLICITOR-GENERAL |
| Hearing: 1 February 2012 |
| Court: O'Regan P, Harrison and Wild JJ |
| Counsel: T Ellis and G K Edgeler for Appellant |
| Judgment: 11 May 2012 at 10 am |
JUDGMENT OF THE COURT
A The appeal is dismissed.
B The appellant is to present himself at Auckland Remand Prison at 9 am on 25 May 2012 to commence serving his term of six weeks imprisonment.
C There will be no order as to costs.
REASONS OF THE COURT
(Given by Harrison J)
Table of Contents
Para No
Introduction [1]
Background [3]
High Court [11]
Inherent jurisdiction [14]
New Zealand authorities [14]
(a) Taylor v Attorney-General [17]
(b) Broadcasting Corporation v Attorney-General [24]
(c) Muir v Commissioner of Inland Revenue [29]
(d) Supreme Court authorities [30]
English authorities [36]
(a) Attorney-General v Leveller [38]
(b) Independent Publishing v Attorney-General of Trinidad and
Tobago [41]
Other Commonwealth authorities [56]
Decision [59]
(a) New Zealand and English approaches compared [59]
(b) New Zealand context [66]
(c) Conclusion [74]
Statutory provisions [79]
The Criminal Justice Act 1985 [79]
The Criminal Procedure Act 2011 [85]
Other grounds of appeal [92]
Nullity [92]
Bringing the administration of justice into disrepute or abuse [97]
Unreasonable limitation on freedom of expression [99]
Decision wrong in law [100]
Failure to prove harm [101]
Apparent bias [102]
Excessive sentence [104]
Result [106]
Introduction
Vincent Siemer appeals against a finding of contempt made in the High Court[1] for breaching a suppression order made earlier in that Court.[2] He appeals also against his sentence of six weeks imprisonment,[3] which has been stayed pending our decision.
[1]The Solicitor-General of New Zealand v Siemer HC Wellington CIV-2010-404-8559, 4 July 2011, per MacKenzie and Simon France JJ.
[2]R v B HC Auckland CRI-2007-085-7842, 9 December 2010.
[3]The Solicitor-General of New Zealand v Siemer HC Wellington CIV-2010-404-8559, 2 September 2011.
Mr Siemer’s appeal raises many grounds. One of them is tenable and significant: it is whether this Court’s decision in Taylor v Attorney-General,[4] recognising the High Court’s inherent jurisdiction to make suppression of publication orders, correctly represents the law of New Zealand.
Background
[4]Taylor v Attorney-General [1975] 2 NZLR 675 (CA).
On 9 December 2010 Winkelmann J, the Chief High Court Judge, delivered a judgment in R v B (the 9 December 2010 judgment).[5] The Judge’s decision was one of a number of pre-trial rulings under s 344A of the Crimes Act 1961 in the highly publicised prosecution of 18 people for breaches of the Arms Act 1981 (the Hamed proceedings). Mr Siemer was not one of them. Winkelmann J ordered severance of the trial of three of the accused and trial before a Judge sitting alone without a jury of the charges against the remaining 15.[6]
[5]R v B, above n 2.
[6]Crimes Act 1961, s 361D.
These words appeared as a banner at the top of the 9 December 2010 judgment:
THE JUDGMENT IS NOT TO BE PUBLISHED (INCLUDING ANY COMMENTARY, SUMMARY OR DESCRIPTION OF IT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE OR OTHERWISE DISSEMINATED TO THE PUBLIC UNTIL FINAL DISPOSITION OF TRIAL OR FURTHER ORDER OF THE COURT. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.
The Solicitor-General contends that the statement in the banner constituted an order of the High Court prohibiting publication of the judgment on the stated terms. We are satisfied that, while the banner (the suppression order) is not expressly described as an order, it plainly was intended to have that effect. The suppression order was not separately included within the body of the 9 December 2010 judgment or the subject of express judicial consideration.
Mr Siemer owns and operates two identical websites. Immediately following delivery of the 9 December 2010 judgment he published an article on both websites including these words:
JUDGE OR BE JUDGED
10 December 2010
Chief High Court Judge Helen Winkelmann (pictured) ordered yesterday that the “Urewera terrorist” prosecution ... against 15 accused will be by judge alone trial. The landmark ruling was sought on application by the Crown and had been opposed by the accused.
The remaining three of the eighteen listed defendants were ordered separate trials.
Winkelmann J ordered the public not be told about her order. In the past Winkelmann has stated the reason for such secrecy was to ensure the jury pool is not prejudiced by pre-trial information. Her latest order prohibiting a jury states ... [here and in a following omitted paragraph, Mr Siemer summarises the Judge’s reasons].
The ... accused were originally charged under the Terrorist Suppression Act. After widespread public protests, Solicitor General David Collins dropped the terrorism charges in October 2007. Most are now charged with arms violations: some with organised crime activity.
Justice Winkelmann was the Judge who earlier concurred with Police that their Court affidavit used to obtain the nationwide search warrants in the massive arrests be suppressed, then revoked bail on Crown application after Auckland District Court Judge Josephine Bouchier granted bail for some of the accused in 2007. In 2009, Justice Winkelmann struck out several of those search warrants as unlawful. Last month, the Court of Appeal reinstated them after the Crown appealed.
Winkelmann’s ruling yesterday means the eighteen originally charged wrongly by the Crown as terrorists will now have their guilt or innocence determined by a Crown judge, as the Crown is being forced to justify its actions in the raids to the United Nations.
The arrests were the culmination of a 13 months and multi-million dollar covert police investigation in 2007 which made news headlines around the world.
As the High Court pointed out in the judgment under appeal (the 4 July 2011 judgment),[7] the word “ruling” where it appears in the first paragraph of Mr Siemer’s article is a hyperlink; by clicking on that word, the reader would have immediate access to a copy of the 9 December 2010 judgment.
[7]At [5].
The Crown later applied to vary the suppression order because it was wider than was necessary. After hearing from counsel and the accused Winkelmann J issued a telephone conference minute recording that all defence counsel opposed the Crown’s application on the ground that the suppression order should remain in its existing terms. The Judge accepted the prudence of this course pending determination of any appeals against the 9 December 2010 judgment. However, she varied the original order by adding the words:
... provided that reporting is allowed of the outcome of the judgment as set out in paragraphs [78] and [79] of the [9 December 2010] Judgment.
Those two paragraphs in the 9 December 2010 judgment stated:
[78] I make the following orders:
(a)that the trial of the respondents Teepa, Wharepouri and Hunt be severed from that of the other respondents. It should be called over on a date fixed by the Registry;
(b)that the trial of the remaining respondents proceed before a Judge alone pursuant to s 361D.
[79] I also decline the respondents’ applications for severance.
The next day Mr Siemer published a second article on his websites as follows:
CROWN TO PERSECUTE WHERE LAW PREVENTS PROSECUTION
18 December 2010
Urewera raid defendants are lining up to appeal Auckland High Court Justice Helen Winkelmann’s Judgment that [reasons discussed] and, therefore, a judge –alone trial is necessary when trying the fifteen defendants. It is understood most of the defendants have already signed up to an appeal to be filed with the Court of Appeal in late January.
Meanwhile, Crown Law has sent notice that it intends to prosecute kiwifirst publisher Vince Siemer for publishing Winkelmann’s judgment, on the grounds Winkelmann ordered the public not to be told about it. Crown Law is seeking Siemer be imprisoned.
The threat to prosecute comes despite Meredith Connell advising the High Court and Crown Law that they intend to seek rescission of all suppression orders on behalf of the prosecution on the grounds publication of Winkelmann’s judgment “cannot possibly prejudice the fair trial rights of the accused, and (the issues in the judgment) are a matter of genuine public interest.”
High Court
On these facts the Solicitor-General applied to the High Court for a finding that Mr Siemer’s actions in publishing the statements set out in [6] and [10] above constituted a deliberate, persistent and unjustifiable disregard for the High Court order and an assault on its authority. The Solicitor-General claimed that Mr Siemer’s actions thereby constituted a serious act of contempt of Court requiring the imposition of a term of imprisonment of up to three months. Mr Siemer defended the application. In its 4 July 2011 judgment the High Court upheld the Solicitor-General’s application and found that Mr Siemer had acted in contempt of Court.[8]
[8]The Solicitor-General of New Zealand v Siemer, above n 1.
