Solicitor-General v Siemer HC Wellington CIV 2010-404-8559
[2011] NZHC 558
•13 May 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2010-404-8559
BETWEEN THE SOLICITOR-GENERAL OF NEW ZEALAND
Applicant
ANDVINCENT ROSS SIEMER Respondent
Hearing: 4-5 April 2011
Counsel: Ms M Laracy and Mr G Robins for the Applicant
Mr T Ellis and Mr G Edgeler for the Respondent
Judgment: 13 May 2011
JUDGMENT OF MALLON J
Contents
Introduction ......................................................................................................................................... [1] Background ......................................................................................................................................... [3] Contempt application ........................................................................................................................ [12] Opposition to contempt application .................................................................................................. [17] Strike out for want of jurisdiction ..................................................................................................... [20] The role of the Solicitor-General....................................................................................................... [22] Solicitor-General as counsel ........................................................................................................ [23] Decision to bring contempt application ....................................................................................... [25] Submissions ............................................................................................................................. [25]
My assessment ......................................................................................................................... [30] Subpoenas ......................................................................................................................................... [52] Breach of the presumption of innocence ........................................................................................... [75] Mode of evidence .............................................................................................................................. [84] Recusal .............................................................................................................................................. [91]
Conclusion ........................................................................................................................................ [95]
THE SOLICITOR-GENERAL OF NEW ZEALAND v SIEMER HC WN CIV 2010-404-8559 13 May 2011
Introduction
[1] The Solicitor-General (the applicant) alleges that Mr Siemer (the respondent) has published, and continues to publish, an article contrary to suppression orders made by the High Court. He applies for an order that Mr Siemer be held in contempt of court and for other related orders. The application is scheduled to be heard by a Full Court in June of this year.
[2] Before me at this stage are a number of interlocutory matters: (a) A strike out application;
(b) An application relating to the Solicitor-General‘s role in the
application;
(c) An application relating to the summoning of witnesses;
(d)An allegation that there has been a breach of the presumption of innocence;
(e) An application concerning the mode of evidence.
Background
[3] The suppression orders relate to the trial of those charged with offences following a police investigation into the activities of individuals in the Urewera Ranges. The arrests of those individuals, the charges they would face and their initial appearances in Court attracted widespread media interest. The police had sought the consent of the Solicitor-General (Mr Collins QC) to lay terrorism charges. That consent was not given. The charges as brought relate to Arms Act offences. Some of the accused also face charges of participating in an organised criminal
group.1 At the time of hearing the interlocutory applications before me, the trial of those charges was scheduled to commence at the end of this month.
[4] On 9 December 2010 a High Court judgment (“the Judgment”)2 was delivered on two pre-trial matters: an application for severance and an application for a judge alone trial. The Judge (Winkelmann J, the Chief Judge) ordered severance in respect of three of the accused. She ordered that the remaining accused be tried before a Judge alone. The Judgment did not discuss suppression or reasons for suppression but on the front page, above the parties‘ names and other details, it said:
This 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.
[5] Mr Siemer owns and operates a website: / On 11 December 2010 he published an article “Judge or Be Judged” on his website. The article discussed the Judgment and contained a link to it. The suppression details, set out on the front page on the Judgment accessible by the link, had been altered so as to substitute “Kiwisfirst” for “Law Digest”. The last sentence of the suppression details therefore read “publication in law report or kiwisfirst is permitted.”
[6] Crown Law received an email from Mr Siemer which contained a link to his website and the article. On 17 December 2010 Crown Law wrote to Mr Siemer referring to the article and the Judgment. Mr Siemer was advised that the Solicitor- General viewed the article to be “a clear and deliberate breach of the suppression order”. Mr Siemer was requested to remove the article, the copy of the Judgment and any further references to them immediately. The letter said:
Subject to considering anything you wish to say in mitigation, the Solicitor- General‘s current intention is to prosecute this matter as a contempt of court. He will seek a term of imprisonment and is likely to proceed with the application regardless of whether the particular suppression order remains in force.
1 This background is discussed in Solicitor-General v Fairfax New Zealand Ltd HC Wellington
CIV 2008-485-000705, 10 October 2008.
2 R v Bailey HC Auckland CRI 2007-085-007842, 9 December 2010.
[7] Mr Siemer did not send a reply to that letter. Instead, on 18 December 2010, he published on his website an article “Crown to persecute where law prevents prosecution.” The article referred to an appeal being lodged against the Judgment by the accused. It referred to the letter from Crown Law and said:
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.” (Emphasis in original)
[8] That paragraph appears to be a reference to an email from a Meredith Collins partner (Mr Burns), who is prosecuting the accused in the Urewera trial, which was sent to the High Court at some point after 11 December 2010. In that email the prosecutor referred to the Judgment having been published on the kiwisfirst website, said that it appeared to be in contravention of the suppression orders made, and asked that this be brought to the attention of the Judge. The email said:
I should note that now orders have been made for a judge-alone trial, the reason for suppression that applies to all judgments to date, namely to preserve fair trial rights by ensuring non-contamination of the jury pool, no longer exist. Under those circumstances, I intend to apply for orders rescinding the suppression orders in the New Year.
As to the publication of the fact that a judge alone trial has been ordered, I note that in addition to Mr Siemer‘s disclosure, it has been mentioned in a National Business Review article, now taken down, and on the Indymedia website, where the accused Ms Morse is quoted. It seems to me that the decisions as to mode and location of trial (as opposed to the reasons) cannot possibly prejudice the fair trial rights of the accused, and are a matter of genuine public interest. I raise these matters at this time to ensure that the Crown cannot be criticised for, on the one hand, raising the breach of the orders and on the other hand applying at some future time for those orders to be rescinded or varied, and to put all counsel on notice that they may wish to consider whether their clients require the existing orders to continue in their present form.
[9] On 21 December 2010 the Judge convened a telephone conference of counsel in the Urewera trial. The minute recorded the prosecutor‘s view that the Judgment could be edited to preserve the fair trial rights of the accused and that more limited suppression would be necessary only if the accused intended to appeal the ruling that the trial proceed before a Judge alone. It recorded the prosecutor‘s submission that:
The Crown submits that there is a genuine public interest in knowing the mode of trial and also in being able to consider the reasoning behind the decision to the greatest extent possible consistent with the preservation of the right of the accused to a fair trial.
[10] It also recorded the opposition from counsel for the accused to the suppression orders being made more limited. The Judge concluded that the prudent course was to suppress the content of the Judgment except that part of the Judgment which declared the result. She therefore said the suppression order was varied by adding the following words at the end of the first sentence – “provided that reporting is allowed of the outcome of the judgment as set out at paragraphs 78 & 79 of the judgment.” Paragraphs 78 and 79 of the Judgment contained the Judge‘s orders that the trial of three of the accused be severed from that of the other accused, that the trial of the remaining accused proceed before a Judge alone and that the application for severance by the other accused was declined.
