n a watershed but faintly reported freedom of press and expression case which was subject of a rare second hearing in the Supreme Court last month, Chief Justice Sian Elias took exception to Appellant Counsel’s reply to Justice John McGrath’s implication that administration of justice requires even unlawful orders must be obeyed until properly challenged.
The exchange started when top human rights and constitutional lawyer Tony Ellis asserted kiwisfirst’s publisher was being sentenced to prison “for criticising a judge. You can wrap it up however you like, but out there for the public, that is a reasonable proposition of how it will be seen”.
Justice McGrath replied to Mr Ellis; “Well I suggest the public would think he was being, had been convicted and punished effectively for disobeying an order of court. And that the reason for that is that effective administration of justice requires that orders of court are obeyed unless they are properly challenged within the means available in the judicial system, the system of justice.”
This apparently includes when no means are available. The High Court registrar had refused to accept for filing separate applications from publisher Vince Siemer and public watchdog Penny Bright to revoke the suppression order, claiming neither had standing in the proceeding to challenge the order.
Barrister Ellis was then interrupted by Elias CJ when he responded to McGrath J, “Well, that’s a traditional conservative viewpoint that’s highly, highly valid. But from -“.
The Chief Justice then rebuked Mr Ellis, calling his use of the word “conservative” “gratuitous”.
The Court of Appeal had earlier upheld Siemer’s 2011 High Court conviction and six week prison sentence for this website’s publishing of the secret December 2010 criminal judgment of Chief High Court Justice Helen Winkelmann which denied 18 defendants their statutory right to trial by jury in the Operation 8 prosecutions on grounds a jury would likely “apply illegitimate reasoning processes”.
In a judicial act prohibited by legislation, Winkelmann J ordered her ruling to disallow jury trial suppressed from the public. The Court of Appeal tried to retrofix this unlawful act by claiming an “inherent power” of the judiciary over statute to make orders deemed necessary to preserve fair trial rights. Whether judges truly have such inherent powers over the law is one ground upon which the Supreme Court has agreed to hear the matter.
High Court Justices Simon France and Alan MacKenzie had earlier declared at the contempt trial the suppression order was made to preserve fair trial rights even though Winkelmann J gave no reasons for ordering the suppression. One of the defendants provided evidence he considered kiwisfirst’s publication of the ruling increased prospects of a fair trial by instilling transparency into what had at the time largely been a secret three year prosecution. The Crown prosecutor conceded at trial no jeopardy to fair trial rights was alleged as a result of the kiwisfirst publication.
Within a week after Siemer’s sentencing in 2011, the Crown dropped charges against 14 of the 18 accused. All had initially been held without bail for a month.
Even when upholding conviction and sentence in 2012, the Court of Appeal inauspiciously omitted Winkelmann’s reasons for denying trial by jury when quoting the 10 December 2010 publication.
The generally hostile Court did seem receptive to Mr Ellis’ submission that the public interest was not being protected in this case because the Attorney General failed to challenge the unlawful order, arguing freedom of expression extended beyond a publisher’s right to publish and included the right of the public to receive such information.
The Court has reserved its decision but one has to wonder how much value will be put in the New Zealand Bill of Rights Act and New Zealand’s solemn obligations to the United Nations if the right to freedom of expression in New Zealand does not freely allow the use of the adjective “conservative” in the nation’s highest court.