Tuesday, July 16, 2013

Common law contempt by disobedience of an order for temporary suppression of a judgment

A non-publication order was issued by the High Court in respect of a pre-trial judgment on evidential issues. The order was made to protect the fairness of the forthcoming trial(s). A person, not involved in the proceedings but knowing of the order, published the judgment.

The person became an enthusiastic litigant, and it must be recognised that a result of this enthusiasm has been extensive judicial examination of the law of contempt.

I have mentioned here on 11 May 2012 the Court of Appeal decision in this litigation. But the Supreme Court had also looked at this litigant's efforts before, as I discussed here on 20 May 2010. So the finale last week from the Supreme Court is a monument to doggedness: Siemer v Solicitor-General [2013] NZSC 68.

At first glance you could hardly get a more obvious example of contempt of court. But the main issue was whether the court had an inherent power to suppress publication of a judgment. Another issue was who has standing at common law to apply for variation or rescission of a suppression order?

I only give a broad indication of what was decided here, in the interests of brevity. As always, the law is in the case, not in what I say.

Fair trial rights were held to dominate freedom of expression, so that if publication would compromise a fair trial, publication would have to yield [158] per McGrath, William Young and Glazebrook JJ, with Elias CJ concurring on this point at [19]. So yes, there is a common law power to suppress a judgment temporarily to protect fair trial rights [168]-[175]. Elias CJ dissented, holding that this power had been removed by statute [38]-[46], [86].

But at the post-publication stage it is too late for an alleged contemnor to protest that the court should not have made the order, except in limited circumstances. It is possible that an alleged contemnor may challenge, in the contempt proceedings, the court's jurisdiction to make the order [222], although whether it is a defence to an allegation of contempt that the court had no jurisdiction to make the order has been left undecided [footnote 283]. The majority recognised that there might be some exceptions in relation to third parties who have not had an opportunity to challenge an order or its terms, or who have taken available steps but not been heard, if obedience to the order would result in "irretrievable loss" of an important right [224]-[226].

The steps that are available to a third party who might wish to challenge a suppression order or its terms were specified and areas of uncertainty discussed at [181]-[187]. The majority noted that the effect on the common law of the position of the media under the Criminal Procedure Act 2011, ss 198, 200, 283 remains to be worked out in future cases [187].

Elias CJ would have allowed a third party to challenge the legality of an order in proceedings to commit him for contempt for disobeying it, unless such a challenge would be an abuse of process [8]-[9], [56], [61]-[85]. She would have allowed the appeal.

So, by a majority the appeal was dismissed and the appellant was ordered to report and commence serving his sentence of six weeks' imprisonment.

This is one of those cases where the law was (if the lack of unanimity in the Supreme Court is any indication) unclear at the time the alleged contempt was committed, and retrospective clarification is for the benefit of everyone except this appellant. However the Court can't just say, "Well fair enough Mr Siemer, you had a good crack at it and your case helped us clarify the law a wee bit, so don't bother with the imprisonment." As the majority said at [191]:

"Provided the court had power to make an order of its kind, a court order is binding and conclusive unless and until it is set aside on appeal or for other reason lawfully quashed. Collateral attacks on such orders are not permitted. Neither the parties, nor other persons subject to an order, are permitted to arrange their affairs in accordance with their perceptions of its flaws, including any individual views they may have concerning the validity of the order. The position is the same whether the order has been made in the High Court or in the District Court.[Footnote: 'Slater v R [2011] NZCA 568 at [17]. Mr Slater was not a party to the proceedings in which the order he breached was made.']"

And added [208]:

" ... The constitutional position with court orders is different from that of a collateral challenge to an executive or administrative action, and a different approach is required. The common law rule against collateral challenge to court orders is itself premised on the centrality of the rule of law. ... The special need in our society for compliance with judicial orders is the constitutional reason for treating disobedience of court orders differently from conduct in breach of subordinate legislation or administrative directive. No such rule of law concerns are raised when a defendant, charged in a criminal court with breach of the directions of an executive government agency, raises their unlawfulness, and resulting invalidity, as a defence. The defendant, of course, in such a case takes the risk of incurring a criminal conviction and punishment if his or her expectation of illegality proves to be wrong. Disobeying the government's administrative directions in this way does not impede the exercise of its functions. But if disobedience of court orders in that way were to be tolerated, the Court's authority and ability to discharge its functions would become seriously impaired. For that reason, the common law of contempt by disobedience of a court order rests on the existence of an order that was made with legal authority, and was thus lawful, as we have held in the present case. It does not matter whether or not the order should have been made at all or made in those terms... .]" [footnotes omitted]