Solictor-General v Siemer HC Wellington CIV-2010-404-8559

[2011] NZHC 1095

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

Court:MacKenzie J Simon France J

Counsel:         M F Laracy and G J Robins for Applicant

T Ellis and G K Edgeler for Respondent

Judgment:      2 September 2011

ORAL JUDGMENT OF THE COURT DELIVERED BY MACKENZIE J

[1]      We are required to deal with a request which has been made by Mr Ellis on Mr Siemer’s  behalf  that  we  recuse  ourselves  from  further  involvement  in  the proceeding.

[2]      Mr Siemer had earlier objected to our hearing the substantive proceeding and we dealt with that application for recusal at that stage.  The present application is based  on  directions  give  in  our  minute  of  19 August 2011  to  the  effect  that Mr Siermer’s attendance in person was required for sentencing.

[3]      By way of some background there had been exchanges between counsel and the registry concerning the date of hearing of these present matters and a request by Mr Siemer for a video link to be arranged so that he could attend the hearing by video link.   It had earlier been determined, essentially by agreement between the parties, that the present hearing would cover both the application for arrest of judgment and/or dismissal for abuse of process (which counsel for Mr Siemer had

filed on 22 July 2011) and also the question of penalty.  That is to say both of those

THE SOLICITOR-GENERAL OF NEW ZEALAND V SIEMER HC WN CIV-2010-404-8559 2 September

2011

matters are to be dealt with, and it was common ground that both matters are to be dealt with at this hearing.

[4]      Following Mr Siemer’s request to attend by video link we issued a minute dated 19 August 2011.   That minute was brief.   It confirmed the hearing date for today,  and  it  also  noted  that  Mr Siemer’s  attendance  in  person  is  required  for sentencing.  We made that observation so that Mr Siemer would be clear as to the Court’s position as to the ordinary requirement that, on sentencing, the person to be sentenced should be present.

[5]      Mr Ellis  in  a  subsequent  memorandum  submitted  that  we  should  recuse ourselves.    He  noted  that  the  Court  had  previously  directed  that  Mr Siemer’s application for arrest of judgment/dismissal for abuse of process be heard on the same day as sentencing but he said that, however, if Mr Siemer is successful on his application  for  arrest  of  judgment,  or  his  application  to  have  the  application dismissed for abuse of process, then there will be no sentencing.  He further submits that the judgment clearly indicates that the Bench has  already decided, without waiting to hear the oral argument it had set down, that Mr Siemer’s applications will be denied.  Alternatively that conclusion would undoubtedly be arrived at by a well informed independent observer.

[6]      We have considered the point, both on the written submissions which were made and the submissions which Mr Ellis has made this morning.  Those have not altered the view that we had formed and we have not found it necessary to hear from counsel for the Solicitor-General.

[7]      There is no substance in the point.  As counsel notes the applications and the sentencing have been set down for hearing at the same time.   Sentencing is accordingly a possible, but not inevitable, outcome of the hearing.  As we explained in our later minute, which we issued on 30 August 2011, the intent of our earlier minute was to make clear to Mr Siemer the legal obligation resting upon him, in the absence of any direction to the contrary, to attend.  In giving that indication we had formed no view on the merit of Mr Siemer’s application.  We do not consider that a well informed independent observer would reach the conclusion that we had done so.

[8]      We accordingly decline to recuse ourselves.

“A D MacKenzie J”  “Simon France J”

Solicitors:           Crown Law Office, Wellington for Applicant

T Ellis, Barrister, Wellington, for Respondent.