VINCENT ROSS SIEMER v NEW ZEALAND POLICE [2020] NZCA 178

VINCENT ROSS SIEMER v NEW ZEALAND POLICE [2020] NZCA 178 [21 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA323/2019[2020] NZCA 178BETWEEN VINCENT ROSS SIEMERAppellantAND NEW ZEALAND POLICERespondentHearing: 27 February 2020Court: Miller, Dobson and Moore JJCounsel: C S Henry for AppellantJEL Carruthers for RespondentM J Hodge and K J Eskildsen for New Zealand Law Society asIntervenerJudgment: 21 May 2020 at 2.30 pmJUDGMENT OF THE COURTA The questions of law set out at [2] are answered at [33] of this judgment.B Mr Siemer's conviction is set aside.C We remit the question of name suppression for Mr Wells' client to theLawyers and Conveyancers Disciplinary Tribunal for furtherconsideration.D We make an interim order suppressing the name of Mr Wells' client.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] This is a second appeal, brought by leave of this Court. It arises fromMr Siemer's conviction for breaching a suppression order made by the Lawyers andConveyancers Disciplinary Tribunal. He published in a blog post the name of apractitioner, Neil Wells, whom the Tribunal had censured while recording that"we consider" the circumstances "justify the permanent name suppression" ofMr Wells and his former client.1[2] Leave has been granted on the following questions:2(a) In the exercise of its statutory power to place restrictions on publicationpursuant to s 240 of the Lawyers and Conveyancers Act 2006 (the Act),is the Tribunal required in its decision expressly to record that it ismaking an order or orders under s 240 of 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 decision is sufficientto evidence the making of an order under s 240" in the circumstancesof this 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 by theTribunal under s 240 of the Act, contrary to s 263 of the Act?[3] It will be seen that the Court confined the grant of leave to specific questionsof form and process. We make this point because it is evident from papers filed byMr Siemer before us (unilaterally, although he is represented by counsel) that hecontinues to dispute factual findings made against him. He followed the disciplinaryproceeding closely, and the courts below found that he understood a suppression orderhad been made.3 As we explained at the hearing, the grant of leave does not allow himto contest that finding.1 Waikato Bay of Plenty Standards Committee No. 2 v M [2016] NZLCDT 34 [Tribunal decision] at[28].2 Siemer v Police [2019] NZCA 574 at [11].3 Police v Siemer [2018] NZDC 24353 [District Court decision] at [13] and [21(b)]; and Siemer vPolice [2019] NZHC 1346 [High Court decision] at [42]–[44].Background[4] The relevant facts are few. On 24 November 2016, the Tribunal issued awritten penalty decision against Mr Wells,4 who had enjoyed interim namesuppression throughout the proceedings to that date.5 (Mr Wells has since died andthe grounds for suppression no longer apply to him. We do not suppress his name inconnection with this judgment.)[5] One of the questions before the Tribunal was whether it should orderpermanent name suppression. When the penalty hearing on 8 November 2016 endedthe Chair, Judge Clarkson, stated orally what orders the Tribunal "will be" imposingor making.6 The last was that "name suppression will be granted".[6] The written decision of 24 November was headed "Reasons of the Tribunal forDecision on Penalty".7 However, it was not said to record reasons for decisions madeat the hearing. Rather, it was expressed as the Tribunal's decision and reasons.For example, the Tribunal stated that it would impose a fine and censure and went onto specify what the practitioner must pay and to record that "in addition to the otherconsequences set out in this decision, we must formally censure you, and now do so".8[7] We set out in full the Tribunal's discussion of name suppression:9[22] The reasons for interim name suppression are set out in our interimdecision of 25 July 2016.[23] The Standards Committee submit that the public interest in opennessof the disciplinary process demands that the practitioner's name be published.[24] We accept that an adverse finding means that the threshold forsuppression is higher than at an interim stage.[25] Mr Davey accepted the decisions of H and ABC. Both allowedpermanent suppression in cases where the practitioners had serious healthconcerns. In the latter case the likely detriment to the practitioner's mentalhealth had been certified by a psychiatrist. Mr Davey submits that, in the4 Tribunal decision, above n 1.5 Waikato Bay of Plenty Standards Committee No. 2 v W [2016] NZLCDT 19 [Interim suppressiondecision].6 Waikato Bay of Plenty Standards Committee No. 2 v M LCDT Auckland LCDT 007/16,8 November 2016 [Penalty hearing].7 Tribunal decision, above n 1.8 At [34].9 Citations omitted. Emphasis added.absence of a certificate from a psychiatrist, the Tribunal ought not to besatisfied in this regard. In the H matter both psychological and physical healthproblems were involved and the serious adverse consequences which mightbe suffered by the practitioner were his name published, tipped the balanceagainst publication in that matter.