The High Court was satisfied beyond doubt that the suppression order was binding on Mr Siemer; that he published the 9 December 2010 judgment on his websites in breach of the order; and that his breach was deliberate and was maintained despite advice from the Solicitor-General that publication could amount to contempt.[9] The High Court did note, however, that the second article, while technically in breach, was of a minor nature and would not on its own have justified a contempt finding.[10] Following delivery of the 4 July 2011 judgment and before sentence was imposed, Mr Siemer removed the 9 December 2010 judgment from his website.
[9]At [69].
[10]At [68].
Two introductory points must be noted. First, the Solicitor-General’s application for a contempt order was brought and decided upon the ground that the suppression order was directly binding on Mr Siemer: the High Court dismissed a submission that, if the order was not binding, Mr Siemer was in contempt on the alternative ground of interfering with the due administration of justice or frustrating the Court’s purpose.[11] Second, by consent, the Supreme Court later rescinded Winkelmann J’s order made on 9 December 2010 that the by then remaining four accused be tried by a Judge alone.[12]
Inherent jurisdiction
New Zealand authorities
[11]At [11]–[17]; see also Attorney-General v Newspaper Publishing Plc [1988] 1 Ch 333 (CA) at 362.
[12] See Signer v R [2011] NZSC 109.
There is no statutory power for the High Court to order suppression or postponement of publication of its judgments. That much is common ground. The primary question then is whether the Court has an inherent power to make such an order. The answer depends largely upon whether this Court’s decision in Taylor v Attorney-General[13] remains good law.
[13]Taylor v Attorney-General, above n 4.
Central to our inquiry is the effect of two later decisions — Attorney-General v Leveller Magazine Ltd[14] and Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago[15] — and of the enactment of s 138 of the Criminal Justice Act 1985 and other legislation. Mr Edgeler, who argued this primary issue for Mr Siemer, submits that Taylor was wrongly decided. In order to evaluate that submission it will be necessary for us to subject the leading authorities to critical analysis.
[14]Attorney-General v Leveller Magazine Ltd [1979] AC 440 (HL).
[15]Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago [2004] UKPC 26, [2005] 1 AC 190.
We note that in Taylor and some later decisions of this Court, the Court has used the terms “inherent jurisdiction” and “inherent power” loosely and, at times, interchangeably.[16] We see these terms as distinct concepts.[17] Our analysis of the authorities will adopt the language used in the judgments but where we do so and record a reference in an earlier case to “inherent jurisdiction”, we would ourselves use the phrase “inherent power”. Our decision is grounded in the concept of the inherent powers of New Zealand courts, rather than the inherent jurisdiction of the High Court.
(a) Taylor v Attorney-General
[16]See Taylor v Attorney-General, above n 4, at 678–680 per Wild CJ, at 681–682, 688 per Richmond J and at 689–691, 693 per Woodhouse J; Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120 (CA) at 125–127 per Woodhouse P, at 127–130, 132 per Cooke J, and at 134–135 per Richardson J; and Muir v Commissioner of Inland Revenue (2004) 17 PRNZ 365 (CA) at [32].
[17]Attorney-General v Otahuhu District Court [2001] 3 NZLR 740 (CA) at [16]; Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) at [35].
In Taylor Beattie J had made an order at the start of Dr W B Sutch’s criminal trial in the then Supreme Court on charges under the Official Secrets Act 1951:[18]
... prohibiting the publication of anything that may lead to the identification of officers of the New Zealand Security Service. They will be described by a letter or symbol in each case.
[18] Attorney-General v Taylor [1975] 2 NZLR 138 (SC) at 139.
Mr Taylor was not a party to the proceeding. But he was present in Court when the order was made. In a subsequent radio broadcast Mr Taylor deliberately disclosed the real name of a security service officer who had been identified at the trial by the letter “S”. Beattie J upheld the Attorney-General’s application to find Mr Taylor in contempt and imposed a fine. This Court by a majority (Wild CJ and Richmond J, Woodhouse J dissenting) dismissed Mr Taylor’s appeal.
In Taylor this Court was unanimous, however, in finding that the Supreme Court has an inherent jurisdiction to order permanent suppression of the names of witnesses in a trial open to the public. In summary, the Court justified its conclusion on these grounds:
(a)Parliament’s establishment by the Judicature Act 1908 of the then Supreme Court as a High Court with all judicial jurisdiction necessary to administer the laws of New Zealand was the source of its inherent jurisdiction to act effectively within that jurisdiction.
(b)The High Court’s primary jurisdiction is its authority to decide proceedings which are litigated before it or to take cognisance of what is presented formally for its decision. The Court’s inherent jurisdiction is ancillary to exercising that primary power; its juridical basis is the Court’s authority to uphold, protect or fulfil the judicial function of administering justice according to the law in a regular, effective and orderly manner.[19] Thus, even without the specific authority of a particular statutory provision, the Courts have always had an inherent power to prevent abuse of their processes and to punish for contempt.[20]
(c)This inherent power is part of the procedural not substantive law and is exercisable for the purpose of controlling both those associated with the proceeding and the world at large.[21]
(d)In Richmond J’s opinion,[22] the nature of the order and its effect on the principle of open justice are relevant to determining whether the Court should invoke an inherent power. At one end of the scale is an order that proceedings be heard in camera. At the other, much less intrusive, end is a direction that a witness’s name be withheld.
[19] At 681–682 per Richmond J; and at 689 per Woodhouse J.
[20]At 678–679 per Wild CJ, citing R v Forbes, ex parte Bevan (1972) 127 CLR 1 at 7 per Menzies J and Connelly v Director of Public Prosecutions [1964] 1 AC 1254 (HL) at 1301 per Lord Morris of Borth-y-Gest.
[21]At 698 per Woodhouse J.
[22] At 682–683.
The Court treated the R v Socialist Workers Printers and Publishers Ltd decision[23] as authority for the proposition that when exercising its inherent jurisdiction a Court may in the interests of the justice make an order suppressing the names of witnesses in a trial open to the public.[24] In that case the Judge presiding at a criminal trial for blackmail directed that the names of two witnesses be referred to by initials. A newspaper published a report purporting to identify the names of both witnesses and was committed for contempt. In Taylor the Court noted that the Court of Appeal in Socialist Workers did not identify a specific power to make the relevant direction, and inferred that it was made in the inherent jurisdiction because otherwise the processes of justice could not be carried out.
[23]R v Socialist Workers Printers and Publishers Ltd, ex parte Attorney-General [1975] 1 QB 637 (CA).
[24]See at 677–678 per Wild CJ; at 682–683 per Richmond J; and at 691 per Woodhouse J.
In the result, the Court divided in Taylor on the consequential question of whether the suppression order made by Beattie J was necessary in the interests of justice. That inquiry was justified because, as Richmond J explained, it must always be open to the defendant in contempt proceedings to establish that the order was outside the Court’s jurisdiction and a nullity.[25] Wild CJ and Richmond J were satisfied that the order was necessary.
[25] At 687 per Richmond J.
Wild CJ was not satisfied that the Court’s inherent jurisdiction to make the order was excluded by either s 46 of the Criminal Justice Act 1954 or s 375 of the Crimes Act 1961, the predecessors to s 138 of the Criminal Justice Act 1985; neither statute empowered a Judge to suppress publication of a witness’s name. In summary, s 46 as it then stood empowered a Court to suppress publication of the name of an accused person, whether permanently or temporarily; and s 375 authorised a Court to sit in camera — in closed session — providing that the parties, counsel and the accredited media were not to be excluded, and to suppress publication of a report of the evidence.
The Chief Justice held that the Court may exercise its inherent jurisdiction to suppress publication even on issues which are regulated by statute or rule of law providing it does not contravene such a statute or rule.[26] He also emphasised that the suppression order was of limited extent, and did not impinge upon the open nature of the trial.[27] Richmond J was to similar effect.[28] Woodhouse J dissented — on his construction the relevant statutory provisions were designed to be exclusive, thereby ousting the Court’s inherent jurisdiction.[29]
(b) Broadcasting Corporation v Attorney-General
[26]At 680.
[27]At 680.
[28]At 686–688.
[29]At 691–693.
Taylor arose for this Court’s consideration in Broadcasting Corporation of New Zealand v Attorney-General.[30] The context was a challenge to the High Court’s power to suppress publication of information and exclude the general public from a sentencing hearing. Moller J had made blanket orders of the widest scope. On appeal this Court was satisfied they were unjustifiably broad.
[30]Broadcasting Corporation of New Zealand v Attorney-General, above n 16.
The argument on appeal in Broadcasting Corporation did not appear to question Taylor’s authority. All three members of this Court accepted the nature of the inherent power recognised in Taylor. On that basis the Judges rescinded the existing orders and substituted limited suppression orders.[31]
[31] See at 130 per Cooke J.
