"WE CHANGE THE LAW NOT INFREQUENTLY"
4 March 2010
Tuesday's Supreme Court appeal
Siemer v Solicitor General in the new $100 million building showcased brilliant performances by lawyers on both sides. It also offered up some stupendous 'judgespeak'.
The appeal has significant implications for the law of contempt and Bill of Rights in New Zealand. It challenges a Court of Appeal rejigging of a 6 month prison sentence imposed upon
kiwisfirst editor Vince Siemer by the High Court in August 2008 for failing to shut down this website and www.stiassny.xxx. That action was brought by the Solicitor General under a civil application to punish alleged breaches of an interim injunction granted in April 2005 to Auckland insolvency accountant Michael Stiassny. Mr Siemer's Supreme Court appeal claims he was denied criminal protections, was improperly deprived a trial by jury and that lower courts both misstated the injunction and failed to identify what published texts he was required to remove.
The appeal took the full day and was heard by Sian Elias CJ, Peter Blanchard J, Noel Anderson J, John McGrath J and the embattled Bill Wilson J.
 Elias CJ had earlier refused to disqualify herself after voluntarily disclosing to Siemer's Counsel potential conflicts she and her husband have with Michael Stiassny. Mr Stiassny is NZ Racing Board Chairman and Elias and her husband are heavily invested in horse racing. Her husband and Stiassny are both directors of Vector Limited.
The Court of Appeal earlier altered the sentence into an "unless order" which stated Mr Siemer would be released from the fixed sentence after complying with the order. He has been out on bail since October 2008, after spending 10 days in Mt Eden.
Early in the hearing, Judge Peter Blanchard (
pictured) retorted
"We change the law not infrequently" after Robert Lithgow QC presented the bench what he had considered to be well-settled legal concepts in New Zealand.
When Mr Lithgow attempted to state the Courts had failed to identify what Mr Siemer was being ordered to remove, Justice Anderson interjected
"He runs a website. Presumably he knows English. He can figure it out."
When the Crown responded, Chief Justice Elias informed Crown prosecutor Madeleine Laracy that the bench did not want her to address this point in her oral submissions.
Ms Laracy instead focused on U.S. and Canadian case law in support of her claim that the New Zealand Bill of Rights offers no protection when it comes to the NZ Courts punishing for alleged breaches of its own orders. She maintained that the power of contempt was "coercive" and not "punitive" in this case, irrespective of the sentencing order sought, and eventually made by the Court. She suggested chaos would reign if alleged violations of court orders were determined by juries. She stated the authority of judges and the Courts would be undermined and this risk required contempt punishment to remain the exclusive preserve of judges. She likened it to the contempt powers of Parliament, while admitting Parliament has never used such powers to commit someone to prison.
While initially attended by several news reporters, the courtroom had largely emptied when Mr Lithgow gave his rebuttal that the Bill of Rights not only specifically bound the judiciary, but that jury examination fit comfortably with the aim often-expressed by the Courts of maintaining the confidence of the public in its decisions. BACK TO FRONT PAGE
Fight to protect Bill of Rights Ignored by Limited NZ Supreme Court
Wellington, New Zealand 11 June 2007
Justices
John McGrath and
Andrew Tipping, acting for the New Zealand Supreme Court upon pressure from Judges
Willy Young and
Judith Potter, refused to hear an appeal by Auckland businessman Vince Siemer relating to his prosecution for exposing what he claims is an 'Enron-esque' scandal occurring in the Country's energy-sector. The appeal stems from a High Court injunction issued in April 2005 that muzzled Siemer from claiming Vector Energy Chairman Michael Stiassny has unduly benefited financially from his imposition of abnormal accounting treatments, including aggrandizing the public utility's asset valuation (currently to NZ$5.7 billion). The Court of Appeal upheld a limited injunction in December 2005 but Siemer has since re-launched his website
[RELATED STORY LINK BLOCKED BY ORDER OF NZ SOLICITOR GENERAL - EMAIL HIM
david.collins@crownlaw.govt.nz
TO ASK WHY], placing himself in alleged contempt of the injunction.
The Supreme Court has said that because the action was filed as an interlocutory application it is not required to consider the appeal.
Siemer claims that the local lines company's valuation is misleading due to it valuing assets on replacement cost, as well as the electricity monopoly assigning $1.7 billion (or 30% of total valuation) to 'goodwill'. Stiassny has additionally claimed publicly that Vector achieved an unrealized $500 million gain on the acquisition he orchestrated of gas utility company NGC in 2005 and gave a speech in October 2005 to the N Z Institute of Directors where he claimed to have grown the company from a one billion dollar company to one worth five billion dollars in three years time. Siemer uncovered Vector's own internal assessment at the time placed the likely benefit from the NGC acquisition at a mere $6 million, roughly 1% of the acquisition cost.
The appeal states the New Zealand Bill of Rights Act 1990 guarantees the right to warn the public in relation to what Siemer knows about Stiassny's accounting practices. He has now forced the issue with New Zealand's highest court that, having earlier provided sufficient evidence to the Appellate Court in support of his claims of gross misconduct by Stiassny, the Court failed its legal obligation to revoke the injunction. Consequently, he says he is no longer obliged to comply with what is an unlawful restriction to freedom of expression.
Vector is 75.1% owned by the Auckland Energy Consumer Trust, with 24.9% publicly traded on the NZX share market. There is little regulation in New Zealand governing traded shares. Ownership of 75% is significant, constituting a 'super-majority' that severely limits the legal rights of minority shareholders.