[26] In the present case there is ample information before the Tribunal toaccept that there are both psychological and physical health conditions at aserious level. In addition to that, as referred to in our interim decision, thepractitioner has in the past been pursued by a litigious and irrational personwho might be expected to re-engage in a campaign against the practitionershould the present matters come to that person's attention.[27] The litigation pursued by this person has been the subject of adversejudicial comment at all levels.[28] Given that there is no risk to the public posed by this practitioner inthe future, we consider that the combination of factors referred to above do,in this unusual set of circumstances, justify the permanent name suppressionof the practitioner, his former client and any identifying details.It appears that the person whom the Tribunal characterised as litigious and irrationalwas not Mr Siemer but rather Grace Haden, who appears to be an associate of his.We infer from paragraph [26] of the decision that Mr Siemer had not been presentduring the penalty hearing.[8] It appears that the Tribunal's decision was published, with the name of thepractitioner anonymised as "Mr M", on the Ministry of Justice website. The evidencesuggests that it was published there shortly after it was delivered.[9] It appears that by letter of 4 May 2017, the Tribunal advised the Ministry thatthere had been a complaint about breach by Ms Haden of what was characterised asits suppression order.[10] On 28 May 2017 Mr Siemer published the practitioner's name in a blog post,in connection with allegations that the practitioner had appeared before the Tribunalin connection with a charge of negligence (incorrectly described by Mr Siemer as"fraud"). The post detailed Mr Wells's past conduct, summarised the content of theTribunal's decision, and alleged that the Tribunal had concealed Mr Wells's name.[11] On 30 August 2017 Mr Siemer was charged under s 263 of the Act with theoffence of contravening an order made under s 240. Section 263 provides that:263 Publication(1) Every person commits an offence who, without lawful excuse, acts incontravention of any order made by the Disciplinary Tribunal underany of paragraphs (a) to (c) of section 240(1).(2) Every person who commits an offence against this section is liable onconviction to a fine not exceeding $25,000.The offence requires that the defendant breached an order that was in force at the time,with knowledge that the order existed and without lawful excuse.[12] At some point the Tribunal's seal was affixed to the decision of 24 November2016. It appears that this was done for purposes of the prosecution. We assume inMr Siemer's favour that it happened after he published his blog post.[13] Mr Siemer's blog post referred expressly to the decision, giving its date. In theDistrict Court, Judge Blackie found that Mr Siemer had access to the Tribunal'sdecision and specifically demonstrated his knowledge of the suppression order; hehad referred to the Tribunal's "reasons to again conceal [the practitioner's] identityfrom the unsuspecting public".10[14] Judge Blackie concluded with a series of factual findings:11(a) The terms of the order were clear and unambiguous. They werebinding on the defendant as they were on any member of the public inNew Zealand.(b) The defendant had knowledge of the order. Obviously, he had readthe 24 November [2016] Tribunal decision, as he quotes verbatimpassages or extracts taken from the decision, including extractsrelating to non-publication.(c) The defendant acted in breach of the terms of the order by publishingthe name of the practitioner that the Tribunal suppressed.(d) The defendant's conduct was deliberate in that he wilfully acted in amanner that breached the order. The whole purpose of the blog sitepublication was to expose Mr Wells as "a long, lingering case of acobbled repeat fraudster where blanket Court suppression ordersprotected his "privacy"". He went on to state:10 District Court decision, above n 3, at [13].11 At [21]."Proving corruption is perpetuated if not emboldened by Courtsuppression orders which prevent public awareness".(e) In reality, it is quite clear that the principle behind the defendant'spublication was to reveal and expose the activities of Neil Wells to hisreaders, despite his knowledge of and in the face of the Tribunal'sorder for name suppression.