[11] On 23 December 2010 the contempt application, dated 22 December 2010, was filed in the High Court. At this time the two articles (refer [5] and [7] above) remained on the website.
Contempt application
[12] The contempt application gave notice that the Solicitor-General sought a number of orders, including that Mr Seimer be held in contempt, that he be committed to prison for a fixed term not exceeding three months and that he be required to cease breaching the suppression order.
[13] The grounds stated in the application referred to the Judgment, the two articles on the website, the Crown Law letter of 17 December 2010, an affidavit from Ms Bridget Fenton (a solicitor employed by Crown Law) and said:
The applicant claims that the actions of the respondent in maintaining or publishing statements on websites in respect of which he is the editor, or over which he has control, constitute a deliberate, persistent, and unjustifiable disregard for the High Court‘s orders, and an assault on the authority of this Court. His actions thereby constitute a serious act of contempt of Court requiring a term of imprisonment not exceeding three months in the first instance.
[14] The affidavit from Ms Fenton referred to the Judgment, the two articles and the Crown Law letter and included the following further paragraphs:
Previous alleged breach and undertaking
11. I understand that Mr Siemer has previously been the subject of a contempt application for an alleged breach of a suppression order granted by Winkelmann J in pre-trial matters for the R v Bailey criminal proceedings. I attach marked “Exhibit H” a true copy of a judgment of His Honour Justice Lang, awarding indemnity costs against Mr Siemer in relation to those contempt proceedings.
12.At paragraph three of that judgment, the Court records a signed, written undertaking given by Mr Siemer that he would not breach the suppression order set out in a re-issued decision of Her Honour Winkelmann J, dated 7 October 2009.
13.The amount of the indemnity costs awarded against Mr Siemer was the subject of a further decision of His Honour Justice Lang, a true copy of which I attach marked “Exhibit I”.
14.I attach marked “Exhibit J” a true copy of a decision of the Court of Appeal in respect of that costs award. I understand that Mr Siemer has sought leave to appeal the Court of Appeal‘s decision.
[15] On 17 March 2011 an amended contempt application, dated 16 March 2011, was filed. The amended application referred to the variation made by the Judge on
21 December 2010. It also varied the original application by alleging that the
“respondent has failed to comply with Her Honour‘s order of 9 December 2010, both in its original form and as amended by the minute of 21 December 2010.” There is no objection from Mr Siemer to this amendment of the application.
[16] The alleged contempt is of the kind described in Siemer v Solicitor-General3 as involving “actions outside the court which tend to undermine the system for administration of justice.” The applicant relies on what it contends to be a deliberate breach of a court order as establishing the contempt.
Opposition to contempt application
[17] Mr Siemer accepts that he published the articles on his website. Assuming that the two articles remain on the website two days before the substantive hearing,
3 Solicitor-General v Siemer [2010] NZSC 54, [2010] 3 NZLR 767 at [5].
that fact will be admitted without further proof being required. Other than those matters, all other aspects of the contempt application are disputed.
[18] Without prejudice to that, Mr Siemer‘s counsel advises that it will be
submitted that:
(a) no prohibition on publication was in fact made, there being nothing in the Judgment which discusses the order or the reasons for it;
(b)if a prohibition on publication was in fact made then it was not lawful because of its breadth, that the Judge had not heard from the Crown or the accused on whether there should be suppression and to what extent, and that no reasons for suppression were given;
(c) if the prohibition on publication was a lawful order, for the reasons relied on in respect of the above two points it was not a reasonable restriction on freedom of expression demonstrably justified in a free and democratic society;4 and
(d)if it was a lawful order, the publications on the websites did not breach the order because they were publications in a “law report”, because the permitted publications were not said to be restricted to
“official law reports” or “authorised law reports”, Mr Siemer‘s websites are devoted entirely to law, and it is not a reasonable or necessary restraint on freedom of expression justified in a free and democratic society to restrict publication to commercial law reporting companies and particular internet providers.
[19] Mr Siemer also intends to submit that the contempt application is an abuse of process. The matters to be relied on here are also raised in support of one of the
interlocutory matters that is before me (refer [26] to [27] below).
4 Mr Siemer refers to s 5 of the New Zealand Bill of Rights Act and Duff v Communicado [1996]
2 NZLR 89 at 99 and 100.
Strike out for want of jurisdiction
[20] A strike out application was initially made on the basis that the contempt application was criminal in nature and that there was no civil jurisdiction to hear the application in its current form. This application relied on a misinterpretation of a Supreme Court decision5 which has been corrected by a more recent Supreme Court decision6 (both of which are referred to below – at [84] and [85]). That is accepted by the respondent and accordingly he does not pursue strike out on that basis.
[21] The strike out submissions also addressed other reasons why it is said that the contempt application cannot succeed. These are centred on arguments around the lawfulness of the suppression order in view of its breadth and the absence of reasons. Counsel advised at the hearing of the interlocutory applications that a strike out would not be pursued on these grounds but these matters would be in issue at the substantive hearing. I therefore need say nothing more about them.
The role of the Solicitor-General
[22] The respondent applied to strike out or stay the contempt application on the basis that the Solicitor-General ought not to be acting as counsel in the prosecution of the application or to have made the decision to bring the application.
Solicitor-General as counsel
[23] The respondent‘s objection to the Solicitor-General‘s role as counsel was in part based on the Solicitor-General‘s alleged actual or apparent lack of impartiality and independence. I understand the submission to have been that if the Solicitor- General is biased then that compromises the right to a fair trial. The respondent‘s other objection to the Solicitor-General acting as counsel was because the respondent considers that the Solicitor-General should give evidence at the substantive hearing
(an issue discussed below at [56] to [71]).
5 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767.
6 Siemer v Solicitor-General [2011] NZSC 32.
[24] The Solicitor-General is not intending to act as counsel. The applicant will be represented by Ms Laracy and Mr Robins. The respondent advises, through his counsel, that there is no objection to these counsel. Therefore the live issue is whether the Solicitor-General ought to have made the decision to bring the application.
Decision to bring contempt application
Submissions
[25] The respondent says that the Solicitor-General should not have brought the contempt application without first having taken independent advice or delegating the prosecution decision to a Deputy Solicitor-General. The respondent says that this is because the Solicitor-General was not, or would not be seen to have been, impartial. This is said to be an abuse of process in respect of which the Court should intervene pursuant to its inherent jurisdiction. The respondent is not seeking a permanent stay. Rather, the respondent submits that the Solicitor-General should be directed to refer the prosecution to an independent party to determine if the contempt application should be proceeded with. He submits that if the decision is to proceed then a new proceeding should be issued although documents filed in this proceeding could be relied on in the new proceeding.
