Martin Luther King
With Auckland businessman Vince Seimer facing an indeterminate prison sentence for contempt of court, the question has to be asked whether contempt of court is becoming a convenient excuse for the Courts to ignore the provisions of the Bill of Rights.
Section 14 of the Bill of Rights Act says quite clearly that: Everyone has the right to freedom of expression, including freedom to seek, receive and impart information and opinions of any kind in any form.
Theoretically the Courts have an obligation to respect this right, although there are some legitimate limitations to protect citizens from defamation, a breach of privacy and offensive material.
And then there are the constraints attributable to court orders, many of them imposed to protect the right of a person to a fair hearing.
But therein, lies the rub.
Courts, when imposing court orders, surely have a responsibility to ensure there is justification for imposing court orders, rather than do so purely to censor information somebody wants suppressed.
The discretion of the Courts to suppression information by way of court orders then becomes a serious threat to the well-established legal right to impart information and opinions.
Breach of a court order is considered a contempt of court – a serious offence for which the penalties include imprisonment for an indeterminate period of time.
In recent years, the following have faced, or are due to face contempt of court proceedings:
- an MP – Dr Nick Smith for disclosing information on radio relating to a Family Court matter. Conviction could have cost him his political career.
- a lawyer – Dr Bob Moodie for disclosing the Butcher report in the Berryman case. Conviction suspended his right to practice for several months.
- a newspaper editor – Tim Pankhurst for coverage in the Dominion Post of the police terrorism raids
- an author – Anne Hunt for her coverage of the outcome of a sexual abuse case. Conviction could have cost her, her seat on the Horowhenua District Council.
- and of course a businessman – Vince Seimer for disclosing information on a web-site which is subject to an interim injunction in a defamation suit – yet to be heard.
In his New Zealand Civil Rights handbook, Tim McBride says that contempt of court is a potentially dangerous constraint on freedom of expression because it involves criminal proceedings that are unaccompanied by the ordinary safeguards of the criminal law.
Court orders can, in effect, sanction secret trials – the very antithesis of the transparency necessary to not only ensure that justice is done, it is seen to be done.
Not possible for secret trials to occur in a democratic country, you may presume.
Court documents prove otherwise.
Court orders in New Zealand can be potent enough to suppress the very existence of the proceedings, and that is the point at which, the right of the Courts to impose court orders must be curbed.
A person who appears in a courtroom which is closed to the public, has lost all rights to a fair and open hearing and is totally at the mercy of the Judge.
And Courts which exercise that right, should quite rightly be held in contempt!
The classic case which demonstrates how dangerous court orders is my own: A v A Hunt CIV-2003-485-2553. (Ironically, my name appeared on all court documents and was displayed outside the High Court in full view of the public, despite the name suppression order in force.)
On Friday 21 November 2003, Justice John Wild issued ex parte orders suppressing the existence of the proceedings.
These orders were not intended to be an interim measure.
Hugh Rennie QC had sought these orders to allow his client, the plaintiff, his day in court.
In other words, I as the defendant was denied the right to tell my husband that I would be travelling from my Foxton Beach home to Wellington because I had been summoned to appear in the Wellington High Court charged with contempt of court.
It would have been contempt of court for me to do so.
The Court had also deprived me of my right to access the documents used for my research and which had been returned to the owner.
For this reason I was not in a position to challenge allegations – and at this stage they were only allegations – that I had breached a court order, and therefore had no option but to recall all copies of my book at that stage on sale in bookshops. Library copies were also returned to await the outcome of the civil claim for contempt of court.
The onus was now upon the plaintiff to prove the contempt of court, but in the meantime the book had effectively been banned.
After two hearings in closed Chambers, I came to the conclusion that I had no hope of a fair hearing unless I succeeded in getting the order suppressing the existence of the proceedings uplifted.
After nine months, Justice Forrie Miller – the fourth judge I had encountered – conceded this order was extraordinary and removed it.
