SIEMER v NEW ZEALAND POLICE [2019] NZCA 574

SIEMER v NEW ZEALAND POLICE [2019] NZCA 574 [20 November 2019]NOTE: SUPPRESSION ORDER IN [2016] NZLCDT 34 REMAINS INFORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA323/2019[2019] NZCA 574BETWEEN VINCENT ROSS SIEMERAppellantAND NEW ZEALAND POLICERespondentCourt: Stevens, Ellis and Peters JJCounsel: Appellant in personK S Grau for RespondentJudgment:(On the papers)20 November 2019 at 3 pmJUDGMENT OF THE COURTA The application for leave to bring a second appeal is granted on thefollowing approved questions:(a) In the exercise of its statutory power to place restrictions onpublication pursuant to s 240 of the Lawyers and Conveyancers Act2006 (the Act), is the New Zealand Lawyers and ConveyancersDisciplinary Tribunal (the Tribunal) required in its decisionexpressly to record that it is making an order or orders under s 240of the Act?(b) In light of the answer to question (a), did the High Court err in[2019] NZHC 1346 at [27] in finding that "the Tribunal's decisionis sufficient to evidence the making of an order under s 240" in thecircumstances of this case?(c) In the light of the answers to the above questions, canthe conviction of the appellant stand on the charge of contraveningan order made by the Tribunal under s 240 of the Act, contrary tos 263 of the Act?B In all other respects the application for leave to bring a second appeal isdeclined.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] The appellant, Mr Siemer, was convicted, following a Judge alone trial inthe District Court, of an offence against s 263 of the Lawyers and Conveyancers Act2006 (the Act) of breaching a name suppression order made by the New ZealandLawyers and Conveyancers Disciplinary Tribunal (the Tribunal) under s 240 of theAct.1[2] Mr Siemer appealed against the conviction to the High Court. The appeal wasdismissed by Edwards J.2[3] Mr Siemer has applied for leave to bring a second appeal, challenging severalof the grounds upon which Edwards J dismissed his first appeal. Section 237(2) ofthe Criminal Procedure Act 2011 proscribes a grant of leave for a second appeal,unless the court is satisfied the appeal involves a matter of general or publicimportance or a miscarriage of justice may have occurred or may occur unlessthe appeal is heard. The decision of this Court in McAllister v R confirms the test is ahigh one.31 Police v Siemer [2018] NZDC 24353.2 Siemer v Police [2019] NZHC 1346.3 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.Proposed grounds of appeal[4] The application for leave filed by Mr Siemer stated that the following groundsof appeal are to be advanced:1. The Conviction improperly ignored the ground of appeal that noevidence was produced which identified [person] was the subject ofany suppression order, and this absence of evidence is a completedefence to the Conviction finding that the proposed appellantcriminally breached an order of suppression naming [person].2. Where a Bill of Rights freedom of expression defence is acomprehensive defence to the charge, the Conviction at [32]mischaracterised as a "rejection" of this defence what is self-evidentlyonly a "recognition" that s 14 New Zealand Bill of Rights Act 1990was raised in defence but never addressed on any level bythe trial judge AND this mischaracterisation was compounded bythe Appellate judge also not addressing this valid defence.3. Where each of the following three elements is a legal test which mustbe met to limit freedom of expression the interference to the humanright guaranteed by s 14 of the New Zealand Bill of Rights Act 1990which resulted in Conviction met none, as the interference was not:a. prescribed by law, or with any degree of legal certaintyb. aimed at protecting "national security; territorial integrity;public safety; prevention of disorder or crime; protection ofhealth; morals; reputation or rights of others; preventing thedisclosure of information received in confidence; andmaintaining the authority and impartiality of the judiciary"— as it must be.c. necessary in a democratic society,And no NZ court or tribunal has considered any of these testswere met in this case.4. That at least two non parties and unrelated internet publishers havebeen criminally convicted and had their convictions upheld by at leastfour New Zealand judges on as many occasions for publishingunquestionably truthful articles about an unnamed lawyer foundguilty of cheating his clients — on the proposition a NZ lay tribunalhas power to make "implied" orders criminally enforceable againstthe world at large to suppress his name "without particularcharacteristics before these implied orders can be regarded aseffective" — demonstrates a profound level of general publicimportance which supports the granting of leave in this appeal.Particularly if that unnamed lawyer is [person] (as the Courts haveconcluded without evidence) because [person] is the author of currentNew Zealand legislation.5. General public importance is further accentuated by the failure of anycourt to address the competing and prevailing human right to freedomof expression in circumstances where the lay tribunal's intent toconceal its actions and hold the world criminally liable for notsimilarly doing so meets none of the exceptional circumstancesnecessary for curtailing this human right in a democratic societyfounded upon the rule of law.(Footnotes omitted.)[5] The respondent opposed the granting of leave to bring a second appeal on thebasis that the above grounds of appeal raised no issue of general or public importance.The respondent submitted this application for leave was merely an attempt byMr Siemer to mount a second challenge to findings of fact by the District Court.In particular, it was open to the Judges in the courts below to find the Tribunal madea valid order which bound Mr Siemer, who nevertheless published the suppressedname in the full knowledge of the existence of the order.[6] The respondent also submitted the New Zealand Bill of Rights Act 1990 didnot provide Mr Siemer with a defence to a charge as this matter had already beensettled by the Supreme Court,4 and in this case, where the Tribunal had undertaken thenecessary weighing of interests.[7] In summary, the respondent submitted all matters sought to be raised byMr Siemer in his notice of appeal were considered and properly dealt with both inthe District Court and the High Court. Moreover, no error warranting a second appealhas occurred.Decision on leave[8] We agree with the respondent's submissions in respect of all grounds of appealsought to be raised by Mr Siemer except the ground which seeks to challenge thenature of the decision of the Tribunal on the non-publication of the practitioner's nameand the formal requirements for the making of a non-publication order under s 240 ofthe Act. In relation to all other matters sought to be raised, the high threshold for leaverequired by McAllister v R has not been met.4 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.[9] On the question of whether the decision of the Tribunal expressly made anorder under s 240 of the Act we are satisfied that the proposed appeal raises issueswhich are of sufficient general or public importance to warrant a second appeal.[10] In this regard we have carried out a preliminary search of some of thedeterminations of the Tribunal dealing with decisions concerning non publicationorders under s 240 of the Act. It seems that the practice of how the decision makingis carried out varies.Result[11] Accordingly, the application for leave to bring a second appeal is granted onlyinsofar as it raises the following approved questions:(a) In the exercise of its statutory power to place restrictions on publicationpursuant to s 240 of the Act, is the Tribunal required in its decisionexpressly to record that it is making an order or orders under s 240 ofthe Act?(b) In light of the answer to question (a), did the High Court err in [2019]NZHC 1346 at [27] in finding that "the Tribunal's decision is sufficientto evidence the making of an order under s 240" in the circumstances ofthis case?(c) In the light of the answers to the above questions, can the conviction ofthe appellant stand on the charge of contravening an order made bythe Tribunal under s 240 of the Act, contrary to s 263 of the Act?[12] In all other respects the application for leave to bring a second appeal isdeclined.Solicitors:Crown Law Office, Wellington for Respondent