[26] The alleged actual or apparent impartiality is said to arise in part from articles the respondent has published about the Solicitor-General on his website. Counsel for the respondent submits that a search of Mr Siemer‘s website reveals “what some might consider a very vigorous attack on the Solicitor for a number of years.” The alleged actual or apparent impartiality is also said to arise from proceedings the respondent has brought against the Solicitor-General in relation to a search and
seizure of Mr Siemer‘s property, pursuant to a search warrant, in February 2008.7
[27] The respondent submits that the Solicitor-General is attempting to silence him for political reasons. He says that the contempt application could be seen, in the
7 Siemer v Stiassny [2011] NZCA 1.
eyes of an independent observer, as exacting some form of revenge for the past attacks by the respondent on the Solicitor-General and his office in the articles set out above and as assisting the Solicitor-General in defending the case against him. The respondent submits that the Solicitor-General‘s lack of impartiality, arising from the personal animosity and the proceedings, is shown by:
(a) the selective nature of the contempt application (the respondent submits that Mr Burns‘ email shows knowledge of alleged breaches by other parties. He also refers to there being no contempt application brought against whoever supplied the Judgment to Mr Siemer);
(b)the view expressed by Mr Burns in his email that the publication could not possibly prejudice the fair trial rights of the accused and that the matters were of genuine public interest;
(c) that the letter from Crown Law referred to an intention to seek a term of imprisonment and to proceed regardless of whether the suppression order remains in force, that the application asserted that the contempt required a term of imprisonment not exceeding three months, and that the affidavit filed in support of the application contained irrelevant material about previous alleged conduct by Mr Siemer.
[28] The applicant submits that there is no evidence to substantiate a claim of bias or improper motive. It is said that Mr Siemer‘s articles might be viewed as illustrating personal animosity towards the Solicitor-General but there is nothing to suggest that this is reciprocated by the Solicitor-General. The applicant submits that as a matter of policy the Solicitor-General should not have to stand aside because of personal attacks levelled at him. The applicant submits that the respondent‘s proceeding against the Solicitor-General is not relevant because it has been struck out. The applicant submits that it has a strong case against the respondent (it is said to be so strong that it is inconceivable that a third party would have decided not to bring the contempt application).
[29] As to the matters said to illustrate the Solicitor-General‘s impartiality, the
applicant says:
(a) it is no defence to a charge of contempt that others are also guilty of contempt,8 that the Solicitor-General is entitled to bring contempt proceedings against one party even though others may also be guilty of contempt, and that the Solicitor-General knows of no other party whose conduct is in the same league as the respondent (who is said to be flagrantly breaching the Court‘s order in a way intended to mock
and subvert the Court‘s process);
(b)Mr Burns‘ view is just that, his view, and the contempt application is directed at interference with the administration of justice through an
“assault on the authority of this Court” (not interference with a trial);
and
(c) there was nothing improper in Crown Law‘s letter, the application nor the affidavit.
My assessment
[30] I start my assessment by saying that I accept the general points the applicant makes at [29] (a) to (c) above. That is to say, the Solicitor-General can be selective, if he wishes to be, in who he or she brings contempt applications against, it is not a defence that others may have also been guilty of contempt, Mr Burns‘ views are about interference with a fair trial whereas this application has been brought on a different basis, and the Solicitor-General was entitled to put the respondent on notice of his intentions and the penalty that would be sought. (I discuss what is properly included in the affidavit below).
[31] But those responses do not answer the respondent‘s concern that, because of
the articles he has written and the litigation he has brought, the Solicitor-General ought not to have made the decision to bring the contempt application. The matters
8 Solicitor-General v Wellington Newspapers Ltd [1995] 1 NZLR 45 at p 57.
raised by the respondent were not intended to show at this interlocutory stage that the Solicitor-General in fact acted with bad faith or with an ulterior motive, but only that there were grounds for raising a question about this. He says that it is enough to show that a fair minded lay observer would consider it a real possibility that the Solicitor-General had not acted impartially.
[32] Contempt proceedings of the kind at issue here are brought “by a law officer, usually the Solicitor-General”.9 The reason for this is due to the political affiliation of the position of Attorney-General.10 As the respondent submits, decisions to prosecute should be made impartially. In relation to criminal prosecutions this is set out in the Prosecution Guidelines (2010) which include the following provisions:
4.2 In practice in New Zealand the independence of the prosecutor refers to freedom from political or public pressure. All Government agencies should ensure wherever it is reasonably practicable to do so, that the initial prosecution decision is made by legal officers independently from other branches of the agency and acting in accordance with these Guidelines.
17.2.2 In prosecuting. Prosecutors represent the public and the public interest. Presenting the prosecution case requires professionalism, objectivity and detachment that is also cognisant of the reasonable needs of any victims of the crime.
17.2.3 The prosecutor must not display what could appear to be a personal interest in the outcome, and must act with regard to the overarching values of a fair trial.
[33] The respondent submits that the Solicitor-General‘s decision to initiate the contempt application may be a breach of the Prosecution Guidelines, and that, together with the application having been brought only against him and that imprisonment is sought, show an overzealous and inappropriate belief in the respondent‘s guilt. The respondent refers to the Prosecution Guidelines which say (at 19.3) that “counsel for the prosecution should not press for a particular term of imprisonment or any other sentence.”
[34] The respondent draws a comparison with a Judge recusing him or herself where there is actual or apparent bias. In that context, litigation against the Judge
9 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [6].
10 John McGrath QC “Principles for Sharing Law Officer Power: The Role of the New Zealand
Solicitor-General (1988) 18 NZULR 197 at 207-208 and 211.
can lead to recusal.11 Here the relevant litigation concerns the execution of a search warrant at the respondent‘s home. According to passages of an affidavit from Mr Siemer filed in that proceeding, the search warrant was directed at
“correspondence alleged to have occurred with the lawyers of the so-called
‗Terrorists‘“ in the Urewera trial.12 Mr Siemer alleges that the Solicitor-General wrongfully caused this search warrant to be executed and that this, amongst other things, gives rise to a claim of misfeasance against the Solicitor-General.
[35] Although that proceeding has been struck out,13 at the time Crown Law advised of its intention to bring contempt proceedings and at the time of commencing those proceedings, judgment by the Court of Appeal had not been delivered.14 Moreover, in upholding the High Court‘s decision, the Court of Appeal said this was “without prejudice to the Siemers‘ right to pursue their claims arising out of the search of their home in either the District or the High Court”.15 Therefore I accept the respondent‘s point that the litigation is not irrelevant to his submission that there is the appearance of impartiality.