Woodhouse P gave primacy to the principle of open justice in the particular context of closed hearings of criminal cases.[32] He was satisfied that the combined intent of s 46 of the Criminal Justice Act 1954 and s 375 of the Crimes Act 1961 was twofold — to supplant any pre-existing inherent power to sit in camera in criminal cases and to “replace the necessarily uncertain inherent powers of the Court”.[33] Within these confines, however, Woodhouse P acknowledged situations where a Judge may have to invoke his or her inherent power[34] to suppress publication of material presented in open Court. This step must be taken openly and on a reasoned basis consistent with the principles of open justice.[35]
[32]At 122–124.
[33]At 125.
[34] The term used by Woodhouse P was “jurisdiction”, but see our observation at [16] above.
[35]At 126–127.
While also giving particular weight to the principle of open justice, Cooke J held in summary that:
(a)On Taylor’s authority, even if either of the two relevant statutory provisions did apply, the Court’s inherent jurisdiction to make suppression orders remained intact.[36] That included the Court’s power to control its own procedure when sitting in public for sentencing purposes, entitling the Judge to suppress information but only in exceptional circumstances.
(b)Viscount Haldane in Scott v Scott[37] and Taylor confirmed that “the inherent jurisdiction exists because of necessity”[38] and so must be exercised with great care while bearing in mind that the general rule of publicity is only the means to an end and must yield to the paramount object of doing justice.[39]
(c)The legislature should not be treated as having interfered with this inherent power unless that conclusion was required by the terms or spirit of the enactment. The then recent enactment in the United Kingdom of s 11 of the Contempt of Court Act 1981, following the decision in Attorney-General v Leveller Magazine,[40] empowered Courts to give explicit directions prohibiting publication of names and information.[41] Taylor was treated as authority for the existence of the same power in New Zealand, despite the absence of fully corresponding legislation.[42]
[36]At 127.
[37] Scott v Scott [1913] AC 917 (HL).
[38] At 128.
[39]At 131.
[40] Attorney-General v Leveller Magazine Ltd, above n 14.
[41]Section 11 of the Contempt of Court Act 1981 (UK) provides: In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.
[42]At 130.
Richardson J identified two issues for determination — the basis for holding closed sittings of the High Court in criminal cases and the imposition of restrictions on publishing reports, particularly where exclusions are made.[43] On the second, Richardson J appeared to reject the Attorney-General’s submission that, if Moller J lacked statutory authority to impose a complete blanket over reporting, that power fell within his inherent jurisdiction.[44] However, he concurred in the result of substituting limited suppression orders within the Court’s inherent jurisdiction.[45]
(c) Muir v Commissioner of Inland Revenue
[43]At 132.
[44]At 135.
[45]At 136.
More recently, in Muir v Commissioner of Inland Revenue,[46] the issue was whether High Court confidentiality orders about the identity of taxpayers who had challenged assessments made by the Commissioner should continue. This Court was content to follow Taylor despite its rejection by the Privy Council in Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago,[47] concluding that it had an inherent jurisdiction to make confidentiality orders in tax cases despite the absence of a specific statutory power.[48]
(d) Supreme Court authorities
[46]Muir v Commissioner of Inland Revenue, above n 16.
[47]Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago, above n 15.
[48]At [32].
The Supreme Court has also cited Taylor with apparent approval. In Mafart v Television New Zealand,[49] when reviewing the extent of the High Court’s inherent jurisdiction, the Court stated:
[16] The adjectival jurisdiction and powers of the High Court, which enable it to give effect to its substantive jurisdiction, are part of the general jurisdiction recognised by s 16 of the Judicature Act. They were derived from the practice of the superior courts in England as at 1860, based on their inherent jurisdiction. Except to the extent modified by statute and rules, the Court continues to have inherent jurisdiction and powers to determine its own procedure. The inherent jurisdiction is not ousted by the adoption of rules, but is regulated by the rules, so far as they extend. To the extent that the rules do not cover a situation, the inherent jurisdiction supplies the deficiency. The inherent jurisdiction is:[50]
… the authority of the judiciary to uphold, to protect, and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.
[49]Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18.
[50]Jacob “The Inherent Jurisdiction of the Court” (1970) CLP 23 at 27–28, cited in Taylor v Attorney-General, above n 4, at 682 per Richmond J and at 689 per Woodhouse J.
In Television New Zealand Ltd v Rogers[51] McGrath J applied Taylor in delivering a separate majority judgment. At issue was whether the Court of Appeal correctly discharged an injunction restraining the broadcast of a videotaped police interview with a man charged with murder. In this context McGrath J discussed the powers of the Court of record in a criminal proceeding. He stated as follows:
[111] Regardless, however, of whether the police had authority to give the videotape to the news media, for reasons I shall shortly explain I am satisfied that their actions in this case amounted to an abuse of court process. As TVNZ had actively sought the videotape, they were involved in those actions. It is well established that the High Court has inherent ancillary powers to prevent abuse of its processes.[52] Those powers can be exercised “to defeat any attempted thwarting of [the court’s] process”.[53] This is so even if the abuse of court process takes place after a trial, as long as the conduct would affect “the administration of justice as a continuing thing”.[54] The powers are limited, in that their scope is confined to what is necessary to enable the court to act effectively in upholding the administration of justice.[55] The powers cannot be exercised in the general public interest if that interest is not concerned with the due administration of justice at the time or in the future. Within their limits, however, the powers can be exercised to control not only those associated with particular proceedings but also the world at large.[56]
[51]Television New Zealand Ltd v Rogers [2007] NZSC 91, [2008] 2 NZLR 277.
[52]Taylor v Attorney-General, above n 4, at 682 per Richmond J and 689 per Woodhouse J; Connelly v Director of Public Prosecutions, above n 20, at 1296 per Lord Reid and at 1301 per Lord Morris.
[53] Connelly v Director of Public Prosecutions at 1301 per Lord Morris.
[54] Taylor v Attorney-General, above n 4, at 677 per Wild CJ.
[55]Mafart v Television New Zealand Ltd, above n 49, at [17] per Elias CJ, Blanchard and McGrath JJ.
[56] Taylor v Attorney-General, above n 4, at 689 per Woodhouse J.
Moreover, without questioning the basis for its own authority, the Supreme Court has twice recently made suppression orders of the type made by Winkelmann J in the 9 December 2010 judgment. First, in R v Bain[57] the Supreme Court ruled that certain expert evidence which the Crown wished to lead at a pending retrial was inadmissible. Without discussion, the Court’s formal judgment concluded with these orders:
(A)The appeal is allowed.
(B)The disputed evidence is excluded and the material in issue is to be excised.
(C)The orders prohibiting publication of any part of the proceedings (including the reasons for judgment now given) continue, save that these orders may be published.
(D)Until completion of the retrial, the reasons for judgment are not to be distributed except to the appellant and his counsel and counsel for the respondent without leave of the Court.
[57]R v Bain [2009] NZSC 16, [2010] 1 NZLR 1.
Second, in a judgment delivered on 2 September 2011 the Supreme Court allowed appeals by 11 of the remaining 15 accused against other pre-trial decisions made by the High Court and this Court in the Hamed proceedings.[58] The first page recited the results of the appeals and the findings on admissibility of evidence in formal orders A and B and, in terms similar to the suppression order made in the 9 December 2010 judgment, this suppression order appeared as a banner at the top:
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL OR FURTHER ORDER OF THE COURT. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED BUT SUBJECT TO HIGH COURT SUPPRESSION ORDERS.
[58]R v Hamed [2011] NZSC 101.
On 19 September 2011 the Supreme Court reissued a redacted or edited version of its 2 September judgment, bearing the original date. The formal orders A and B remained the same. But the suppression order banner was amended to read:
ORDER RESCINDING EXISTING SUPPRESSION ORDERS IN RESPECT OF THE JUDGMENT OF 2 SEPTEMBER 2011, MADE BY THE HIGH COURT ON 15 SEPTEMBER 2011. IN PLACE OF THOSE ORDERS, ORDERS PROHIBITING PUBLICATION IN NEWS MEDIA, ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASES OR PUBLICATION BY ANY OTHER MEANS UNTIL FINAL DISPOSITION OF THE TRIAL ORIGINAL JUDGMENT [SIC] REDACTED VERSION MAY BE PUBLISHED.
