LOSS OF HONOUR
Posted On: Wednesday, 8 April 2009
LOSS OF HONOUR
11 April 2009 (4 minute read)
In the wake of World War II, American Justice Robert Jackson famously reflected
"It is not the function of Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error." This was not considered a revelation so much as a reminder. For example, origins of English law enshrined in the Magna Carta long ago recognised the King's Judges could not be counted upon to be impartial when interests of the Crown conflicted with those of the citizenry. The enduring wisdom of this principle is reflected in the right to trial by jury (article 29) being embraced by almost all law-respecting democracies 800 years on. The protection that no man shall be stripped of his property or liberty without judgment of his peers is generally regarded as the Magna Carta's single most enduring value.
Over 100 years ago, this seminal right in law was reinforced by the New Zealand Parliament with the passage of the
Judicature Act 1908. Section 19(a) of this Act allowed parties to elect a trial by jury in civil proceedings unless the matter was determined to "mainly" involve difficult questions of law or required prolonged inspection of documents relating to difficult technical, professional or scientific questions. This is the law which stands in New Zealand today, although recent rulings coming from the Supreme Court raise questions whether this right is being eroded by precedent.
Parliament has not revoked or restricted the right to jury trial afforded by the Judicature Act 1908. Nevertheless, no trial by jury has been allowed by the New Zealand Courts in a civil matter in more than 5 years. At least three appeals against orders for a judge-alone trial have gone to the New Zealand Supreme Court in the last two years. In each case, the lower courts and Court of Appeal ruled the judges exercised proper
discretion to deny jury trials. One is currently before the highest Court
(Siemer v Solicitor General). Two others were rejected by the Supreme Court without a hearing, including
Gregory v Gollan and the Attorney General SC4/2009  NZSC 29 on 30 March 2009.
Gregory v Gollan is a 4 year old case against the Crown over an alleged Police assault of an innocent man after Police entered his home without a warrant, pepper-sprayed him, wrestled him to the ground and arrested him. Associate High Court
Judge Jeremy Doogue claimed that the law and facts were so intertwined that it would be difficult for a New Zealand Jury to separate out the factual determination it would be called upon to make at any trial. On this basis, the Judge denied a jury trial. The Associate Judge then indicated in passing that the case appeared somewhat innocently a matter of mistaken identity by the Police.
On Gregory's appeal to the Highest Court - and last resort - the Supreme Court bench of
Wilson JJ declared
"(trial by jury) is now covered by New Zealand legislation which makes it clear that proceedings are to be tried by judge alone unless the Court exercises its discretion to order trial by jury."
Not exactly. The relevant law blithely referred to by the Court actually states,
"If the debt or damages or the value of the chattels claimed in any civil proceedings to which this section applies exceeds $3,000, either party may have the civil proceedings tried before a Judge and a jury on giving notice to the Court and to the other party, within the time and in the manner prescribed by the High Court Rules, that he
requires the civil proceedings to be tried before a jury."  This seems more straight-forward than most laws: "either party" can "require" the "civil" proceeding be "tried before a jury". Yet the Supreme Court decreed the only way trial by jury can now occur is if "the Court" excercises its "discretion" to "order" trial by jury.
In one fell swoop, it would seem the Supreme Court has replaced - with judicial fiat - the law of the land as it concerns trial by jury. The Attorney General defendant wanted a Judge alone trial - and the Attorney General just so happens to appoint the Judges. While the law clearly stated Gregory was entitled to require a jury trial, the New Zealand Supreme Court stated the Court not only has the discretion to negate the law of the land, the law of the land is not enforced unless the Court "exercises its discretion to order" the law. In short, the law itself hinges entirely on judicial whim.
Though this recent judgment was an eye-opener, it would seem the contravention of statute by the Court was fomenting before this recent Supreme Court repudiation. A year earlier, the Supreme Court formally relegated the statutory right to trial by jury behind the Court's discretionary right to deny it. In
Siemer v Fardell SC93/2007  NZSC 9the Supreme Court decreed,
"There has been an entirely orthodox exercise of judicial discretion by the High Court" in refusing to allow a trial by jury. This is a case where Mr & Mrs Siemer were suing the estate of their former lawyer Robert Fardell QC for breach of fiduciary duty. The case was for monetary damages only. Neither party proposed the matter involved mainly difficult questions of law or prolonged inspection of documents. As with the Gregory case, the relevant law before the Court was section 19 of the
Judicature Act 1908. The High Court skirted this law. On appeal, the Court of Appeal claimed the matter was too scientifically technical for a jury - as it simultaneously claimed the scientific issues were not noteworthy because they were available and understandable to anyone searching the internet.