[36] Personal animosity between a litigant and the Judge can also give rise to recusal. As was said in Locobail (UK) Ltd v Bayfield Properties Ltd16 “...a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case...”. An example of a case where personal animosity required recusal is R (Donoghue) v Cork County Justices17 where the uncontradicted evidence was that, shortly after the defendant‘s conviction before the Magistrate, the Magistrate had indicated enmity towards the defendant, and this was against a history of bad feeling between the
Judge and the defendant‘s family.
11 The respondent refers to R v Taito [2003] 3 NZLR 577 and R v Timoti CA 3/00, 30 March 2000 as examples.
12 Siemer v Stiassny [2011] NZCA 1 at [22].
13 The proceeding was struck out by the High Court and this was upheld by the Court of Appeal.
14 The appeal was heard on 27 October 2010 and the judgment was given on 3 February 2011.
15 Siemer v Stiassny [2011] NZCA 1 at [30]. According to Mr Siemer‘s counsel‘s instructions, an extant application is before the Supreme Court but he did not have details about this. In the absence of details it is difficult to give this point any weight.
16 [2000] QB 451 at [25]
17 [1910 2 I.R. 271] cited in Right Honourable Lord Woolf and others De Smith’s Judicial Review
(5th ed, Sweet & Maxwell, London, 2009) at [10-051].
[37] In this case there is no evidence to show that the Solicitor-General actually bears ill-will towards the respondent. However, as the respondent submits, the fact is that the respondent has subjected the Solicitor-General to severe criticism. I was shown three examples of articles on the respondent‘s website. In those articles, amongst other things, the Solicitor-General‘s office is described as a “cesspool of corruption”, the Solicitor-General‘s appointment is referred to as a “disaster...for the rule of law” and his actions in a proceeding are described as being “true to his incompetence”. One article has the heading “Madman at Crown Take Throne”. There is a drawing of the Solicitor-General dressed in a Nazi uniform giving what appears intended to be the sieg heil salute. The article refers to the Solicitor-General
“display[ing] a pattern of criminal behaviour over many years”.
[38] Looked at objectively it would be surprising if the Solicitor-General did not find the articles offensive at the least. The applicant submits that this cannot be enough. In the context of recusal of a judge it would enable a litigant to “judge shop”. The respondent submits that this concern is a hypothetical one and should not be given any weight when the fact is that the criticism of the Solicitor-General gives rise to real doubt as to his ability to act impartially in deciding whether to bring a contempt application.
[39] The point the applicant makes about “judge shopping” is discussed in Tridios Bank NV v Dobbs,18 where criticism of the judiciary or a particular judge was not sufficient grounds for recusal. There it was said:
...Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person—criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases...
[40] However, I do not need to consider whether a Judge ought to step aside if subjected to the sort of criticism the respondent has directed at the Solicitor-General
18 [2006] CP Rep 1 at [7].
here. That is because I consider that the analogy the respondent seeks to draw between when a Solicitor-General should step aside from a decision to prosecute and recusal by a Judge on the grounds of actual or apparent bias is not an appropriate one. The test for apparent bias gives effect to the principle that “justice should both be done and be seen to be done which reflects the fundamental importance of the
principle that the tribunal...be independent and impartial.”19 Where a prosecutor
decides to bring a prosecution, that principle is given full effect if the Court is independent or impartial and is seen to be such. Here, regardless of whether the prosecutorial discretion was exercised impartially, the Court will decide the case on the merits on the evidence before it.
[41] The respondent relies on the Court‘s inherent jurisdiction to intervene in proceedings which are an abuse of process. Where there is concern about the Solicitor-General‘s impartiality the respondent submits that the proper course is for the Court to permit the contempt application to proceed only if it is first referred to an independent person to decide whether a contempt application ought to have been brought.
[42] The respondent refers to what occurred in relation to a separate and unrelated contempt application. That matter concerned the actions of counsel, who published a report received in discovery in breach of a consent order made by the High Court in litigation in which that counsel was acting. There was related litigation in which the Solicitor-General was the subject of an application for review. As is recorded in a
judgment on an interlocutory matter,20 the then Solicitor-General considered it
appropriate to obtain independent legal advice before bringing the contempt application. That application was brought in the Solicitor-General‘s name but independent counsel was appointed to prosecute the application. An alternative option of referring the matter to the Attorney-General for decision as to whether a contempt application should be pursued had been explored without success.
[43] The applicant submits that this case involved different circumstances and does not set a precedent. I accept that there is no legal precedent (in the sense of a
19 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1
NZLR 35 at [3].
20 Moodie v Lithgow HC Wellington CIV-2006-485-1732, 21 August 2006.
Court determination on an issue which is now binding or entitled to weight in the determination in this case). The High Court was aware of the course being followed and saw merit in it but was not called upon to rule whether there would have been an abuse of process if the then Solicitor-General had not adopted the course he did.
[44] What occurred in that case does, however, provide an example of how a Solicitor-General might bring a contempt application in a situation where a conflict of interest arises. But that is not to say that the failure to follow such a course, where there is a real possibility that a prosecutor will not act impartially in deciding to bring a charge, is sufficient to establish an abuse of process.
[45] In criminal proceedings, prosecutors‘ conduct can give rise to an abuse of process for which a stay may be granted under the Court‘s inherent jurisdiction. But the threshold for the Court to intervene is a high one. As is said in Fox v Attorney- General21 it must be “so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court‘s integrity or offend the Court‘s sense of justice and propriety.” The high threshold reflects the principle that “constitutional restraint” is necessary in the supervision of prosecutorial decisions because the discretion to prosecute is part of the function of Executive Government rather than the Courts.22 The prosecution decision involves
“high content of judgment and discretion”.23 Issues of law and fact are able to be
“fully ventilated at trial with full opportunity to test the prosecution case and to adduce such evidence as the defendant sees fit”.24
[46] The Solicitor-General has a discretion as to whether to bring a contempt application. A contempt application can be brought even where other avenues are available for addressing the circumstances that have given rise to the alleged contempt.25 If the contempt is made out a term of imprisonment can be imposed if the Court considers that penalty appropriate in the circumstances of the case.
Because this form of contempt makes use of a summary form of procedure, as was
21 Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [37] applying Moevao v Department of
Labour [1980] 1 NZLR 464.
22 Fox v Attorney-General at [28] and [39].
23 Fox v Attorney-General at [31].
24 Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [68].