In its 4 July 2011 judgment the High Court expressed its satisfaction that Taylor and Muir remained good law and followed both decisions. It noted the common ground between counsel that Taylor authorised the suppression order made on 9 December 2010 (subject to an argument about the effect of s 138 of the Criminal Justice Act). It also found support for its conclusion from the Supreme Court’s decision in Bain.[59]
English authorities
[59]The Solicitor-General of New Zealand v Siemer, above n 1, at [29]–[33].
Mr Edgeler says that the decisions of the House of Lords in Attorney-General vLeveller[60] and of the Privy Council in Independent Publishing Ltd v Attorney-General of Trinidad and Tobago[61] effectively overrule Taylor and should be followed here.[62] Before considering this submission, we note that decisions of the House of Lords are persuasive but not binding authority in New Zealand. The persuasiveness depends on two interrelated factors. The first is the applicability of the particular House of Lords decision to New Zealand law. The second is the consistency of the particular decision with any decision of the Supreme Court of New Zealand since it was established on 1 January 2004.[63]
[60]Attorney-General v Leveller Magazine Ltd, above n 14.
[61]Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago, above n 15.
[62]In both of these decisions the analysis is of the inherent power of the Court, rather than its inherent jurisdiction.
[63] Supreme Court Act 2003, ss 2 and 6.
Decisions of the Privy Council are in a different category. Those given on appeals from New Zealand remain binding unless and until reversed by the Supreme Court.[64] However, the status of Privy Council decisions on appeals from other jurisdictions is less clear. Originally, it was thought that our Courts should follow them unless there was an exceptional need to take account of the local development of some aspect of the law.[65] Some doubt was immediately cast on the breadth of this statement.[66] The current position is that decisions of the Privy Council on appeal from other jurisdictions will be, following the Supreme Court’s establishment in 2004, of persuasive value only.[67]
(a) Attorney-General v Leveller
[64]Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 at [32] per Elias CJ, at [51] per Blanchard J; Shannon v Shannon [2005] 3 NZLR 757 (CA) at [40]; and R v Chilton [2006] 2 NZLR 341 (CA) at [111].
[65]Breur v Wright [1982] 2 NZLR 77 (CA) at [83].
[66]See McCormack v Foley [1983] NZLR 57 (CA).
[67]R v Chilton, above n 64, at [114].
Leveller, decided in 1979, is relevant because two members of the House of Lords referred to Taylor. The House allowed a publisher’s appeal against a contempt finding primarily on a factual ground — that an apparent intention by the magistrates to suppress publication of a witness’s name when giving evidence by allowing him to write down his name and limiting its disclosure was frustrated by the witness’s own subsequent conduct in Court, enabling easy discovery of his identity.
In Leveller the House raised without deciding an underlying question of principle: what was the Court’s authority to make orders about publication outside the courtroom relating to proceedings before it, assuming that had been the magistrates’ intention?[68] Lord Diplock preferred to leave Taylor’s authority for that proposition as “an open question”. However, he recognised that a person who must have been aware of a ruling within a courtroom which departs in some measure from the general principle of open justice but who publishes information outside the courtroom may be guilty of contempt. That is not because such conduct is a breach of a ruling but because it interferes with the due administration of justice, the second or alternative ground for finding contempt.[69] So, where the purpose of a ruling is apparent to everybody, the Court is not required to give a warning.[70]
[68]At 451–452.
[69] See at [13] above.
[70]At 452.
In Viscount Dilhorne’s opinion the power recognised in Taylor to make a suppression order operating outside the Court did not represent the law of England; and accordingly if the magistrates had made such an order it would not have operated to convert conduct which did not constitute a contempt into it.[71] Nevertheless, he was satisfied that but for the witness’s inadvertent disclosure the contempt finding would have been sustained because the publisher would have known that publication of the witness’s details frustrated the magistrates’ objective. Lord Edmund-Davies doubted whether the Court’s powers on publication extended past explaining to the press and public any procedural decisions.[72] Lord Scarman discussed without answering whether a Court has power to make an order binding those who are neither witnesses nor parties.[73]
(b) Independent Publishing v Attorney-General of Trinidad and Tobago
[71]At 456; see also at 465 per Lord Edmund-Davies; and at 470 per Lord Scarman.
[72]At 465.
[73]At 471–472.
Independent Publishing, decided in 2004, is of more direct relevance.[74] On the opening of the prosecution case in a highly publicised trial in Trinidad and Tobago of 10 men on murder charges the Judge had, by consent, made an interim order directed specifically to the media “... both print and electronic ...”. The Judge suppressed publication until the trial’s completion on counsel’s advice that one accused had agreed to plead guilty and testify against his co-accused in exchange for a concession on sentence. The order was made against the background of a jury selection process which had taken six weeks.
[74]Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago, above n 15.
A newspaper immediately published an article implying that one accused had pleaded guilty and would be giving evidence against his co-accused. In Trinidad and Tobago the publishers successfully appealed against the trial Judge’s finding of contempt. But they were unsuccessful in challenging the constitutional validity of the orders. The Privy Council allowed their appeals.
Lord Brown delivered the Board’s unanimous judgment in Independent Publishing, holding that the trial Court had no inherent power to make an order postponing publication of a report of proceedings conducted in open Court. Such a power, if it was to exist, must be conferred by legislation. Without it, an order postponing the fair and accurate recording of court proceedings infringed the constitutional rights of free speech and freedom of the press. Nevertheless, publication of something likely to prejudice the fair administration of justice, particularly following a judicial warning as opposed to an order, could still give rise to a contempt.
The Board accepted that a Court had an inherent power to regulate its procedure in a criminal trial so as to depart from the principle of open justice. Examples were given of a contest during trial about admissibility of evidence, which would be heard in the jury’s absence, or allowing a witness to withhold his or her name.[75] In both cases the reporting of open Court proceedings must obviously be postponed, even though the Court has no power to make an order to this effect,[76] but by adopting either of the suggested courses postponement of reporting could be achieved without the need for orders.
[75]At [23]–[24].
[76]At [24].
As the Board noted, a different category of case was under consideration in Independent Publishing. That is where a Court does not make an order directly affecting the conduct of the proceedings before it: rather, it makes an order designed to postpone publicity of information given at trial which might affect the fairness of the proceedings.[77] The Board cited the Crown’s concession in argument in Socialist Workers[78] for the proposition that no such power existed at common law.[79]
[77]Section 4(2) of the Contempt of Court Act 1981 (UK) permits postponement of publication of a report of proceedings in these terms:
In any [legal proceedings held in public] the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the Court thinks necessary for that purpose.
(Emphasis added.)
[78] R v Socialist Worker Printers and Publishers Ltd, ex parte Attorney-General, above n 23.
[79]At [26].
The Board traced the origins of contrary authority to R v Clement.[80] In that case four men had been charged with high treason in what was known as the Cato Street conspiracy. Each elected to be tried separately and consecutively. In open Court at the first trial Abbott CJ directed that no reports of the trial should be published until all were concluded. The direction was, he explained, necessary in the furtherance of justice, to protect others remaining to be tried. There is no verbatim record of the Chief Justice’s direction. The official report says that:[81]
[H]e thought it necessary strictly to prohibit the publishing of any proceedings ... and that it was expected that all persons would attend to that admonition.
An unofficial account of the trials, cited in the Independent Publishing Co judgment,[82] is in similar terms, describing the direction as “this injunction”.
[80]R v Clement (1821) 4 B & Ald 218 (KB).
[81]R v Clement (1821) 4 B & Ald 218 (KB) at 219.
[82]Independent Publishing Co v Attorney-General of Trinidad and Tobago, above n 15, at [30].
Mr Clement was the editor of a newspaper which breached the Chief Justice’s direction. In his absence he was found guilty of contempt and fined. The Courts of Kings Bench[83] and Exchequer Chamber[84] dismissed successive challenges to the Chief Justice’s finding.
[83] R v Clement (1821) 4 B & Ald 218.
[84] In Re Clement (1822) 11 Price 68, 147 ER 404 (Exch Ch).
In Independent Publishing the Board acknowledged that in Scott v Scott[85] Viscount Haldane and Lord Atkinson cited Clement without apparently doubting its authority.[86] But the Board nevertheless distinguished these uncritical citations, before concluding that:
(a)Clement provided “... too insecure a foundation on which to rest the existence of such an inherent power in the Court today”.[87] Clement was described as a case which “had been heard at fever-pitch” and, it was observed, in the early 19th century “... the rights of the press and of free expression counted for rather less than they do today”.[88]
(b)The common law did not provide a foundation for a Court’s inherent power to make orders binding the public at large; such a power could only be conferred by statute.[89] However, it remained desirable for a Court to warn the press that it would be at risk of contempt proceedings were it to publish certain information, making it less likely that a contempt would be committed and easier to punish it if it were.[90]
(c)Within the Commonwealth, Taylor was referred to as the only authority to the contrary.[91] It was noted that this Court in Taylor did not cite Clement. The decision in Taylor was peremptorily dismissed as being based solely on Lord Morris’ dictum in Connelly,[92] said to be “hardly a convincing basis for such a conclusion”.[93]
[85] Scott v Scott [1913] AC 417 (HL).