[15] Mr Siemer has throughout maintained that the Tribunal never actually made orpromulgated a suppression order. Judge Blackie dismissed that argument, concludingthat an order was made.12 He followed the judgment of Clark J in Haden v Police, inwhich the High Court upheld the conviction of Ms Haden for publishing very similarallegations about Mr Wells.13 Clark J reasoned that the Tribunal had clearly intendedto make a suppression order, and that orders within its jurisdiction need not adopt anyparticular format; and further, that Ms Haden had chosen to ignore the order ontechnical and semantic grounds that had no merit, since she plainly appreciated thatthe Tribunal had intended to suppress Mr Wells's name.[16] Mr Siemer's appeal to the High Court was also dismissed.14 In a judgmentdelivered on 14 June 2019 Edwards J held that what the Tribunal had done wassufficient to evidence the making of an order under s 240:[26] It would have been preferable for the Tribunal to expressly record thatit was making a non-publication order in its decision, either in the section onsuppression or at the end of its decision. That would remove any room forargument as to whether an order was in fact made, and the scope of the termsof that order. It may also have been preferable to include a banner on the frontof the decision alerting all those who read it that a non-publication order hadbeen made.[27] However, I am satisfied that the Tribunal's decision is sufficient toevidence the making of an order under s 240 in this case. It is implicit in [28]of the decision that this is what the Tribunal is doing, and there is no room fordoubt that permanent name suppression of the practitioner, his former client,and any identifying details was made. As discussed further in relation toknowledge, it is clear that Mr Siemer regarded the decision as evidencing anon-publication order at the time he made his post and was in no doubt thatan order had been made. The Judge did not err in relying on the Tribunal'sdecision as evidencing an order.[28] There is also no requirement that the Tribunal identify the practitionerby name in its suppression order. As counsel for the respondent submits, anysuch requirement would undermine the very purpose of a suppression order.12 At [21].13 Haden v Police [2018] NZHC 498.14 High Court decision, above n 3.The failure to identify the practitioner concerned does not detract from thevalidity of the order made in any way. I agree with counsel for therespondent's submission that, in practice, the non-publication order haslimited effect, as it only prohibits publication of a practitioner's name if thatname, and the fact that the practitioner is the subject of the Tribunal decision,is already known. In this case, and as discussed further, Mr Siemer publishedthe name of the practitioner with full knowledge of the Tribunal's order.[29] Finally, Mr Siemer's submissions appear to revive the argument madein the District Court that the order was not an effective order "against theworld", but only bound the parties to the decision. That argument cannot besustained in the face of the plain meaning of ss 240 and 263. Section 240confers a clear power on the Tribunal to make an order to the public at largepreventing publication of a practitioner's name, and s 263 specifies the reachof the offence to "every person". Clearly the order was effective againstMr Siemer in this case.[30] It follows that I am satisfied that there was no error in the Judge'sconclusion that there was evidence of a valid order of suppression thatprohibited Mr Siemer from publishing the practitioner's name and identifyingdetails. This ground of appeal must be dismissed.[17] We need not discuss other parts of Edwards J's decision, but we do note inpassing that she rejected an argument that the order ought to be deemed unlawful fornon-compliance with s 14 of the New Zealand Bill of Rights Act 1990.15Following the judgment of the Supreme Court in Siemer v Solicitor-General, acontempt case, she held that the order must be treated as valid unless and until variedor set aside.16The Tribunal's power and processes[18] The Act regulates the provision of legal and conveyancing services to maintainpublic confidence in them, to protect the consumers of those services, and to recognisethe status of the legal profession and the profession of conveyancing practitioner.Relevantly for present purposes, it records fundamental obligations of practitionersand establishes processes for investigating breaches of professional standards anddisciplining practitioners who transgress. It continues the New Zealand Law Societyas a body corporate with perpetual succession and a common seal and confers uponthe Society regulatory functions that include the Act's enforcement.1715 At [37]–[39].16 At [33]–[35] citing Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.17 Lawyers and Conveyancers Act 2006, ss 63, 65 and 67.