Nevertheless all ten interlocutory hearings continued be heard in closed chambers, and all documents remained confidential to the parties.
Justice Ron Young presided over the remaining interlocutory hearings; hearings which lacked transparency, and hence fairness.
After a three-day hearing before Justice Wild in Wellington, I was found to be in contempt of court, fined and ordered to pay damages, court costs and disbursements to the plaintiff.
Justice Wild issued instructions for all copies of my book to be destroyed, and the order suppressing the title of my book was to remain in place.
This meant that, in effect, anybody could be charged with contempt of court, merely for mentioning the title of the book.
Such is the impact of court orders!
A stay of execution was required to prevent the destruction of my books, as I had filed an appeal on the grounds that Justice Wild had set aside all evidence relating to Dr David Collins QC (now the Solicitor-General) because I chose not to call him as a witness.
The Court of Appeal quashed all High Court orders, after reaching the view that Justice Wild had ‘inadvertently’ erred in his interpretation of the hearsay rule.
Only now can I disclose the documents which confirm that I had indeed been confronted with the prospect of a secret trial to ban Broken Silence, pressure which took a significant toll on my own health and that of my husband.
He suffered a fatal heart attack and died four months after urging me to settle because he had said he could not bear to live without me. A few days later, he apologised, stating that the principles we were fighting for were too important to be sacrificed.
Tragically we had sensed that this litigation would ultimately be the death of one of us.
Although the Court of Appeal has now exonerated me, I now have nothing but contempt for court.
As the author of The Foxton Murder, and having covered the murder trial following the death of Dr Howard Teppett and rape of his sister, I had always encouraged people to respect the integrity of the Courts. Only now, having experienced first-hand the intimidation that occurs in courtrooms without the safeguard of transparency, I have come to the belief that the Courts are no longer worthy of my respect.
Indeed I cannot rest whilst other law-abiding citizens are treated with contempt by the very Courts which have an obligation to respect the right to seek, receive and impart information and opinions of any kind in any form.
As I understand it, Michael Stiassny has yet to prove that the information subject to an interim injunction is defamatory, and until he has done so, the Solicitor-General must be cautious about resorting to contempt of court proceedings.
The Court of Appeal conceded that Dr David Collins QC undoubtedly made quite extensive notations on my manuscript, and that these notations confirm that he had viewed the page relevant to my own contempt of court proceedings.
Amongst other documents disclosed as evidence was the note I had taken of his phone call to me on Monday 18 June 2001, and which confirms that, disclosed to me during the course of this conversation was information subject to a suppression order.
It is not generally known that my books were recalled twice. On the first occasion it was to delete a surname covered by a name suppression order. As this surname had appeared on every document relating to this case I had seen (and I had viewed a considerable number of Court of Appeal documents referring to this associated case), I was appalled to discover that the Court of Appeal had ‘inadvertently’ released this name and yet I could still be charged with contempt if I did not agree to recall my books at considerable expense and delete this name from every book.
If disclosures by the Courts and also the lawyer who is now the Solicitor-General can inadvertently place members of the public in contempt of court, then the Courts themselves need to review their own procedures to ensure that all those associated with the legal profession meet the same standards demanded of citizens who are not as conversant with the law as they are.
Until they do so, the Courts warrant my contempt for their double standards and complete disregard for the Bill of Rights, they are required by law to uphold.
Contempt of court is, as I can now confirm, a potentially dangerous constraint on freedom of expression and the time has come to curb the autocratic power Judges wield when issuing court orders.
Judges have already proved that they are prepared to sanction secret trials for no other reason than to allow the plaintiff his day in court.
When Judges are also prepared to issue court orders to censor information which embarrasses influential people or organisations, the Courts have deprived law-abiding citizens of the very rights the Bill of Rights was enacted to uphold.
The precedents are in place, and warrant our contempt.
Anne Hunt
20 June 2008.
