Rule of law threat to be determined

In the Supreme Court tomorrow, Siemer v Solicitor General will determine the legal question of whether judges in New Zealand have inherent powers to suppress criminal court judgments – powers not provided in statute or the common law.

The hearing challenges a Court of Appeal ruling (CA607/2011 [2012] NZCA 188) which declared NZ judges have this power.

Publisher of this site Vince Siemer was convicted and sentenced to six weeks prison for publishing the December 2010 judgment in R v Bailey which denied 18 New Zealand citizens their statutory right to trial by jury.  The judgment was ordered suppressed from the public.  No reasons were given for the suppression by issuing Judge Helen Winkelmann.  The reasons given for denying jury 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”.

One week after sentencing on 2 September 2011, Crown charges against 14 of the 18 defendants were dropped after nearly a four year prosecution where all the defendants were initially held without bail.

The Criminal Procedures Act bars judges from suppressing criminal court judgments, a legal fact dismissed by the Courts in Siemer’s prosecution on the ground all court orders must be obeyed until overturned.  The Crown never alleged prejudice resulting from the publication; the only evidence coming from one of the accused Jamie Lockett who stated he considered publication of the judgment on increased his prospects for a fair trial by instilling transparency into a prosecution which had been veiled in secrecy.

If the contempt conviction and sentence are upheld, New Zealand will be the first law-based democracy to sentence someone for publishing a criminal court judgment.  Iran and Vietnam provide the only cases currently before the court of imprisonment.

The Supreme Court will likely issue a reserved ruling early in the new year.