[19] What follows is a brief survey of the procedures which the Tribunal wouldnormally follow, focusing on its processes for making and facilitating enforcement ofits orders. Sections 226 to 228 establish the Tribunal and its functions and provide forits membership. It may sit in divisions.18 Section 234 provides that for purposes ofany disciplinary proceedings the Tribunal must consist of a chairperson and certainother members. There is no provision for a seal. The Act regulates the Tribunal'sprocesses by providing for representation, for public hearings and for evidence, andby providing that it must observe the rules of natural justice.19 A schedule deals withpower to summons witnesses.20 Except as provided by the Act, or by rules made underit, the Tribunal may determine its own procedure.21[20] The Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008contain additional procedural provisions governing the laying of charges, service ofdocuments and conduct of hearings. Regulation 34 provides that an order or decisionof the Tribunal may, if the Tribunal thinks fit, be delivered by any one or moremembers. There is no prescribed form of order — notably, there is no requirementthat an order should specify under what legislative authority it was made — and noprovision for orders or decisions to be sealed or signed or otherwise made formal.It appears that the seal used by the Tribunal in this case may have been an artefact ofits practice in a former life.[21] The Tribunal's jurisdiction to make a suppression order is found in s 240 ofthe Act, which provides that the Tribunal may make orders prohibiting publication of,among other things, the practitioner's name:240 Restrictions on publication(1) If the Disciplinary Tribunal is of the opinion that it is proper to do so,having regard to the interest of any person (including (withoutlimitation) the privacy of the complainant (if any)) and to the publicinterest, it may make any 1 or more of the following orders:18 Section 229.19 Sections 236–239.20 Schedule 4, clause 6.21 Section 252.(c) an order prohibiting the publication of the name or anyparticulars of the affairs of the person charged or any otherperson.(4) For the purposes of exercising the Disciplinary Tribunal's powerunder subsections (1)(c) and (2) to make or revoke, before the start ofthe hearing of the charge, an order prohibiting the publication of thename or any particulars of the affairs of the person charged or anyother person, the quorum at any sitting of the Disciplinary Tribunal ora division of the Disciplinary Tribunal is, despite section 235(1),the 3-member quorum specified in section 235(5).[22] Under s 255 of the Act, orders in which certain sanctions are made, such asstriking-off, must be filed in the High Court, where they are deemed to take effect asif they were orders of that Court. They are also gazetted.22 Section 258 provides thatif the Tribunal makes an order (other than an order to which s 255 applies) underPart 7, which includes the power to suppress publication under s 240, that order"may be filed in an office of the High Court", in which case it takes effect as if it werean order of the High Court to like effect made within its jurisdiction.[23] However, filing in an office of the High Court is not a prerequisite to aprosecution commenced to enforce an order made under s 240. Section 263 simplyprovides that every person commits an offence who, without lawful excuse, acts incontravention "of any order made" by the Tribunal under any of s 240(1)(a) to (c).[24] That brings us to the question on which the appeal turns: whether an order wasmade.Did the Tribunal make a non-publication order?[25] It is arguable that an order was made at the conclusion of the penalty hearingon 8 November, when the chairperson stated that "name suppression will begranted".23 An order pronounced orally by the chairperson in the presence of theTribunal members sitting would comply with reg 34, and it would bind those withnotice of it, including Mr Siemer had he been present.22 Section 256.23 Penalty hearing, above n 6.[26] However, the case was not argued in that way, for good reason. The Tribunalevidently intended that the orders would be made in its written reasons for decision.As noted above, the written reasons did not state that they recorded orders alreadymade. And it is not suggested that Mr Siemer attended the hearing on 8 November.The police relied on the written reasons to establish that he had notice of the order, soestablishing the mental element of the offence under s 263. We accordingly put anyorders pronounced on 8 November to one side. We approach the appeal, as counseldid, on the basis that if an order was made at all, it was made in the written reasons of24 November. This is a point of some moment in this case, as we explain below.