[86]At [37]–[39]; Scott v Scott was an unusual case. A Court ordered that divorce proceedings be heard in camera. The wife petitioned successfully on the grounds of the husband’s inability to consummate the marriage. She provided copies of notes of evidence given at the hearing to her husband’s relations, to refute statements by him. The House of Lords allowed an appeal by the petitioner and her solicitor against findings of contempt. It held that the order to hear the proceeding in camera was made without jurisdiction. But, even if there was jurisdiction, subsequent publication of the proceedings was not prohibited.
[87]At [65].
[88]At [65].
[89]At [67].
[90]At [68].
[91]At [52] and [64].
[92]Connelly v Director of Public Prosecutions, above n 20.
[93]At [64].
We respectfully disagree with the Board’s rejection of Clement and dismissal of Taylor on a number of grounds. First, Clement was a decision of the Court of Kings Bench upheld unanimously by the Court of Exchequer. The Court of Kings Bench was unequivocal in recognising the Court’s authority at common law to make suppression orders. Holroyd J recited the right of a Court of record (the trial Court in Clement was one of “general gaol delivery”) to regulate its own proceedings by making orders for the furtherance of justice, and for those orders to continue in force while proceedings are pending.[94] Bayley J was of the same opinion,[95] emphasising the Court’s power:
... to prohibit any publication which might have a tendency to prevent the fair and impartial consideration of the case ...
[94]At 232–233.
[95]At 229–231.
Moreover, the Board in Independent Publishing paid relatively brief attention to the Court of Exchequer’s decision.[96] The Board referred to that Court’s approval of the suppression order — the breach of which constituted a contempt. But it particularly emphasised statements by members of the Court of Exchequer that publication also tended to obstruct and impede the due administration of justice — the alternative ground for finding contempt.[97]
[96]Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago, above n 15, at [68].
[97]At [34]–[36].
The Board’s emphasis appears misplaced. Separate judgments were delivered by the four Judges in the Court of Exchequer in Clement. Richards CB did not question the authority or correctness of what he described as an “injunction of the Court”;[98] Graham B proceeded on the premise that the order made “was most proper” and in the best interests of justice;[99] Wood B was in no doubt that the Court had the power to make an order for the stated purpose;[100] and Garrow B endorsed the order, emphasising that it “amounted only to a temporary suspension”.[101] Without question, all Judges were satisfied that the Chief Justice’s direction constituted an order; that it was within the Court’s power; and, critically, that its breach constituted a contempt in itself.
[98]In Re Clement (1822) 11 Price 68 at 81–83 (Exch Ch).
[99]At 84.
[100]At 87–88.
[101]At 90–91, 94.
Similarly, the Board’s treatment of the comments about Clement by Viscount Haldane and Lord Atkinson in Scott v Scott is strained.[102] In particular, it does not follow that, because Lord Atkinson noted that Mr Clement was punished both for acting contrary to the Court’s order and for obstructing public justice, he did not consider Clement authority for concluding that a breach of the order would of itself constitute a contempt. The Board’s emphasis on the disjunctive meanings of contempt seems unduly narrow: on one available reading of the judgments, the Court of Exchequer in Clement was doing no more than making the logical point that the deliberate breach of an order of the Court, designed to advance the ends of justice, was necessarily an affront to the administration of justice.
[102]At [37]–[39].
Second, one of the Board’s grounds for distinguishing Clement was that the case was heard at “fever pitch”. It is not easy to follow how the speed of proceedings might be relevant if the result and reasoning are otherwise sustainable. Besides, the reports disclose that the suppression order was made at a trial in April 1820. The trials may themselves have been heard in quick succession. But the appeals to the Court of Kings Bench and to the Court of Exchequer were heard in January 1821 and June 1822 respectively.
Third, in Independent Publishing the Board dismissed Lord Denning MR’s citation of Clement in the R v Horsham Justices case[103] for the proposition that Courts had a long settled power to make an order postponing publication if it was necessary to further justice in pending or imminent proceedings irrespective of the existence of s 4(2) of the Contempt Act 1981. The Board described Lord Denning’s statement as “mere assertion”.[104] Again this characterisation may be questioned. Arlidge, Eady & Smith: On Contempt note that until Independent Publishing, Clement had been understood as the authority for making orders postponing or permanently suppressing publication of information given in Court.[105] The authors further note that there is without doubt a power to postpone reporting of certain aspects of proceedings until the conclusion of those very proceedings. That is what Winkelmann J did when making the suppression order in this case.
[103]R v Horsham Justices, ex parte Farquharson [1982] 1 QB 762 at 791.
[104]Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago, above n 15, at [50].
[105]Arlidge, Eady & Smith: On Contempt (4th ed, Sweet & Maxwell, London, 2011) at [7-143] and [7-98]–[7-99]; see also Borrie & Lowe’s The Law of Contempt (3rd ed, Butterworths, London, 1996) at 279.
Fourth, the Board dismissed Taylor because it was based “solely in reliance on Lord Morris’s dictum in Connelly v Director of Public Prosecutions.[106] We simply note that all three judgments delivered in Taylor were based on a number of grounds and authorities.[107] And the Board did not explain why Lord Morris’s dictum, which otherwise appears a sound precedent for Taylor, should not have been applied.
Other Commonwealth authorities
[106] At [64].
[107] Summarised at [17] to [23] above.
In Independent Publishing the Board referred briefly to appellate authority in Canada and Australia.[108] The Board found support for its approach in McHugh JA’s comments in the New South Wales Court of Appeal in John Fairfax and Sons Ltd v Police Tribunal.[109]But, as Ms Laracy emphasises, recent comments made by the Victorian Court of Appeal in News Digital Media Pty Ltd v Mokbel[110] and by French CJ in his concurring judgment in the High Court of Australia in Hogan v Hinch[111] suggest a contrary view. On balance we agree with her that the Australian authorities do not provide consistent guidance.
[108] At [53]–[57].
[109] John Fairfax and Sons Ltd v Police Tribunal (1986) 5 NSWLR 465 (NSWCA) at 477.
[110] News Digital Media Pty Ltd v Mokbel [2010] VSCA 51.
[111] Hogan v Hinch [2011] HCA 4, (2011) 243 CLR 506 at [25]–[26].
Canadian authority arguably supports Taylor. In the Supreme Court of Canada in Dagenais v Canadian Broadcasting Corporation[112] L’Heureux-Dubé J stated:
... as part of our democratic tradition, Judges have always had the discretion to order in camera hearings or issue full or partial publication bans related to judicial proceedings, be it under the criminal, civil or common law. It is not up to this Court, or any other Court for that matter, to reverse a rule which has existed for hundreds of years in this free and democratic Canadian society without any disastrous effect or even complaint. Such a radical change in the way our criminal law has operated for hundreds of years must be made by Parliament.
(Our emphasis.)
[112] Dagenais v Canadian Broadcasting Corporation (1994) 94 CCC (3d) 289 at 346.
In Independent Publishing the Board distinguished this statement, effectively treating it as obiter, on the ground that the Court was exercising the settled power to grant an interim injunction to restrain a threatened contempt. However, we agree with Ms Laracy that L’Heureux-Dubé J’s statement cannot be so readily dismissed. The Supreme Court’s later decision in R v Mentuck[113] appears to recognise an inherent judicial power to make non-publication orders in a way which is not inconsistent with Canadian Charter values.
Decision
(a) New Zealand and English approaches compared
[113] R v Mentuck 2001 SCC 76, [2001] 3 SCR 442.
The New Zealand and English decisions share a common recognition of a court of record’s inherent power to regulate its own proceedings, including where necessary to hear evidence in camera or to exclude the public from the courtroom. But the cases diverge sharply on whether and to what extent that power includes prohibitions on publication. In New Zealand the scope of the power relevantly includes orders which (a) permanently suppress publication of the names of witnesses giving evidence at trial;[114] (b) bind the world at large — that is those who are not parties to the proceedings;[115] (c) operate past the date of completion of the proceedings;[116] (d) operate to suppress publication outside the courtroom of information or events occurring within the court;[117] (e) apply to cases where the subject matter is governed by statute, providing the order is not in contra-distinction;[118] and (f) partially postpone publication of a judgment or part of it until final disposition of the proceeding by trial.[119]
[114]See Taylor v Attorney-General, above n 4.