25 Siemer v Solicitor-General [2010] NZCA 549 at [24].
said in Solicitor-General v Radio Avon Ltd,26 “the courts have from time to time
emphasised the need for caution in its exercise”.27
[47] In light of these matters, the decision whether to bring a contempt application is similar to the criminal prosecutorial discretion. There is a high content of judgment and discretion involved and the issues of fact and law are able to be fully ventilated at the substantive hearing of the contempt application. Where there is concern that the prosecutor has acted with improper motives there are potential remedies. But these remedies depend on showing that the prosecutor acted with bad faith, not merely that there is real doubt about this (which is all that is advanced at this interlocutory stage). For example, it has been said that successful judicial review of decisions to prosecute will be “rare” but may be entertained if the prosecuting authority acted in “bad faith or brought the prosecution for collateral
purposes”.28 Similarly the tort of malicious prosecution requires, amongst other
things, that the defendant (prosecutor) had no reasonable and probable cause for bringing the proceeding and that he or she acted maliciously.29 The reason no reasonable and probable cause is a necessary element and malice alone is not sufficient is that “ill-intentioned people can bring good actions and actions which raise arguable issues”.30 I discuss below the possibility of a stay where a prosecutor has acted with improper motives ([59] to [70]).
[48] I have been referred to no authority where a Court will intervene to stop a prosecution (permanently or, as is suggested here, pending an independent review) where it is merely advanced that there are grounds for suspicion as to the prosecutor‘s ability to act impartially or a real risk of impartiality in making the
decision to prosecute. If the Court could intervene merely where there is doubt as to
26 Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 229.
27 The Court of Appeal cited a passage from McLeod v St Aubyn [1899] AC 549 at 561 which
described contempt as a process that “should be used only from a sense of duty and under pressure of public necessity”. It also cited R v Gray [1900] 2 QB 36 at 41 which referred to the jurisdiction as one to be exercised with “scrupulous care”.
28 Polynesian Spa Ltd v Osborne at [64]. In Kumar v Immigration Department [1978] 2 NZLR
553 (CA) at 558 the Court said that it would be appropriate to intervene where the power to prosecute under the immigration legislation was “exercised for collateral purposes, unrelated to the objectives of the statute or the prerogative in question”.
29 On malicious prosecution: Stephen Todd and others Law of Torts of New Zealand (5th ed, Thomson Reuters, Wellington, 2009) at [18.2.02], [18.2.05] and [18.2.06]; On the tort of abuse of process: Todd at [18.4].
30 Todd at [18.2.05(1)].
impartiality, then that would permit a level of oversight of the prosecutorial discretion which is inconsistent with the necessary restraint the Court is required to have in such matters.
[49] The respondent refers to cases where the Court has intervened to remove counsel from acting in proceedings.31 Those cases do not assist the respondent. Counsel‘s duties to the Court and to their clients raise different issues than the exercise of the prosecutorial discretion.
[50] I therefore consider that the respondent has not made out a basis on which this Court properly can intervene to direct the Solicitor-General to have the contempt application independently reviewed before continuing with it. It is a matter for the Solicitor-General.
[51] It is unnecessary for me to consider the applicant‘s submission that the application is so strong that it is unnecessary to have an independent party consider whether the application is appropriately brought. In any event, the respondent intends to raise a number of what might be called public law reasons as to why no contempt has been committed. At this interlocutory stage I have only a general outline of those matters from the respondent.
Subpoenas
[52] The respondent initially intended to subpoena witnesses for the interlocutory applications before me. This was not pursued, but the issue of whether these witnesses should give evidence at the substantive hearing remains a live one.
[53] The respondent considers that one of the relevant witnesses is Winkelmann J. The respondent initially sought a Court minute inviting Her Honour to give evidence. The respondent accepts that the Judge is not a compellable witness. The information the respondent was seeking from the Judge was as to how the
suppression came to be noted on the Judgment when it was not discussed in the
31 Reference is made to Attorney-General v Beggs CA 112/02, 21 August 2002, which in turn referred to Black v Taylor [1993] 3 NZLR 403.
Judgment. The applicant has obtained comment from the Judge‘s associate. It is presently in the form of a letter from Crown Law to counsel for the respondent and a copy of the letter has been forwarded to the Court.
[54] At the interlocutory hearing the respondent wished to know if the applicant was intending to put the letter before the Court by way of affidavit evidence. Counsel for the applicant advised that this was not intended as the applicant does not rely on anything in the letter to prove the alleged contempt. The applicant said that if the respondent wished to rely on anything in the letter they would consent to the letter being admitted as evidence of the truth of its contents. The respondent said that it was for the applicant to prove its case and that it did not intend to produce the letter in evidence.
[55] Access to information about how the suppression came to be noted on the Judgement was raised as a fair trial issue. I am uncertain whether the respondent still intends to raise this at the substantive hearing given that the letter contains the information that the respondent was seeking. That can be considered at the substantive hearing if it is advanced. At this interlocutory stage no order is sought from me in respect of evidence from the Judge or her associate.
[56] The respondent also considers that the Solicitor-General is a relevant witness. The respondent advised that what he needed to know was whether the applicant would call the Solicitor-General at the substantive hearing and if not whether the Court would require the Solicitor-General to be called or whether the applicant would seek to set aside a subpoena issued by the Court. The respondent wanted to have this issue addressed now rather than proceeding to have the subpoena issued and then facing an application to have it set aside.
[57] The applicant advised that it does not intend to call the Solicitor-General to give evidence and it would seek to set aside a subpoena if it were issued. The applicant says that the Solicitor-General has no relevant evidence to give. The respondent wishes to question the Solicitor-General as to the reasons for the prosecution. The respondent did not elaborate on how the Solicitor-General‘s motives would be relevant at the substantive hearing. I understand that this was
permitted in a previous contempt application: Solicitor-General v Siemer.32
However, what occurred there is not determinative of the matter.
[58] The issue is one of relevance. The view the Solicitor-General takes of the publications is a matter of submission not evidence. To the extent that the respondent seeks to establish that the contempt application was brought in bad faith or with ulterior motives, that is not relevant to a determination of the contempt application which would be considered on its merits. Collateral challenges, that is a challenge to the validity of a decision on which a conviction depends, are generally
permitted at the substantive hearing of a charge.33 But bad faith in the prosecutorial
decision, if established, would not provide a defence and differs from the situation where the validity of the decision is central to the charge that has been brought (as with, for example, the situation where a bylaw under which a prosecution is brought is invalid).34
[59] Nor would bad faith or ulterior motives alone, if it could be established, result in a stay of the application as an abuse of process. Fox v Attorney-General,35 recognises that bad faith or an improper motive on the part of the prosecutor can amount to an abuse of process. But it will only do so where it meets the high threshold referred to above (at [45]). That threshold would be met when the charges brought were clearly not justified and would not have been brought but for the bad faith or improper motive. Fox does not, however, discuss the situation where there is or may be an ulterior or improper motive but, irrespective of that, the bringing of
charges is appropriate and it is intended that they will be pursued.