[27] The written reasons were recorded in a document intituled as a decision of theTribunal, whose members it identified, in the proceeding against Mr Wells, who wasidentified as "Mr M" or "the practitioner". The document was signed by thechairperson, but as noted above the rules do not require a signature, still less theaffixing of a seal. Mr Henry did not argue that the reasons were anything other than adecision delivered by the chairperson for the Tribunal.[28] That brings us to the question whether the Tribunal "made" an order fornon-publication by stating that "we consider" the listed factors and circumstances "do justify the permanent name suppression of the practitioner, his former client andany identifying details".24[29] On their face, these words state only that the Tribunal was satisfied thatgrounds for suppression had been made out. Mr Henry argued that nowhere did theTribunal actually make an order. It did not follow the practice of recordingsuppression orders in a banner at the top of the first page, nor did it list the orders madein an order band or gather them together in a results section at the end of its decision.It did make some orders; as noted earlier, it stated clearly that it was fining andcensuring Mr Wells.[30] Mr Hodge accepted that the fact an order had been made must be clear to areader of the decision. We agree and add that a suppression order, unlike other ordersthat the Tribunal may make, is addressed to the world at large and a breach may result24 Tribunal decision, above n 1, at [28].in criminal proceedings. That being so, the question whether its language waseffective to make an order is to be answered objectively, from the perspective of thereasonable person having no knowledge of the case apart from the Tribunal's decision.That is the correct standard notwithstanding that, in this case, the reader would needto know some additional facts to appreciate that "Mr M" was in fact Mr Wells.[31] It is at this point that we consider the courts below erred. They found itsufficient that Mr Siemer knew the decision concerned Mr Wells and understood thata suppression order had been made. There are two difficulties with that approach.First, it conflates two separate requirements: the making of an order and Mr Siemer'sknowledge of it. The question, as we have explained, is whether a reasonable observerwith no knowledge of the case apart from the written reasons would have understoodthat an order had been made. Second, it assumes that Mr Siemer acquired hisknowledge by reading the decision. Plainly he knew more than that; he must havedone, in order to appreciate that it concerned Mr Wells. For all we know (we do notsuggest this is in fact the case) he may have been told of the order by someone whowas at the penalty hearing on 8 November and heard the Chairperson's announcementthat suppression would be granted.[32] In our view the Tribunal's decision did not make it sufficiently clear that anorder had been made. It did not say so in as many words. The conclusion that an orderwas made rests on an inference founded only on its decision that grounds for an orderhad been made out, but a decision is logically antecedent to an order. Mr Hodgepointed to the fact that Mr Wells's name was anonymised, but that need not evidencea suppression order. Anonymisation can be an alternative to suppression, used forexample to limit publication of information in which there is a legitimate privacyinterest.Answers to questions posed[33] For these reasons, we answer the questions set out at [2] as follows:(a) No form of words is prescribed and it is not necessary to recite theTribunal's legislative authority to make a suppression order.However, the Tribunal must make clear to the reasonable observer withno knowledge of the proceeding apart from the decision that it ismaking a suppression order. It is best practice to record the order in abanner at the front of the decision and in an order band or results sectionrecording the formal outcome.(b) Yes. The Tribunal's language in this case did not make sufficientlyclear to the reasonable observer that a suppression order was made.(c) No. We set aside Mr Siemer's conviction.[34] We did not hear argument on the question whether a suppression order oughtto now be made with respect to Mr Wells' client. She has not been named in thisjudgment or those of the courts below, but her name will be mentioned in theTribunal's records and we cannot exclude the possibility that someone with knowledgeof that information would take the opportunity to publish her name. We remit thequestion of her name suppression to the Tribunal for further consideration.To preserve its opportunity to make such order, we make an interim order suppressingher name pending reconsideration by the Tribunal.25Solicitors:Meredith Connell, Auckland for IntervenerCrown Law Office, Wellington for Respondent25 Relying on the implied power of all courts to order suppression in a civil context where necessaryfor the administration of justice: Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310.