[115]See Taylor v Attorney-General.
[116] See Taylor v Attorney-General.
[117] See Taylor v Attorney-General.
[118]Broadcasting Corporation of New Zealand v Attorney-General, above n 16.
[119] R v Bain, above n 57; R v Hamed, above n 58.
English authority is currently to the contrary. Leveller and Independent Publishing reflect a restrictive, apparently policy driven, approach. In particular, English courts recognise a power to make a non-publication order only where it is authorised by statute, particularly the Contempt of Court Act 1981. Otherwise there is no inherent power to make orders binding the world at large. While accepting that reporting of certain open court proceedings must be postponed, the Privy Council does not countenance a common law power to enforce this objective. Instead, where the position is not governed by statute, faith is placed in a judicial warning system.
From a New Zealand perspective, the English approach presents a number of difficulties. First, what is countenanced in England seems uncertain and arbitrary — in marginal or problematic cases those minded to publish will not know where they stand especially without a judicial warning. The publisher’s exposure to a criminal sanction is directly relevant here. In the Board’s opinion in Independent Publishing, a warning system makes a contempt less likely, and more easily punishable. But an order removes doubt in both respects, and in that sense is quintessentially the exercise of a power enabling “a Court which is endowed with a particular jurisdiction ... to act effectively within such jurisdiction.”[120]
[120]Connelly v Director of Public Prosecutions, above n 20, at 1301 per Lord Morris.
Second, it seems unduly subtle to distinguish between a warning and an order prohibiting publication, both directed to the world at large, on the basis that a power exists to give one but not to make the other when the result sought is the same. Debate about the means of ensuring that publication is postponed — whether by order or warning — should not obscure the overriding objective. Arguably, the difference reduces to an English preference for implied control on reporting through reliance on an optional and informal warning system whereas courts in New Zealand have elected to exercise direct control through orders.
Third, in this respect, Independent Publishing gives deference to the general principle of open justice as the policy reason for not recognising an inherent power to order postponement or suppression of publication. However, this deference is arguably illusory. The mechanisms proposed by the Board — of holding an evidential admissibility challenge in camera or allowing a witness not to mention his or her name — necessarily intrude upon the principle of open justice. So too, does a judicial warning not to publish.
Fourth, when it is common ground that publication must be postponed in the interests of the fair administration of justice, the act of publication immediately places that ultimate objective at real jeopardy. Imposition of a formal sanction cannot repair the damage which may already have been done. As counsel observed in argument in Independent Publishing, it is “shutting the stable door after the horse has bolted”.[121] In that respect, the deterrent effect of an order assumes real significance.
[121]Independent Publishing Co v Attorney-General of Trinidad and Tobago, above n 15, at 198.
Fifth, it is notable that the Board’s focus in Independent Publishing is almost entirely on the general rule of open reporting — that justice must be administered in public. Little is said about the Court’s inherent power to protect fair trial rights. While we accept of course that the right to a fair trial has the same value in England as in New Zealand, Independent Publishing may reflect a different societal deference to the power of the established media.[122]
(b) New Zealand context
[122]At [65]–[66].
New Zealand inherited the English common law of contempt following the passage of Ordinance No 1 of the Legislative Council, 22 December 1841. In particular, after the Supreme Court Acts of 1860 and 1862, the then Supreme Court had the same jurisdiction as English courts to punish contempt.[123] In our judgment, Clement, decided in 1821–1822, was part of that law. It stood as authority for the High Court’s power to punish by a finding of contempt a breach of an order made by a court at trial in its inherent power postponing publication of any report of proceedings. Such orders necessarily bind the world at large. In our view Independent Publishing, delivered in 2004 and allowing an appeal from Trinidad and Tobago on a point concerning its constitutional law, does not operate to change or modify that statement of the law of New Zealand.
[123]Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at 615.
We accept that Clement was not cited in Taylor. But that is of no material consequence. The settled line of authority in this Court following Taylor and in the Supreme Court is also consistent with Clement. The inherent power recognised in Taylor and Clement extends, we are satisfied, to postponement of publication of a judgment in criminal proceedings.
There is, of course, a powerful policy factor supporting Taylor and its application to this case. Protection of fair trial rights has long been a dominant consideration for courts when exercising inherent powers. Section 25 of the New Zealand Bill of Rights Act 1990 (the NZBORA) formalises the right of an accused person to a fair trial; s 14 of the same statute formalises the right to freedom of expression. The latter right itself justifies the principle of open justice; its importance is a common theme of all the leading cases and its validity goes without question.
However, open justice is not an end in itself; rather, it is a means to the paramount objective of doing justice.[124] Open justice is an empty concept if a Court lacks effective powers to ensure that it is able to do justice in the open. And as the full bench of this Court observed in Gisborne Herald Co Ltd v Solicitor-General:[125]
The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot both be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.
[124]Broadcasting Corporation of New Zealand v Attorney-General, above n 16, at 131 per Cooke J; Scott v Scott, above n 85, at 437 per Viscount Haldane; and Hogan v Hinch, above n 111, at [87].
[125] Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 (CA) at 575.
In this context, the wording of the NZBORA right to a fair trial is relevant: s 25(a) states that the right is:
... to a fair and public hearing by an independent and impartial court ...
Criminal proceedings have become the subject of increasingly intense public scrutiny. Both the established and social media are the vehicles. Courts are particularly conscious of the risks to fair trial rights posed by modern means of electronic dissemination of material. Suppression orders, directed at what can or cannot be published about proceedings outside the courtroom, are a preventative strategy employed by courts to protect the statutory right to a “... fair and public hearing by an independent and impartial court”. Their purpose is to ensure that independence and impartiality by keeping from potential jurors information which might unfairly influence or prejudice a trial or possibly deter people from seeking justice or participating in its administration.
The Court’s inherent power to regulate its procedures, for the ultimate objective of fairness, is the most flexible and effective means of achieving that purpose. As the High Court noted in its 4 July 2011 judgment, this Court has frequently made postponement of publication orders to that end.[126]
[126]The Solicitor-General of New Zealand v Siemer, above n 1, at [29].
On the sliding scale identified by Richmond J in Taylor,[127] orders postponing publication represent only a partial and temporary intrusion upon the principle of open justice while seeking to protect fair trial rights. Such orders are neither absolute nor blanket; while deferring the date of general publication until after trial, they allow limited publication in established law reports. Defence counsel’s opposition to the Crown’s application to vary the suppression order made in the 9 December 2010 judgment attests to their importance. It follows that we reject Mr Edgeler’s secondary argument that the suppression order was so excessive as to be made without jurisdiction.
(c) Conclusion
[127] See at [19](d) above; Taylorv Attorney-General, above n 4, at 682–683.
In our judgment, once the existence of an inherent power in a court to regulate its procedures is accepted, New Zealand courts should be free to settle its boundaries and develop the law according to their perception of domestic conditions and policy considerations. In express recognition of this divergence, the Privy Council has previously declined to interfere with decisions of this Court especially where the New Zealand approach has stood for many years and has been followed and applied without challenge or problems.[128]
[128]Invercargill City Council v Hamlin [1996] 1 NZLR 513 (PC) at 519–520; and Lange v Atkinson [2000] 1 NZLR 257 (PC) at 263.
New Zealand courts are best placed to assess local societal conditions justifying the power to make orders. Contempt has traditionally been a creature of the common law, as evidenced by its long history and development in the New Zealand context. Its expansion properly falls within the role of the High Court in protecting the due administration of justice. In our opinion, this divergence from the English position is not of itself a sufficient reason to reverse Taylor and subsequent authorities.
Taylor has stood in New Zealand for 37 years. It has been followed and applied by this Court and the Supreme Court. We accept, of course, that this factor is not of itself a reason for declining to follow Taylor if we are satisfied that it was wrongly decided. We accept also that Taylor’s authority was not in issue before the Supreme Court in Bain. Nevertheless, we would require particular persuasion that a different course is appropriate after this period of time.
As noted, Taylor is also consistent with the foundation laid in Clement. Either line of authority justifies the High Court’s suppression order made on 9 December 2010. In terms of strict legal analysis, it could be said that the suppression order extends Clement in that it was made before commencement of trial. But that extension is justified, as we have explained, by New Zealand’s own statutory regime for determination before trial of issues likely to affect trial.