[60] The issue of staying a criminal prosecution where it had been instituted and maintained for an improper purpose was considered by the High Court of Australia
32 Solicitor-General v Siemer HC Auckland CIV 2008-404-472, 8 July 2008 at [16].
33 Brady v Northland Regional Council [2008] NZAR 505 (HC); Harwood v Thames Coromandel
District Council [2008] NZAR 518 (HC).
34 Brady v Northland Regional Council at 511-512; Moevao v Department of Labour at 478.
35 Fox v Attorney-General at [45]. Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) held that a decision to prosecute was susceptible to review if it were established that the prosecuting
authority acted with bad faith or brought the prosecution for collateral purposes, but says it will only be in rare cases that such a challenge would be successful. Similarly, Greymouth Petroleum Ltd v Solicitor-General [2010] 2 NZLR 567 (HC) agrees with the discussion about the reviewability of prosecutorial decisions in Polynesian Spa but emphasises that it will only be a rare and exceptional case where such a review would succeed.
in Williams v Spautz36 (a decision cited in Fox in support of the high threshold required for a stay). In that case a university lecturer had been dismissed from his position and had commenced a wrongful dismissal claim. The lecturer also laid informations against university personnel alleging a number of offences. The Judge at first instance found that the informations had been laid with the predominant purpose of exerting pressure on the university to reinstate him or to agree to a favourable settlement of his wrongful dismissal claim.
[61] The Judge at first instance stayed the prosecutions. The Court of Appeal allowed an appeal holding that supervising courts should restrict the use of their power to control abuse of process in this context when it was the only way of ensuring an accused person is not deprived of a fair trial because of such abuse or in
cases which have no prospect of success.37 The reason for this is captured by
Meagher JA‘s comment that:38
In this matter I have read the judgment of Priestley JA. I agree with it. I do so with some reluctance, because it is hardly congenial to contemplate the Court having imperfect powers to deal with litigants whose sole occupation seems to be the manufacture of law suits. However, the only alternative is to embrace a theory that the Court may deprive a litigant of his right to press a cause of action, however legitimate, if he initiates it with unworthy or malevolent motives – a theory which is both socially dangerous and repugnant to legal principle.
[62] On appeal to the High Court it was held that the prosecutions were properly stayed. This was not because it disagreed with the above view expressed by Meagher JA. The High Court considered, however, the power to stay was not limited in the way the Court of Appeal had held. They considered it extended to a case where, although it was to be assumed that the informations disclosed a “prima facie” case, the party bringing the prosecutions had “no intention of prosecuting the proceedings to a conclusion because he or she wishes to use them only as a means of
extorting a pecuniary benefit from the defendant.”39
36 Williams v Spautz [1991-1992] 174 CLR 509.
37 Spautz v Gibbs (1990) 21 NSWLR 230.
38 At 287.
39 At 522.
[63] In reaching that view the High Court referred to Goldsmith v Sperrings Ltd,40 a decision of the English Court of Appeal which considered an application for a stay in the context of a defamation proceeding alleged to have been brought with a collateral purpose outside the legitimate scope of the legal process. The High Court cited the following passage from the judgment of Bridge LJ in that case:41
What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired byproduct of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it.” (Emphasis added)
[64] The High Court said that they too would doubt that the litigant could be debarred in that situation.
[65] Claims of abuse of process have also be made in civil proceedings. In Grimwade v State of Victoria42 the issue arose in the context of a plaintiff who had initially been convicted by a jury on a number of criminal charges. The convictions were quashed on appeal and no new trial was order. The plaintiff brought civil proceedings claiming, amongst other things, damages for abuse of process. The Supreme Court of Victoria considered on an interlocutory application whether the defendant could be liable to the plaintiff in any of the pleaded claims.
[66] The claim for abuse of process alleged that the criminal charges had been brought against the plaintiff with a predominant and improper purpose “of damaging the plaintiff‘s reputation or some other purpose other than furthering the legitimate interest of the State to bring a criminal justice”. The Court concluded that the claim did not adequately plead a cause of action in abuse of process. In reaching that view the Court commented:43
If criminal proceedings are commenced and continued upon an adequate foundation, it ought not in my opinion to matter that the duly appointed prosecutor by whom they were instituted had damage to the accused‘s reputation as his or her predominant purpose.
40 Goldsmith v Sperrings Ltd [1977] 2 All ER 566.
41 At 522, and at 39 of the original judgment.
42 Grimwade v State of Victoria (1997) 90 A Crim R 526.
43 at 538.
[67] The Court referred to the High Court‘s comment in Williams v Spautz doubting that a litigant who intended to pursue their claim could be debarred from bringing it because the litigant also had an ulterior purpose. The Court said44 “[t]he position in relation to a properly instituted and continued criminal trial must be even less susceptible of doubt.”
[68] A similar issue arose here in New Zealand in Cash for Scrap Ltd v Auckland Regional Council.45 In that case the plaintiff had brought a civil claim for damages. One of the claims was for abuse of process which related to enforcement proceedings which had been taken under the Resource Management Act against the plaintiff. It was alleged that the enforcement proceedings had been taken with an improper purpose of causing injury and economic loss to the plaintiff. The High Court referred to Grimwade and said:46
By parity of reasoning with Grimwade I would say that if an enforcement proceeding is commenced apparently for the purpose of preventing on-going adverse effects on the environment and the proceeding appears to be objectively justified, it is in the public interest that the proceeding is brought and prosecuted, and it should not matter that the local authority or its officers may have been actuated by some collateral purpose in bringing the proceeding even if that collateral purpose were predominant. As with Grimwade there is apparently no suggestion of coercion here and it is not pleaded that the plaintiffs were threatened with prosecution unless some demand of the prosecuting authority, extraneous to the purpose of the Act, were met.
[69] Finally, on this topic I refer to the comment in Ilic v The Calgary Sun47 that a
“desire for revenge may be present collaterally in many types of litigation but that
fact alone does not render the litigation abusive or preclude it from proceeding.”
[70] In this case there is no suggestion that the applicant does not intend to proceed to a substantive hearing. There is no suggestion that the applicant will not proceed if the respondent does not proceed with his litigation against the Solicitor- General or if the respondent removes from his website the articles that are critical of
the Solicitor-General and his office. Without intending to indicate any view on
44 at 539.
45 Cash for Scrap Ltd v Auckland Regional Council HC Auckland CIV 2006-404-004270,
9 October 2007.
46 At [123].
47 Ilic v The Calgary Sun [1998] AJ No 583 at [35].
whether the allegation of contempt will be established, it cannot be said at this stage that the application has no prospect of success. Therefore, this is not the kind of situation where a stay would be granted on the ground that the application had been brought with an ulterior and improper motive.
[71] For these reasons I consider that the applicant is correct in its decision not to call the Solicitor-General as a witness and would succeed in seeking to set aside a subpoena if one were issued. The Solicitor-General‘s motives are not relevant to whether there has been a contempt, which the Court will decide.
