THE SOLICITOR-GENERAL OF NEW ZEALAND V SIEMER HC WN CIV-2010-404-8559

THE SOLICITOR-GENERAL OF NEW ZEALAND V SIEMER HC WN CIV-2010-404-8559 2 September 2011IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2010-404-8559BETWEEN THE SOLICITOR-GENERAL OF NEWZEALANDApplicantAND VINCENT ROSS SIEMERRespondentCourt: MacKenzie JSimon France JCounsel: M F Laracy and G J Robins for ApplicantT Ellis and G K Edgeler for RespondentJudgment: 2 September 2011ORAL JUDGMENT OF THE COURT DELIVERED BY MACKENZIE J[1] We are required to deal with a request which has been made by Mr Ellis on Mr Siemer's behalf that we recuse ourselves from further involvement in the proceeding.[2] Mr Siemer had earlier objected to our hearing the substantive proceeding and we dealt with that application for recusal at that stage. The present application is based on directions give in our minute of 19 August 2011 to the effect that Mr Siermer's attendance in person was required for sentencing.[3] By way of some background there had been exchanges between counsel and the registry concerning the date of hearing of these present matters and a request by Mr Siemer for a video link to be arranged so that he could attend the hearing by video link. It had earlier been determined, essentially by agreement between the parties, that the present hearing would cover both the application for arrest of judgment and/or dismissal for abuse of process (which counsel for Mr Siemer had filed on 22 July 2011) and also the question of penalty. That is to say both of thosematters are to be dealt with, and it was common ground that both matters are to be dealt with at this hearing.[4] Following Mr Siemer's request to attend by video link we issued a minutedated 19 August 2011. That minute was brief. It confirmed the hearing date for today, and it also noted that Mr Siemer's attendance in person is required forsentencing. We made that observation so that Mr Siemer would be clear as to theCourt's position as to the ordinary requirement that, on sentencing, the person to be sentenced should be present.[5] Mr Ellis in a subsequent memorandum submitted that we should recuse ourselves. He noted that the Court had previously directed that Mr Siemer'sapplication for arrest of judgment/dismissal for abuse of process be heard on the same day as sentencing but he said that, however, if Mr Siemer is successful on his application for arrest of judgment, or his application to have the application dismissed for abuse of process, then there will be no sentencing. He further submits that the judgment clearly indicates that the Bench has already decided, without waiting to hear the oral argument it had set down, that Mr Siemer's applications willbe denied. Alternatively that conclusion would undoubtedly be arrived at by a well informed independent observer.[6] We have considered the point, both on the written submissions which were made and the submissions which Mr Ellis has made this morning. Those have not altered the view that we had formed and we have not found it necessary to hear from counsel for the Solicitor-General.[7] There is no substance in the point. As counsel notes the applications and the sentencing have been set down for hearing at the same time. Sentencing is accordingly a possible, but not inevitable, outcome of the hearing. As we explained in our later minute, which we issued on 30 August 2011, the intent of our earlier minute was to make clear to Mr Siemer the legal obligation resting upon him, in the absence of any direction to the contrary, to attend. In giving that indication we had formed no view on the merit of Mr Siemer's application. We do not consider that awell informed independent observer would reach the conclusion that we had done so.[8] We accordingly decline to recuse ourselves."A D MacKenzie J" "Simon France J"Solicitors: Crown Law Office, Wellington for ApplicantT Ellis, Barrister, Wellington, for Respondent.