THE SOLICITOR-GENERAL OF NEW ZEALAND V SIEMER HC AK CIV 2009-404-006243 [2009] NZHC 1402 (9 October 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                               CIV 2009-404-006243


               IN THE MATTER OF           an interlocutory application for a
                                          mandatory
injunction relating to a
                                          suppression order made in criminal
                          
               proceedings R v Emily Felicity Bailey and
                                          Others, HC AK CRI 2007-085-007842
and
                                          others

               BETWEEN                    THE SOLICITOR-GENERAL OF NEW
   
                                      ZEALAND
                                          Applicant

               AND           
            VINCENT ROSS SIEMER
                                          Respondent


Hearing:       6 October 2009

Appearances:
M Laracy for applicant

Judgment:      9 October 2009 at 11.00 am


                        JUDGMENT OF WINKELMANN J


      This
judgment was delivered by me on 9 October 2009 at 11.00 am pursuant to
                           Rule 11.5 of the High Court Rules.




                              Registrar/ Deputy Registrar




Crown Law, Wellington

THE SOLICITOR-GENERAL OF NEW ZEALAND V SIEMER
HC AK CIV 2009-404-006243 9 October
2009

[1]    The Solicitor-General seeks an order directing the respondent Mr Siemer to
remove
from all websites over which he has any control any commentary or
description of the judgment I issued in the case of R v Bailey
and others, CRI 2007-
085-007842. In the Bailey proceedings most defendants are charged under s 45 of
the Arms Act, and some under
s 98A of the Crimes Act 1961 (participation in an
organised criminal group).


[2]    The judgment that is the subject of this application
determines some legal and
factual issues as a preliminary step in the determination of an application brought by
the Crown under
s 344A of the Crimes Act 1961. That application seeks orders that
certain categories of evidence are admissible in the forthcoming
criminal trial in that
proceeding.    Because of the complexity of the issues involved in the s 344A
application it was agreed between
all parties that it was appropriate that the
application should be dealt with in stages, with some initial factual and legal issues
being resolved in a preliminary judgment ("the preliminary judgment") following a
first hearing, whilst the ultimate issue of the
admissibility of the evidence was to be
determined in a second phase, following the release of the preliminary judgment and
after
a further hearing.


[3]    I issued the preliminary judgment on 8 September 2009. Following the issue
of the judgment and having
heard counsel I made an order recalling the judgment
because of a factual error contained within it, which potentially was of significance
to a portion of the factual and legal determinations in that judgment.


[4]    The application brought by the Solicitor-General
is in respect of the now
recalled preliminary judgment.     The Solicitor-General has produced by way of
affidavit (an affidavit
of Assistant Crown Counsel, Gregory Robins) a print out of
screens from two websites. One screen (the primary website) shows a heading
"High Court rules search warrants illegal in 2007 terrorist raids". If the reader of the
primary website clicks on that heading (or
hyperlink), they are taken through to a
much more detailed article which contains extensive discussion of and commentary
on aspects
of the preliminary judgment, and incorporates quotes from it. Mr Siemer

is listed as the editor of the primary website in at least
two articles on the site. I am
satisfied that he has editorial control of the site.


[5]     On 18 September 2009 the Solicitor-General
wrote to Mr Siemer noting that
publication of the article "deliberately breaches the Judge's suppression order" and
requiring him
to remove the article from the website. On 23 September 2009,
Mr Siemer responded to the Solicitor-General by letter. He said that he recognised
the existence of the suppression
order but continued:

        I consider that under these circumstances there is no lawful basis for the
        Judge to contravene
her very public duty to open and transparent justice in
        such a manner. This is particularly so given the very broad implication
on so
        many accuseds in this case, as well as the tremendous public importance and
        interest. Add to this the enormous
on-going financial cost of the Court
        proceedings themselves to the New Zealand taxpayers.

[6]     He continued that in his
view s 14 of the Bill of Rights Act 1990 permitted
him to share the information with the public.


[7]     The undated notice of
application in this proceeding was served on
Mr Siemer, but he was subsequently advised of the hearing date. He has filed a
notice
of opposition but did not appear at the hearing of the application. He explains
in the notice of opposition that he will be away
from New Zealand until 19 October
2009, and requests an adjournment of the hearing so that he can participate. He also
says that
an adjournment will enable the New Zealand Human Rights Commission to
make submissions as intervenor in the public interest. He has
made a request to the
Human Rights Commission in that regard.