[72] The third person whom the respondent wishes to have called as a witness is Mr Burns. The respondent wishes to ask him about his comment in his email to the High Court in which he expressed the view that decisions as to mode and location of trial cannot possibly prejudice the fair trial rights of the accused and are a matter of genuine public interest. The respondent considers that this is relevant to whether the prosecution has been brought in bad faith.
[73] The applicant does not intend to call Mr Burns. The applicant is prepared to reconsider this if persuaded that it is in the interests of justice to do so. The applicant considers that Mr Burns‘ views about the suppression order as expressed in his email to the Court are irrelevant. The applicant is open to discussion with the respondent about whether some form of agreed fact might be submitted. The respondent considered that this “sounded promising”.
[74] I leave it to counsel to determine whether a statement of agreed facts can be submitted. At this stage all I am able to indicate is that evidence from Mr Burns intended only to establish that the Solicitor-General acted with an improper purpose in bringing the contempt application would not be relevant evidence at the substantive hearing on the contempt application (for the reasons discussed in relation to evidence from the Solicitor-General on this topic). That is not to say that Mr Burns does not have any relevant evidence to give in relation to any of the grounds of opposition relied upon by the respondent but at this stage that has not been identified for me.
Breach of the presumption of innocence
[75] The respondent contends that the actions of the Solicitor-General have breached the presumption of innocence and as such are an abuse of process. There are three parts to this submission. The first part alleges a failure by the Solicitor- General to review the appropriateness of the contempt application subsequent to the Supreme Court‘s decision in Siemer v Solicitor-General.48 The second part relates to the contempt application having set out that the maximum penalty was sought. The third part concerns the affidavit of Ms Fenton which refers to a previous alleged breach of a court suppression order.
[76] I am uncertain how it can be asserted that the contempt application has
“merely applied the old pre Siemer v Solicitor-General position, without seemingly any consideration of the Supreme Court‘s judgment.” That decision was given five months before the bringing of the contempt application and the maximum penalty of three months‘ imprisonment, which is referred to in the application, is consistent
with the Supreme Court‘s decision as to the maximum penalty for contempt.49 It
may be that the respondent intended to refer to the Supreme Court‘s later decisions in another proceeding in which leave to appeal and recall of its decision on the leave application were declined.50 However, the respondent does not identify how those decisions altered anything in its earlier judgment about the nature of a contempt proceeding in a manner which might have required the Solicitor-General to reassess the bringing of the contempt application here.
[77] I disagree that referring to the maximum penalty in the application amounts to a breach of the presumption of innocence and therefore an abuse of process. The presumption of innocence is an aspect of fair trial. It establishes that the burden of
proof of guilt in a criminal case is carried by the prosecution.51 That presumption
48 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767.
49 Siemer v Solicitor-General held that, because the ss 24 and 25 of the Bill of Rights Act applied to common law contempt proceedings for which a jury trial was not available, the power of a
New Zealand court to impose a sentence of imprisonment had been limited to no more than three
months (and/or a fine). The minority held that the summary procedure for all contempt of court proceedings was a justified limitation of the right to a jury trial. In the minority‘s view the Court‘s powers on sentencing were not restricted to a three month imprisonment term.
50 Siemer v Solicitor-General [2011] NZSC 4 and Siemer v Solicitor-General [2011] NZSC 32.
51 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [26] and [27].
remains unaffected by and regardless of a prosecutor‘s view of the seriousness of what is alleged. By including this in the application the respondent is on notice as to what will be sought and that it is in accordance with the Supreme Court‘s decision as to the maximum term that is available.
[78] It also alerts the Court as to the applicant‘s view of the contempt. There is nothing improper about that. On a daily basis parties seek orders they may not get and put forward views about matters which the Judge may consider are not made out on the evidence or are wrong in law. Regardless of the allegations made in the pleadings or the orders sought in those pleadings, it remains for the Court to consider the allegations made and the orders sought on the evidence presented and the relevant law. Here, it remains for the applicant to prove that there has been a contempt as alleged. If that is proven it is for the Court to decide if the contempt warrants a sentence of imprisonment and, if so, of what length (but not exceeding three months).
[79] The third matter raised by the respondent under this heading is the respondent‘s objection to paragraphs 11 to 14 of Ms Fenton‘s affidavit. Initially the objection was that the evidence purported to be propensity evidence which would require an application from the Crown. In a memorandum from counsel for the applicant dated 16 February 2011, the respondent was advised that the evidence in these paragraphs were not offered as propensity evidence. It was said that the evidence was relevant to penalty.
[80] In oral submissions the applicant submitted that the primary reason for the evidence was in relation to penalty. The applicant further submitted that the evidence was also relevant to whether the Court should be asked to exercise its contempt jurisdiction at all. In Solicitor-General v Radio Avon Ltd52 the Court of Appeal cited passages from Attorney-General v Times Newspapers Ltd referring, amongst other things, to a “technical contempt” which might be dismissed as “too venial to justify its being brought to the attention of the court at all.”53 Here,
however, a strike out application is not being made on this basis, and whether the
52 At 233.
53 Attorney-General v Times Newspapers Ltd [1974] AC 273 at 312.
contempt is of a kind that warrants a response from the Court can be addressed at the penalty stage if a contempt is made out.
[81] In written submissions the applicant repeated the submission that the
evidence is “offered as to penalty only”. It was submitted that:
The information concerning the respondent‘s previous engagements with the law of contempt are a matter of public record. The information could, without introduction into the “evidence”, be placed before the Court at the penalty stage of any hearing, if the matter gets that far. It is customary (but not necessary) for the applicant to include matters relevant (a) to the prima facie seriousness of the contempt and (b) to the penalty sought, in the material filed in support of the application. It is submitted this process is fairer to the respondent, as it provides notice as to what will be the submissions of counsel.
[82] If the evidence was being offered as relevant to penalty, then the respondent‘s objection to it was that this had no relevance at the substantive hearing on whether a contempt was made and it breached the presumption of innocence. I do not agree that the inclusion of this information breaches the presumption of innocence. As stated above, the presumption of innocence is an aspect of fair trial. In the substantive hearing the respondent will be presumed innocent unless and until the applicant proves otherwise. As the respondent accepts, Judges are able to make a distinction between evidence relevant to “liability” (ie in this context whether a contempt is proven) and evidence relevant to penalty.
[83] As to relevance, I agree with the respondent that evidence relevant to penalty is not relevant at the stage of considering whether a contempt has been committed. Moreover, as the applicant acknowledges, it is not strictly speaking evidence but reference to judgments which are a matter of record. In many cases a respondent may not have any concerns if material of this kind is included in affidavit evidence filed before a substantive hearing and may be pleased to have advance notice of it so that they know what the Solicitor-General‘s intentions are. In this case objection has been taken to it. It being irrelevant at this stage, and a matter of record in any event, I accept that it is appropriate to strike it out.