Despite this obvious contradiction, the New Zealand Supreme Court was undeterred. In refusing to hear the appeal, the Supreme Court ruled
"The legal principles are well settled, including the rejection of the House of Lords of the proposition that the decision on the mode of trial should be influenced by one party's belief that Judges as a class are likely to biased against that party or in favour of the other party." Mr Siemer's formal application to the Supreme Court did not support the Supreme Court's view that this was the thrust of his appeal, although it did mention the original trial
judge Hugh Williams was forced to recuse himself when four witnesses came forward to state the Judge's summary in an interlocutory hearing was in material contradiction to the actual event.
application for leave now before the Supreme Court (again by Siemer) raises broader legal questions as to whether a trial by jury can be denied a defendant when the penalty is obviously criminal; in a prosecution initiated by Crown officers. It concerns a six month prison sentence imposed upon Mr Siemer by a full bench of the High Court, where the Court had rejected Mr Siemer's application for a jury trial on the basis the Solicitor General had filed his prosecution as a civil proceeding. At the time of the Court imposed sentence, Mr Siemer was under a three year-old interim injunction preventing him from publishing information relating to Auckland insolvency practitioner Michael Stiasny's temporary receivership of his company in 2001. The High Court initially claimed that section 19 allowed it discretion to deny jury trial where judge alone was a more convenient mode of trial. Midway through the trial, the Court ruled section 24(e) of the New Zealand Bill of Rights Act 1990 - upon which Mr Siemer's application was based - was also not engaged because the matter was civil rather than criminal (note: the Court had earlier refused to consider the application for jury trial under the Bill of Rights, sec.24(e) as a preliminary matter).
While section 24(e) does not make a distinction between civil and criminal in affording the right to trial by jury to anyone facing more than a 3 month prison sentence, the Judges focused on the phrase "charged with an offence". They ruled this phrase in the Bill of Rights Act meant this legal protection was exclusive to criminal proceedings.
In March, the
Court of Appeal Judgment agreed with the High Court, although they changed the sentencing order to allow Mr Siemer to free himself if he took down from the internet publications which those judges say violated the injunction. In December 2008, that injunction was made permanent by High Court Judge Mark Cooper in a Judgment which included a record $980,000 defamation damage award, after the Court struck out Mr Siemer's statement of defence and debarred him from defending himself. This action by the Court has seemed only to make Mr Siemer more determined to fight for his right for a jury trial. His appeal to the Supreme Court claims phrases cited by the Judges as violating the injunction were long ago removed or do not breach the injunction which was limited to Stiassny's role in the receivership and documents obtained through discovery. He openly taunted the Judges to charge him with perjury (a criminal charge which assures him a jury) if they were inclined to suggest his affidavit claim to this effect was inaccurate.
Though the earlier Supreme Court precedent
Mafart v Television New Zealand Limited  3 NZLR 18 seems to agree with Mr Siemer's grounds that it is the substance of the proceedings rather than the form it takes which defines whether a proceeding is civil or criminal, the Court of Appeal flatly rejected this argument even though the
Amicus Curiae Dr Rodney Harrision gave force to this legal position. The Bench relied instead upon antiquated common law remedies which the Crown voiced the New Zealand Courts have reliably used in cases of civil contempt. The Bench reinforced this with its own revisionist interpretation that what was indeed sought was very different from what the Solicitor General's application asked for
AND what the Full Bench of the High Court had actually granted. Boldly, the Court of Appeal pointedly changed the prison sentence to support its own interpretation.
In the New Zealand legal system, it is generally regarded more important to follow the judges than follow the law. To not do so is extremely dangerous when many of the judges in this land of 4 million people belong to the same clubs and share the same beach houses. In New Zealand, Lawyers can actually get disbarred for criticising NZ Judges. It is easier to understand early that integrity is an easier compromise for aspiring lawyers than their tertiary education.
As Mr Siemer seems determined to push this matter to breaking point, it will be interesting to see how the Supreme Court handles this appeal, particularly on the heels of the
Gregory verdict. #
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 Judicature Act 1908, sec 19A (2)