In recognising the inherent power to postpone publication, New Zealand law has settled on striking the balance in favour of the right to a fair trial whenever it conflicts with freedom of expression and the principle of open justice, and then only on a limited and temporary basis. And, significantly, as we shall explain, the legislature has not chosen to intervene.
Statutory provisions
The Criminal Justice Act 1985
Alternatively, Mr Edgeler submits, if Taylor was correctly decided, it was impliedly overruled by s 138 of the Criminal Justice Act which materially provides:
138 Power to clear court and forbid report of proceedings
(1)Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.
(2)Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:
(a)An order forbidding publication of any report or account of the whole or any part of—
(i)The evidence adduced; or
(ii)The submissions made:
(b)An order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses:
(c)Subject to subsection (3) of this section, an order excluding all or any persons other than the informant, any [Police employee], the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.
(3)The power conferred by paragraph (c) of subsection (2) of this section shall not, except where the interests of security or defence so require, be exercised so as to exclude any accredited news media reporter.
(4) An order made under paragraph (a) or paragraph (b) of subsection (2) of this section—
(a)May be made for a limited period or permanently; and
(b)If it is made for a limited period, may be renewed for a further period or periods by the court; and
(c)If it is made permanently, may be reviewed by the court at any time.
(5)The powers conferred by this section to make orders of any kind described in subsection (2) of this section are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.
(6)Notwithstanding that an order is made under subsection (2)(c) of this section, the announcement of the verdict or decision of the court (including a decision to commit the defendant for trial or sentence) and the passing of sentence shall in every case take place in public; but, if the court is satisfied that exceptional circumstances so require, it may decline to state in public all or any of the facts, reasons, or other considerations that it has taken into account in reaching its decision or verdict or in determining the sentence passed by it on any defendant.
…
Mr Edgeler’s argument starts from an absolute premise: he says that suppression orders may only be made in accordance with the Criminal Justice Act or some other enactment. He says that, if there was ever the common law power to suppress publication of judgments in criminal cases, Parliament removed it by enacting the Criminal Justice Act.
In its 4 July 2011 judgment the High Court also rejected this submission. It found that s 138(5) upon which Mr Edgeler specifically relies, is limited to the three situations noted in s 138(2).[129] We agree the High Court’s conclusion. We are able to express our reasons briefly.
[129]The Solicitor-General of New Zealand v Siemer, above n 1, at [35]–[36], approving Paraha v Police [2008] NZAR 581 (HC).
Section 138 replaced s 46 of the Criminal Justice Act 1954 and s 375 of the Crimes Act 1961. The empowering provisions of s 138(2) are directed towards suppressing publication of events which occur during the course of a sitting “... of any court dealing with any proceedings in respect of an offence...” and also to excluding the public or sitting in camera. Parliament’s confirmation in s 138(5) that the statutory powers “... are in substitution for any such powers that a court may have had under any inherent jurisdiction ...” reinforces the specific purpose and effect of s 138(2).
The suppression order made in the 9 December 2010 judgment is of publication of the judgment itself. As Ms Laracy observes, a judgment is the Court’s own product. In contrast, evidence or submissions which are the subject of s 138(2) are the products of participation by witnesses or counsel. On its plain meaning, s 138 does not extend to a judgment, and the Court’s inherent jurisdiction to suppress publication of a judgment is not ousted by s 138(5). We cannot read the provision as suggesting any wider legislative intent to curb or restrain the Court’s inherent jurisdiction.[130]
[130] See, to the contrary, Re Victim X [2003] 3 NZLR 220 (CA) at [19].
We should add that s 138 attracted little attention in Hansard debates and submissions when introduced as the Criminal Justice Bill (No 2) 1985. Its apparent purpose was to consolidate previous statutory powers. Section 138 is in virtually the same form as earlier provisions in other enactments, and is aimed at prohibitions on court reporting of evidence or submissions. In both Taylor and Broadcasting Corporation this Court was not satisfied that the existing statutory provisions operated to oust the High Court’s inherent power to make suppression orders.
The Criminal Procedure Act 2011
In assessing whether and to what extent Taylor remains good law in New Zealand, some assistance is available from the recently enacted Criminal Procedure Act 2011. In its Issues Paper on Suppressing Names and Evidence the Law Commission stated:[131]
The scope of the remaining inherent jurisdiction is unclear. The approach of the Privy Council would suggest that the courts have no general authority to make orders binding people in their conduct outside the courtroom,[132] but this is not an approach which has found favour with the New Zealand courts. In Taylor v Attorney-General,[133] the Court of Appeal held that the inherent jurisdiction empowers a court to make orders which are necessary to enable it to act effectively, and it may even exercise such jurisdiction in respect of matters regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision.
[131]Law Commission Suppressing Names and Evidence (NZLC IP13, 2008) at 45.
[132]Independent Publishing Co v Attorney-General of Trinidad and Tobago, above n 15.
[133]Taylor v Attorney-General, above n 4.
When addressing whether the continued existence of the Court’s inherent jurisdiction to make suppression orders is a problem, the Law Commission noted:[134]
The main advantage of retaining the inherent jurisdiction is that it gives the court the power necessary to enable it to prevent abuse of judicial process or act effectively within its jurisdiction, and to punish for contempt. According to the rule in Taylor v Attorney-General, it could be used to supplement the power of a court under the relevant section, but not in a manner contrary to the statutory provision. This creates a measure of flexibility which may be significant when unforeseen circumstances arise. The question is whether, and how often, situations will arise which fall outside the ambit of the statutory provision.
[134]Law Commission Suppressing Names and Evidence (NZLC IP13, 2008) at 45.
In our judgment, the authority of New Zealand Courts to make suppression orders derives from their inherent powers to regulate procedure and ensure fairness and not because of the High Court’s inherent jurisdiction. So we consider that the Commission is incorrect to refer to inherent jurisdiction in this context, though the error is understandable given the interchangeable use of “inherent jurisdiction” and “inherent power” in the cases to which the Commission referred. However, this view does not detract from the Commission’s advice that the authority to make such orders should supplement statutory provisions.
In its 2009 Report, the Commission commented that “it is extremely rare for the inherent jurisdiction of the court to be ousted by legislation.”[135] Only two such examples were found: s 10 of the Foreshore and Seabed Act 2004, expressly ousting the High Court’s inherent jurisdiction to hear and determine any customary rights claim; and provisions in the Bail Act 2000, ousting the High Court’s inherent jurisdiction relating to persons who have been refused bail or had bail otherwise dealt with by a Community Magistrate.[136] Nevertheless, the Commission considered whether the inherent jurisdiction ought to be ousted for all suppression orders, not just those covered by s 138(2) of the Criminal Justice Act.
[135] Law Commission Suppressing Names and Evidence (NZLR R109, 2009) at 51.
[136]Bail Act 2000, ss 40–41.
In the Commission’s view, as the legislation set out specific grounds for suppressing names and evidence:[137]
... the use of the inherent jurisdiction should be unnecessary in all but a very few cases. Even then, according to the rule in Taylor v Attorney-General, the inherent jurisdiction can be used to supplement the power of a court under the relevant section, but not in a manner contrary to the statutory provision.
For these reasons, we do not recommend that the inherent jurisdiction of the court be ousted in relation to the suppression of name and evidence. However, we recommend that the existing ouster of the inherent jurisdiction in relation to the power to close the court be continued. The right to a public hearing lies at the heart of open justice, and the bases for closing the court should be closely circumscribed.
[137]Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at 51–52.
The Criminal Procedure Act 2011 introduces a more prescriptive regime in limiting the power to make suppression orders for names, evidence and submissions. Significantly, however, Parliament has left s 138 but without s 138(5) in the same form (despite this Court’s interpretation that it has the inherent power to make binding blanket suppression orders). Parliament could have closed off the inherent jurisdiction or power if it had wished.[138] The new legislation has no equivalent to s 138(5). In contrast, the power to clear the Court provided under the legislation is in substitution for the Court’s inherent powers to that effect.[139]
[138]Section 205 of the Criminal Procedure Act 2011 (which applies only to proceedings begun on or after 5 March 2012), provides:
[139]Criminal Procedure Act, s 197.
In summary, we are satisfied that in enacting the Criminal Procedure Act, Parliament has essentially accepted the Law Commission’s advice to retain Taylor and not interfere with the High Court’s inherent power to make suppression orders. Parliament’s approach can be construed as an acceptance of the importance of that power’s flexibility within the Court’s overriding responsibility to exercise its powers to ensure a fair trial.