Mode of evidence
[84] The mode of evidence application came about initially because the respondent considered that evidence should be given viva voce whereas the Crown‘s position was that the evidence should be given by affidavit with a right of cross- examination. The respondent‘s position was that the proceeding was criminal in nature and for this position he relied on the Supreme Court‘s decision in Siemer v
Solicitor-General.54 The applicant‘s position was that the proceedings were civil in
nature but with some criminal safeguards attaching to them.
[85] However, in a more recent Supreme Court decision,55 which dismissed the respondent‘s recall application in respect of another matter, the Court said that its earlier decision “did not classify contempt proceedings as either criminal or civil but saw them as a unique summary process with protective features which the Court identified”.56 As a result of that decision, counsel for the respondent advises that he no longer objects to the Crown‘s evidence being given by way of affidavit. However he seeks an order that the deponents of the affidavits be required to read their affidavits in Court at the substantive hearing before the cross-examination
commences.
[86] By long standing custom, a contempt application is brought by originating application with supporting affidavits.57 This is confirmed by Rule 19.3 of the High Court Rules. It provides that Part 19 (which sets out the rules concerning originating applications) applies to “an originating proceeding for contempt of court”. It might be thought that this rule applied only to a proceeding that concerned “civil” contempt because the High Court Rules provide the rules that apply to civil proceedings.58
That was the view taken in respect of the predecessor rule which was in the same terms.59 This was not directly commented upon by the Supreme Court in their recent
decisions. Nevertheless, by viewing contempt applications as neither civil or
54 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [33] and [56].
55 Siemer v The Solicitor-General [2011] NZSC 32.
56 At [3].
57 Taylor Bros v Taylors Textile Services (Auckland) Ltd (1988) 1 PRNZ 495 (HC).
58 Section 51 of the Judicature Act 1908; and “proceeding” is defined in the High Court Rules as
meaning any “application to the court for the exercise of the civil jurisdiction”.
59 The High Court in Taylor Bros at 505 described a submission to this effect as “technically correct”.
criminal and rejecting a recall application which claimed that costs on a contempt application should have been dealt with under the Costs in Criminal Cases Act rather than the High Court Rules, it seems that the High Court Rules do apply (where relevant). In particular, it seems that r 19.3 is intended to cover all contempt applications which are brought under the common law.
[87] By r 19.10, evidence in support of the contempt application is by affidavit filed with the application and evidence in opposition is filed with the notice of opposition. However, this is subject to r 19.13 which permits evidence to be taken orally if the Court so directs. Rule 19.14 permits cross-examination but, as per rule
9.74, written notice must be given. Whether it is appropriate to make a direction under r 19.13 for oral evidence should be considered in light of the potential for penal consequences if a contempt is established.60
[88] The applicant advises that Ms Fenton‘s affidavit contains the evidence it relies on in support of its application. The applicant does not intend to call any other evidence. Counsel for the respondent advises that Ms Fenton will be required for cross-examination. He submits that Ms Fenton‘s affidavit evidence should be read orally in Court before she is cross-examined. He says that there is public interest in the matter and it is appropriate that the public hear the evidence that is relied on. This is opposed by the applicant as being unnecessary and therefore needlessly prolonging the proceeding.
[89] It is unclear what degree of public interest there will be in the hearing, but the principle of open justice may better be served if the affidavit is read in court (rather than for it being necessary for any interested party to seek access to the affidavit via other means). Evidence given in a criminal prosecution is ordinarily given orally and so reading the affidavit here would not be out of line with what happens there. As Ms Fenton‘s affidavit is brief and she will be required to attend the hearing for cross-examination, the reading of her affidavit would not prolong the hearing in any significant way. Given that this was the only basis on which objection was made to Ms Fenton‘s affidavit being read I consider the affidavit should be read before
counsel for the respondent begins his cross-examination. In directing this, I am not
60 See R v Pickering [2001] 2 NZLR 324 at [15] discussing a similar situation.
intending to suggest that affidavits filed in relation to contempt applications should always be read.
[90] It is accepted by the applicant that Mr Siemer does not need to file an affidavit and can elect to give evidence orally at the hearing.
Recusal
[91] At a case management conference in February 2011 counsel were invited to advise whether there was any reason why any Judge may be disqualified from the substantive hearing and whether the Judge who hears the pre-trial matters, should not be part of the Full Court for the substantive hearing. I record the responses to that invitation. However a recusal decision is for the individual Judge to make.
[92] Counsel for the respondent advised that in principle, and as matters presently stood, there was no objection to the Judge hearing the pre-trial applications (ie me) being part of the Full Court but that this was subject to anything that may arise in respect of those applications. He further advised that it is for a Judge to disclose any matter that may be relevant to recusal.
[93] In respect of matters currently known to the respondent he objects to Simon France and MacKenzie JJ. That was on the basis that those judges sat in the Court of Appeal on the case which concerned a costs order in respect of a different contempt application brought against the respondent.61 The respondent sought leave to appeal to the Supreme Court from the Court of Appeal‘s decision and that was declined. Counsel for respondent advised that the concern with Simon France and
Mackenzie JJ was that he had been instructed to seek recall of the judgment on the grounds that the case should have been treated as a criminal case not a civil one and that, in dismissing leave to appeal, the Supreme Court committed a breach of the presumption of innocence. It was submitted that these two issues (civil or criminal and the presumption are innocence) are raised in the interlocutory applications.
However the Supreme Court has since refused to recall the judgment, the
61 Siemer v Solicitor-General [2010] NZCA 549.
civil/criminal issue has been resolved and I am unclear whether there will be any live issue about the presumption of innocence at the substantive hearing.
[94] The applicant does not accept that the respondent has established any basis for Simon France or MacKenzie JJ not to sit. The applicant notes that Ms Fenton is the niece of Clifford J. The applicant otherwise has no objection to any Judge being part of the Full Court.
Conclusion
[95] The application for an order that the application be referred to an independent party for a decision on whether it should be continued is dismissed. As to the relevance of certain evidence, I rule that the Solicitor-General‘s motives in bringing the contempt application is not relevant evidence at the substantive hearing of the contempt application. Paragraphs 11 to 14 of Ms Fenton‘s affidavit are not relevant at the hearing on whether a contempt is established and are accordingly struck out for the purposes of that hearing. As to the mode of evidence at the hearing on whether the contempt is established, I direct that Ms Fenton is to read her affidavit aloud in the witness box before she is cross-examined. If the respondent elects to give evidence he may do so orally.
Mallon J
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