[8]     As to formal grounds of opposition, Mr Siemer states that
s 14 of the New
Zealand Bill of Rights Act 1990 allows dissemination of this information in the
manner he has undertaken. The public
have a right to know the substance of public
Court judgments.      The only exception to this is if a Judge provides clear and
compelling
legal reasoning for discretionary suppression of public Court judgments,
which he says is not relevant in this application. He notes
that there is an absence of
reasons in the judgment to justify the imposition of the suppression orders. He said
that if the interests
of justice is effectively the reason for the Court keeping the

public ignorant, that ground has been erratically applied in this
case because there
has been the release of information during the early stages of the proceedings.


[9]     He argues the reason
for suppressing the judgment is to conceal the suspect
actions and poor judgment of Crown officials who "increasingly appear to have
misled the public, or minimally overreacted with massive dragnets, searches and
arrests".     In addition, Mr Siemer imputes improper
motives to the applicant in
bringing this proceeding. Mr Siemer says that there is however compelling reason to
allow publication
- the substantial and extremely broad public interest in this case. It
is argued that it is the cornerstone of a democratic system
of governance that the
public have an inherent right to know when a court finds that police and court
officers have acted unlawfully.
He says moreover that nothing he has published
would jeopardise a fair trial. The public release of factual Court judgments is
inherently
non-prejudicial.


[10]    I have no doubt that the publication by Mr Siemer is in breach of the existing
court orders.      Although
the judgment was recalled, the order in relation to
publication of that judgment remains. Mr Siemer does not challenge that he is
responsible for the publication, or that the publication breaches the terms of the
order. Rather his argument can be distilled to
the following:


        (a)      There is no jurisdiction for making the suppression orders.


        (b)      In any case, if
there is such jurisdiction, no proper reasons were given
                 or existed in this case for the suppression.


       
(c)      In any case, s 14 of the New Zealand Bill of Rights Act gives
                 Mr Siemer the right to publish the material
as he has.


[11]    The Court has an inherent jurisdiction to suppress publication of its
judgments whenever the Court considers
such a prohibition is necessary for the
proper administration of justice including preservation of the rights of the accused to
a fair trial. (Taylor v Attorney-General
 [1975] 2 NZLR 675, Paraha v Police  [2008]
NZAR 581).

[12]   As to Mr Siemer's reliance on the right to freedom of expression (s 14) and
the principles of open justice (reflected to
some extent in s 25 of the New Zealand
Bill of Rights Act), these are not absolute principles. They must be weighed along
with other
rights, including the right to a fair trial. As was said in Gisborne Herald
Co Ltd v Solicitor-General  [1995] 3 NZLR 563:

       [W]here 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.

[13]   Mr Siemer is correct that no reasons are given in the judgment for making the
suppression orders. Suppression
orders, and in this particular form, are made on a
daily basis in the Courts throughout New Zealand, in the context of the
determination
of pre-trial hearings, or in the determination of appeals where a retrial
is likely. They are made and are understood to be made,
on the basis that the
publication of the material in whole or in part prior to trial, has the potential to
prejudice the conduct
of a fair trial.


[14]   In this case there are very good reasons for making the suppression orders.
These matters are occurring
pre-trial.      The judgment may include reference to
evidence and submissions not ultimately presented at trial. Both the Crown
and
defence have an interest in ensuring that pre-trial publicity in relation to such
material does not put at risk the defendants'
right to a fair trial. In this particular
case the preliminary judgment does not determine the Crown's s 344A applications,
but rather
addresses only some of the issues that are ultimately required to be
determined along the way to a final disposition of that application.
In a situation
where the outcome of the application is uncertain, and many issues remain
unresolved, it is particularly difficult
to predict with any certainty what effect the
publication of the judgment, excerpts from it, or a commentary upon it will have
upon
the ultimate disposition of the criminal proceedings.


[15]   The order was then made with jurisdiction, and Mr Siemer must comply
with
it.

[16]   I considered Mr Siemer's request that this application be adjourned to enable
him to attend the hearing but I did
not grant the adjournment. Mr Siemer is in breach
of the existing suppression order. He is obliged to comply with that order whether
or
not I make the order sought by the Solicitor-General. Moreover there is some
urgency in the disposition of this application. For
the reasons discussed above it is
important that Mr Siemer's publication of the material be removed from the sites and
as soon as
possible.


[17]   I therefore make an order directing the respondent, Vince Ross Siemer, to
remove from all websites over which
he has any control, all extracts from,
commentary on and description of the judgment of this Court made on 8 September
2009. He has
48 hours from the communication to him of this order to bring himself
into compliance with it. Mr Siemer has asked that communication
with him occur
through his email address. I direct that service of the order on him be effected by
way of email. Service is deemed
to be effected 24 hours after the email is sent to
him.


[18]   For the avoidance of doubt, this order also applies to the recalled
and now re-
issued judgment.




                                                    Winkelmann J