Other grounds of appeal
Nullity
Mr Ellis submits that the finding made in the High Court’s 4 July 2011 judgment is a nullity. As we understand it, Mr Ellis contends that the contempt proceeding should be treated as a summary criminal prosecution because Mr Siemer was effectively being tried with an offence. Accordingly, the Solicitor-General should have laid an information in the prescribed form and upon oath under the Summary Proceedings Act 1957.[140]
[140] Summary Proceedings Act 1957, ss 12 and 15.
Mr Ellis’ argument proceeds on a misunderstanding of statements by the Supreme Court in Siemer v Solicitor-General (Siemer (Recall)) and Siemer v Solicitor-General (Siemer (Jury Trial)).[141] In both decisions the Court confirmed what has always been the law: that is, the contempt proceeding is a unique summary process.[142] As Ms Laracy points out, the word “summary” connotes a hearing by a Judge alone — the process is described as summary because it is designed to be expeditious. The Solicitor-General commences the proceeding by filing an originating application in the High Court supported by affidavits.[143] That was the process adopted here in accordance with the High Court Rules 19.3 and 19.13 and in which Mr Siemer participated.
[141]Siemer v Solicitor-General [2011] NZSC 32 [Siemer (Recall)] and Siemer v Solicitor-General [2011] NZSC 4 [Siemer (Jury Trial)].
[142]See Arlidge, Eady & Smith on Contempt (3rd ed, Sweet & Maxwell, London, 2005) at [3-55] and [3-86].
[143] Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA) at 235.
Alternatively, Mr Ellis submits that the contempt finding was a nullity because Mr Siemer was entitled to be advised pursuant to s 24(a) of the NZBORA of the nature and details of the charge (including the laying of a formal information) and of the maximum penalty; to be allowed to enter a plea; and to have judgment entered in open Court.
We have already answered this submission. Whether the contempt is characterised as criminal or civil, a summary process is adopted. A charge is not laid in terms of s 24(a) of the NZBORA. In this case the High Court was not required to ask Mr Siemer to enter a plea because it was not making a finding on a charge. Instead, the application and supporting affidavits provide the detail of the claim — that is of the nature of the contempt. The contemnor is given an opportunity to file affidavits in answer. Mr Siemer does not complain that the application and supporting affidavits failed to give proper particulars.
Ms Laracy is correct that contempt proceedings in New Zealand are neither fundamentally civil nor criminal. Rather, as noted, they are a unique summary process with certain protective features similar to those found in criminal proceedings.[144] Previous distinctions between the two categories of contempt are no longer relevant, given that the same criminal standard of proof applies with common rights of appeal.[145]
Bringing the administration of justice into disrepute or abuse
[144] Siemer (Recall), above n 141.
[145] Attorney-General v Newspaper Publishing Plc, above n 11.
Mr Ellis submits that the lack of clarity in the law of contempt is a fundamental breach of the rule of law, and that “convicting someone of an offence” in these circumstances brings the administration of justice into disrepute. He says that the process undertaken in the High Court was an abuse. In this respect, Mr Ellis weaves into his argument an allegation that the Solicitor-General should not have commenced the proceeding because of personal animosity generated by criticisms made of the Solicitor-General by Mr Siemer on his website.
This submission is of such generality that we are unable to address it other than to observe that we are not persuaded that it provides an arguable basis for allowing Mr Siemer’s appeal and that we reject any criticisms made of the Solicitor-General.
Unreasonable limitation on freedom of expression
Mr Ellis submits that the High Court’s finding of contempt constitutes an unreasonable limitation on Mr Siemer’s freedom of expression guaranteed by s 14 of the NZBORA. He says that Mr Siemer was simply exercising that freedom when publishing articles critical of Winkelmann J’s judgment and reasons for ordering trial before a Judge alone. This submission overlooks the fact that Mr Siemer was not found in contempt for publishing an expression of his opinion but for publishing a judgment in deliberate breach of a Court order.
Decision wrong in law
Mr Ellis submits that in its 4 July 2011 judgment the High Court erred in finding that Mr Siemer had committed a contempt for various reasons including that:
(a)The suppression order made on 9 December 2010 should never have been made without reserving a power or prompt right to Mr Siemer to review the suppression order. Mr Siemer was not a party to the proceeding. However, he was entitled, if he wished, to apply to review the order. Instead, he elected immediately to breach the order and must bear the consequences. As Elias CJ and McGrath J observed in Siemer v Solicitor-General,[146] our constitution requires that Court orders are obeyed until properly challenged or set aside.
(b)The 9 December 2010 judgment gave no reasons for the suppression order, contrary to the requirements of open justice.[147] However, Winkelmann J gave full reasons for ordering severance and trial before a Judge alone; they were the contested substantive issues for determination. It is common ground that the Judge did not give separate reasons for her suppression order. We agree that that might be a preferable practice, although the reason in this case was self evident to an informed and objective reader. But the absence of reasons does not vitiate the suppression order itself because, as Ms Laracy observes, the order itself was the formal expression of a judicial act.
(c)The suppression order made on 9 December 2010 was an abuse of power which Mr Siemer had a right, even a duty, to expose — one which is worthy of merit, not of an application for contempt. It is unnecessary for us to address an argument based upon the premise that Mr Siemer had a wide duty to breach a Court order.
Failure to prove harm
[146] Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [26].
[147] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [79]–[80].
Mr Ellis submits that Mr Siemer’s publication of the suppression order was not a serious breach likely to cause violence or breach of fair trial rights. On the evidence, he says, there is no more than a remote possibility that Mr Siemer’s website will cause any harm, let alone substantial or serious harm. Mr Ellis did not cite authority to support this novel proposition which is unsustainable. Publication of a judgment which is the subject of a suppression order designed to protect fair trial rights is likely to put those rights at risk. Moreover, as Ms Laracy observes, it is a sufficient affront to the administration of justice that somebody has deliberately breached a binding Court order.
Apparent bias
Mr Ellis makes a submission of bias, actual or apparent, because MacKenzie J issued a minute on 19 August 2011 which was wrongly described as a judgment. The document, delivered following the 4 July 2011 judgment, directed a fixture for 2 September 2011 to determine both what Mr Siemer called an application for arrest of judgment or dismissal for abuse of process and his sentencing on the same day. According to Mr Ellis, the minute or judgment indicated that the High Court had decided, without waiting to hear oral argument, that Mr Siemer’s application would be denied and he would be sentenced on 2 September. According to Mr Ellis, the argument is “admirably simple” because no well informed independent observer could conclude other than that there was the appearance if not the actuality of predetermination.
However, Mr Ellis’ argument is misconceived. The High Court simply scheduled the hearing of Mr Siemer’s application and his sentencing for the same date. Plainly the sentencing would not proceed if his application was successful.
Excessive sentence
Mr Ellis submits that the sentence of six weeks imprisonment imposed on Mr Siemer following the finding of contempt was manifestly excessive. He says that neither the Solicitor-General nor any of the accused in the Hamed proceedings alleged that Mr Siemer’s publication of the 9 December 2010 judgment raised a real risk of interference with justice; that Mr Siemer’s breach was analogous to a breach of a suppression order made under s 138 of the Criminal Justice Act which would attract a maximum penalty of $1,000; that the High Court wrongly took into account the fact that this was the second occasion on which Mr Siemer, in an essentially similar capacity, had committed a contempt; and that the High Court should have applied the principles of sentencing and hierarchy of sentences provided by ss 8 and 10A of the Sentencing Act 2002 respectively. Mr Ellis compares New Zealand unfavourably to other countries which imprison bloggers and citizen journalists.
We are not satisfied that the sentence of six weeks imprisonment imposed by the High Court was manifestly excessive. Indeed, we agree with Ms Laracy that a sentence of one half of the maximum might be viewed as lenient in the circumstances. The High Court properly imposed a sentence of imprisonment designed to deter and denounce Mr Siemer’s conduct.[148] He knew or must have known, like any reasonable or well informed observer, that the suppression order was made to protect the fair trial rights of the accused. The appeal against sentence is dismissed.
Result
[148]The Solicitor-General of New Zealand v Siemer, above n 3.
Mr Siemer’s appeal is dismissed.
Mr Siemer is to present himself at Auckland Remand Prison at 9 am on 25 May 2012 to commence serving his term of six weeks imprisonment.
There will be no order as to costs.
Solicitors:
Crown Law Office, Wellington for Respondent
205 Court may suppress evidence and submissions
(1) A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a) cause undue hardship to any victim of the offence; or
(b) create a real risk of prejudice to a fair trial; or
(c) endanger the safety of any person; or
(d) lead to the identification of a person whose name is suppressed by order or by law; or
(e) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(f) prejudice the security or defence of New Zealand.
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