Silence in the Court: Vince Seimer appeals contempt ruling in the Supreme Court:

On 19 July 2012 Vincent Ross Seimer was granted leave to appeal the finding of contempt of Court regarding publication of the decision of Judge Helen Winkelmann that the Urewera accused were to be denied the right to trial by jury, on Mr Seimer's website, Kiwisfirst.com.  

The approved ground to appeal was whether New Zealand courts have inherent power or jurisdiction to suppress judgments in criminal cases.

In the Supreme Court yesterday (15 November 2012), Siemer v Solicitor General SC 37 2012 (CA  417/2011  [2012] NZCA139) discussed the question of whether judges in New Zealand have inherent powers to suppress criminal court judgements - powers not provided in statute or the common law, and whether it was just to imprison a person who did not breach a lawful order.

The hearing challenged a Court of Appeal ruling (CA607/2011 [2012] NZCA 188) which declared NZ judges have this inherent power.  As it is, Judges in New Zealand enjoy immunity from public scrutiny or fiduciary accountability, and the rule of the validity of legitimate public interest has long been enshrined in law and upheld for centuries as the foundation of justice - justice must be seen to be done.  The Supreme Court appeal was heard before Elias CJ, McGrath, William Young, Chambers, Glazebrook JJ, who have reserved their decision (this post will be updated after the decision is received).

Publisher Vince Siemer was convicted and sentenced to six weeks in Mt Eden prison for publishing the December 2010 judgement of Judge Winkelmann in R v Bailey (Emily Bailey, Urewera trials) which denied 18 New Zealand citizens their statutory right to trial by jury, despite the fact that the evidence against the accused was illegally obtained, like a lot of Crown evidence put forward in New Zealand Courts recently - it's a disturbing trend, and one not to be encouraged.  Judge Winkelmann then suppressed her decision so nobody would know that she had denied the defendants their right to a jury trial.

The judgment was ordered suppressed from the public, and no reasons were given for the suppression by issuing Judge Helen Winkelmann.  The reasons given for denying the jury trial were (1) a jury would find it difficult to sit through the trial which was expected to be long, and (2) a jury would likely use "improper reasoning processes".  And nobody is allowed to know about this, apparently.  It has already been established that the evidence was illegally obtained, as it was in a number of other cases, including the much publicised Hollywood style raids on Kim Dotcom and the Switched On Gardener franchise, among others.

This bears remarkable - and chilling - similarity to the recent contempt heaped on the Court by ex "Dr" Brenda Sally Rimkeit, who successfully perverted the course of justice, and acted as Judge AND jury, by corruptly claiming that Katherine Raue was unfit to stand trial or represent herself (or even plead) on charges of Perverting the Course of Justice on the basis that: "Ms Raue is unfit to stand trial. She currently has a mental impairment which is Delusional Disorder. Ms Raue has stated on a number of occasions during this assessment period that she feels capable of representing and defending herself against the current charges. She has suggested that her main line of defence is that the charges are the result of corrupt acts by certain parties and that she will name these parties in Court. My concern is that if she proceeds to represent herself at Court she may, through her delusional belief system, falsely accuse certain parties of wrongdoing."  I most certainly did intend accusing the NZ police of wrongdoing - as I am ENTITLED to do under the law!  And I would most certainly have proved that was the case too, the evidence is elsewhere on this site.

Section 138 if the Criminal Justice Act 1985 was repealed on 5 March 2012.  At the time of Mr Seimer's alleged offence, this section stated:

"138:  Power to clear court and forbid report of proceedings:
(1)Subject to the provisions of subsections (2) and (3) 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 1 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), 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) 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)—
(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) 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), 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.
(7)Every person commits an offence and is liable on summary conviction to a fine not exceeding $1,000 who commits a breach of any order made under paragraph (a) or paragraph (b) of subsection (2) or evades or attempts to evade any such order.
(8)The breach of any order made under subsection (2)(c), or any evasion or attempted evasion of it, may be dealt with as contempt of court.
(9)Nothing in this section shall limit the powers of the court under sections 139 and 140 to prohibit the publication of any name.

It was questioned whether in fact section 138 even applied to judgements, and Ms Laracy, appearing for the Crown, accepted that the Court of Appeal would have probably overturned Judge Winkelmann's decision.  The difference between actual risk and hypothetical risk was discussed, as well as the questionable necessity of suppression given the existence of strict liability contempt.  The Criminal Procedure Act 2011 contains new provisions, the Criminal Justice Act and the Bail Act also contain relevant sections.

The question of whether the Court imposed the Order under inherent jurisdiction or under its powers under section 138 was discussed, and whether if Judge Winkelmann had no jurisdiction to make the Order there was no contempt.  The Solicitor General apparently decided that Judge Winkelmann didn't have the power to make the order, and struggled with seeing how fair trial rights were implicated by Judge Winkelmann's decision being in the public arena.

Powers must be exercised for a legitimate purpose.  It was put to the Court that the law requires the Judge to give a valid reason for suppression and not to exercise arbitrary excessive power.  The reason given was that Judge Winkelmann felt that the jury would not be able to come to grips with the complexities of the case apparently - and she obviously felt that the public of New Zealand were not sophisticated enough to hear about it either.  It stretches the bounds of credibility to suggest that the Judge was not influenced by political pressure that sought to keep the details of how the evidence against the accused was illegally obtained from public scrutiny - therefore jeopardising a fair trial.

Tony Ellis appeared for Mr Seimer, his summing up was brief.  He put it to the Court that there was no claim that the publication of the decision was a threat to justice and that the Order could not be justified as being in the interests of justice, that the Judge failed to give an adequate reason, that she exercised excessive arbitrary power, that it was against the fundamental rule of law that the Court be unaccountable, unappealable and the Judge above criticism while Vince Seimer goes to jail for reporting a trial that is in the public interest and in the interests of justice to be open and transparent.  He put it to the Court that there was no criminal or civil jurisdiction in fact, and that a person should be able to challenge an Order if it is unlawful.  He asserted that the Judge had no jurisdiction, either inherent or under section 138 (which applied at the time of the alleged offending), and that the law is "obscure, uncertain and unclear."

It's vitally important to democracy and fundamental to justice that Court hearings are open to public scrutiny and that Judges are transparent and accountable for their decisions.  We await the decision, and will update this post when it becomes available.  Another Siemer decision was referred to in a recent Judges "minute" I received from the Court - and more about the current practice of the Court in issuing these "minutes" instead of proper judgements at that link.