Despite recent ultra-conservative judicial appointments, the Supreme Court yesterday granted leave to appeal against a Court of Appeal ruling which declared NZ judges have “inherent power” to convict and imprison for breaching court secrecy orders irrespective of legislative constraints.
New Zealand Courts had previously claimed inherent jurisdiction to imprison for contempt of orders deemed necessary to protect its processes and “fair trial rights”. Last year, however, Justices Simon France and Alan MacKenzie ruled that a deliberate breach of judge-ordered suppression of a criminal court judgment which was “binding on the world” was sufficient to imprison kiwisfirst publisher Vince Siemer for six weeks.
Secrecy over court business had become so commonplace through recent years that cover letter suppression decrees routinely took the place of actual orders, including the suppression case which the Supreme Court has now agreed to hear.
The Criminal Procedures Act expressly does not allow judges to suppress criminal court judgments but the trial judges ruled it was not relevant to conviction and sentence whether the judge had jurisdiction to suppress the judgment. Nor did it matter to the judges whether any harm had been caused by the publication. At trial, the Solicitor General conceded no prejudice had resulted from kiwisfirst’s publication of the December 2010 Judgment of High Court Justice Helen Winkelmann which denied the (at the time) 18 Urewera defendants their statutory right to trial by jury on grounds a jury would likely use “improper reasoning processes” and the trial was likely to be long. In contrast, Siemer produced evidence from one of the accused stating he considered publication of the judgment created the transparency necessary to ensure he received a fair trial.
Two days after Siemer’s sentencing the NZ Supreme Court overturned Judge Winkelmann and granted the 18 accused a jury trial. Within a month, the Crown dropped charges against 14 of the accused.
In granting the appeal which will likely be heard in November, the Supreme Court refused another ground, stating, “It is also unarguable that the absence of prosecutorial guidelines renders contempt proceedings unlawful” – a judicial fiat which effectively rejects statutory constraints on judicial powers provided by the Crimes Act 1961.
If the Supreme Court upholds the Court of Appeal judgment which relied on a 1975 New Zealand Court of Appeal decision (Taylor v Atty General) in claiming judicial powers over statutory limitations, New Zealand will be the first country in the free and democratic world to imprison anyone for publishing a criminal court judgment.