Silence Of The Lambs
First they came for the trade unionists…
I, Vince Siemer, am going to prison tomorrow after the Supreme Court upheld the Court of Appeal ruling which in turn upheld two judges of the High Court decreeing I am in contempt of the Courts. I consider I can show no better respect for the rule of law than contempt for judges who pervert it. My ‘crime’ is publishing the secret December 2010 judgment of Justice Helen Winkelmann which denied the Urewera 18 defendants their statutory right to trial by jury on the basis a jury “would likely use improper reasoning processes”. The Chief Justice strongly dissented, recognising I disobeyed an unlawful order yet was denied the lawful right to challenge it in order to preserve my liberty.
I am believed to be the first person in the free world to be sentenced to prison for reporting a criminal court judgment. (Who says New Zealand does not lead the world?!) One reason I am the first is secret criminal court judgments are unlawful. In my case, the Courts roundly protected the unlawfulness of Winkelmann’s order by asserting they need not determine the lawfulness on the ground even unlawful orders need to be obeyed until overturned – the Crown claiming a message needed to be sent to the larger community of this. Interestingly, I invited the Attorney General to make submissions in the public interest regarding the lawfulness of Winkelmann’s orders and he responded that, if he made submissions at all, he would seek an increased order of costs against me.
Where Winkelmann’s order gave no reasons for the secrecy, the High Court Judges tripped over each other to retrofit the reason that justice required the secrecy. The Crown conceded at my trial no prejudice or harm was alleged as a result of my publication, but they still wanted me imprisoned. In a page out of a George Orwell novel, the Court of Appeal censored Winkelmann’s reason for negating the statutory right of trial when upholding my conviction out of fear the public would not take kindly to being called stupid in a secret judgment.
First they steal the words; stealing the meanings only when required.
New Zealand judges are out of control. We no longer have the instilling discipline of the Privy Council in England. The NZ Court of Appeal judges trounced by the Privy Council as law-breakers in Taito v R now comprise the Supreme Court which replaced the Privy Council.
Do you see any mainstream media reporting any of this?
We get what we deserve with our judges. The incestuous nature of judicial appointments being what it is, every judge in New Zealand signed on to submissions to Parliament opposing the passage of the pecuniary interest of judges bill currently before Parliament. Really? Not one judge in the whole of New Zealand not actively opposed to this bill which requires them to register their financial and business interests? While it seems impossible at times to get more than two Members of Parliament to completely agree, our 205 judges are in lock step with their independent view. It is evident ‘independent judge’ is an oxymoron in New Zealand.
We have forfeited much with the loss of the independent Privy Council. This should come as no surprise. Former Attorney General Margaret Wilson was undeterred when 82 percent of Auckland law practitioners voted against her new Supreme Court. When everyone’s back was turned it still happened. We built a $100 million palace for five elevated judges, most of whom were known to engage in breaches of due process. And, like sheep, this 82% fell into the fold even as this new court made mince out of established principles on judicial bias and essential legal rights, rolling over established legislation with all the finesse of a blitzkrieg. It is the law today that the “New Zealand independent and informed observer” is an endangered species and, where it does exist, does not consider a judge has a conflict of interest where he/she is business adversary or sibling to those who appear before him/her. You now have to be rich to get to a hearing in the courts – the Supreme Court ruling the requirement that plaintiffs pay the defendants’ anticipated legal costs into the Court as a condition to obtaining a hearing is “well-settled law” in New Zealand. Two years ago, in Att y General v Chapman, the Supreme Court ruled judges are exempt from the New Zealand Bill of Rights Act 1990 on the ground this statute that expressly bound them threatens their ‘independence’ we all know so well.
Maybe the diminishing numbers allowed to be heard in the courtrooms no longer care. But we could possibly survive without the legal necessity of independent judges if these judges had any respect for the rule of law and the courts they serve. But they have no respect for laws where their mates and critics are concerned, and the most powerful sheep lawyers in New Zealand, while silent about it publicly, make no secret about it privately. As retired Judge Sir Edward Thomas said in a 2007 email to the president of the New Zealand Bar, “I am not a keeper of the court’s conscience and am of the view that my primary obligation is to Alan, not just as a matter of professional obligation but by virtue of my deep friendship for him. There is a limit to how far I will go to uphold the integrity of the court if the judges themselves won’t.”
Where is the ‘independent bar’ on this? Flocking behind the independent judges, either cowering in fear or cloaked in protective partisanship. This silent flock is hoping the perverse court judgments in my cases do not generally denigrate the rule of law in New Zealand. History finds this the safest place for lawyers to be. Look at Fiji.
Those who see little comparison with Fiji fail to realise that Fijians do not feel oppressed. That is the insidious thing with erosion of the rule of law. It is frighteningly uneventful until the tipping point. In the Earthquake Commission contempt the Solicitor General filed against Marc Krieger this week, it was not the Bill of Rights or due process legislation which even featured in the SG’s application. The SG largely relies upon three of my court decisions to eventually bankrupt this poor citizen who had the audacity to expose the EQC’s attempt to write off $100 million which evaporated from the public coffers.
Anyone who doesn’t believe a “deep friendship for Alan” is a more valuable commodity in a New Zealand Court than truth and law chooses to ignore the reality. For whistleblowers, one obvious problem is they do not have deep friendships with the perpetrators whose power and influence is the currency of the New Zealand courts. Partisanship and secrecy is endemic, and it is laying ruin to the rule of law in black robe and white collar New Zealand. It would be better if it was blood in the streets, if only to wake people up to the huge corruption occuring behind closed court doors. No one should need to go to prison to protect the rule of law but the sad reality is sitting in prison is often the best way to stand up for legal rights. While it is unfortunate this price must be paid, I consider my imprisonment a demonstration of my highest respect for the law.