In July 2006 the Commerce Commission signaled its intent to take over Vector due to repeated overcharging, in breach of the Fair Trading Act. A settlement was reached four months later. In December 2006, the three independent directors Greg Muir, Tony Gibbs and John Goulter resigned en-masse, saying they have had ongoing concerns with the governance of the company and the leadership of chairman Michael Stiassny. In May 2007 the Chief Financial Officer Peter Fredricson also unexpectedly resigned.
Stiassny, an insolvency practitioner by trade, wields considerable power in the small New Zealand business community.
"content censored by order of the New Zealand Supreme Court" Others have subsequently approached Siemer with further evidence of Stiassny's mismanagement and furtive accounting methods.
Stiassny filed a $1.2 million defamation lawsuit in the High Court against Siemer in April 2005 claiming Siemer is engaged in a malicious personal vendetta against him, but has taken no apparent action in the more than two years since to advance his lawsuit.
Complicating the matter for Siemer is the fact that Hugh Fletcher, husband of the Supreme Court Chief Justice Sian Elias, was recently appointed director of Vector Energy. Some would say it is a small world - nowhere more proven than the incestuous board rooms that rule the business (and Court) roost in New Zealand. #
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NATURE KNOWS BEST -
is our court and political system damaging the nuclear family?
LEGAL AID TOPS $20 MILLION
Feilding lawyer Rob Moodie in Contempt
Editorials from Viewers
Dominion Post Reporter admits to making up Vector story
26 October 2007
In a story appearing in the
Dominion Post last weekend, reporter Andrew Janes detailed events at the Vector annual general meeting of 19 October 2007 at Ellerslie Event Centre in Auckland. The big problem was Mr Janes got his facts wrong. When questioned about this, Mr Janes responded that he arrived late and had made up a statement that Vector shareholder Vince Siemer had been barred by Police from entering the meeting. No indication was made in the Post story that the reporter missed part of the event he purported to cover. He has now admitted to simply making it up.
The
Dominion Post is a Fairfax Media Publication, as are the
Sunday Star Times,
The Independent Weekly and the web-based site Stuff.co.nz.
This admittedly false reporting follows earlier claims by
Star-Times Business Editor Tim Hunter that Vector should be allowed to grow and that recent mass resignations by its directors, CEO and CFO where not indicative of any problems he could see. Fairfax's photographer was also barred (in addition to Siemer) by hired security staff from the shareholder meeting. Hunter responded that he could understand why Vector would want to keep Siemer out of the meeting but that he had called Vector
"to tell them I was unimpressed" that they would bar his news photographer. None of this was worth reporting according to Hunter.
The article by Mr Janes focused on Chairman Michael Stiassny's very public battle with the Commerce Commission over claims by the Commission that Vector has been overcharging consumers on gas and electricity and Stiassny's responding threat that Vector would cease to invest in infrastructure unless it was allowed to charge more. These are the same arguments ENRON waged for years. Not surprisingly it was California - the least regulated U.S. state ENRON operated in at the time - that experienced rolling power blackouts and 20 fold price increases virtually overnight at the hands of ENRON management. This manipulation of prices stalled ENRON's inevitable demise by a year. The cost to California remains incalculably high even to this day. California has since tightened up its regulations on utility providers.
The Post article follows a trend by Fairfax of not reporting the significant financial pressures facing Vector as a result of poor and reckless management. As an example, Fairfax has gone quiet on the fact that even as Vector is selling productive assets their debt is increasing - as well as the fact that Vector reported negative retained earnings in order to pay a dividend to shareholders this year. Asked about this troubling scenario last year, Hunter merely responded that dividends do not necessarily follow earnings.
An insider has told
kiwisfirst that the media in general - and the New Zealand Herald in particular - are afraid to report Vector's financial woes for fear that it would trigger a mass share sell-off that results in Vector's enormous loans being called due and a collapse of the company. Television networks in New Zealand largely pick up these business stories from the major newspapers, explaining why the chain of non-reporting does not require anything resembling a conspiracy. With only 25% of Vector's shares publicly trading, the company is well insulated on its invested capital but breach of its debt covenants and pressure on its BBB+ credit rating is a serious issue which could result in escalating interest rates on its massive debt - and possibly the notes being called by the banks. A proxy battle by shareholders is not possible to turn around Vector's fortunes. By its own account, Vector's debt is pegged at over 62% of valuation, even with an untenable $1.6 billion in 'goodwill' on the books of this monopoly utility. Two elected trustees, Shale Chambers and Karen Sherry represent the majority shareholder (Auckland ratepayers) on the eight member board of directors. Both have negligible productive experience running a public company.
Increasingly the company's board has been put into a position where it must strongly lobby politicians to put pressure on the Commerce Commission to allow it to charge what it wants to charge to save their own necks. So far Commission Chair Paula Rebstock has staunchly stood up to Staissny and Co in enforcing the regulation model widely proven to be equitable and successful around the world.
The problem with the lack of relevant media reporting and misreporting regarding Vector is that consumers are increasingly being unwittingly saddled with a burgeoning financial burden that is more than triple what it was a few years ago despite a successful capital float of 24.9% of the company in August 2005. Vector's debt currently stands at $3.1 billion.
With the Vector board largely replaced in recent months, Michael Stiassny is now the only director with finance and accounting expertise. This is a dangerous combination with Stiassny's well-known autocratic style. Another problem is that, other than his liquidation accounting practice, Mr Stiassny has not shown an ability to run successful companies. Many in the industry have commented that a liquidator's core competencies are opposite that of a manager of productive enterprises. The huge debt accruing since Stiassny took over Vector stands as apparent proof. If this situation is allowed to continue, a looming catastrophe in the power supply sector is just around the corner. # (Back to front page)
FORMER TOP COP REFLECTS ON HIS OWN POLICE CULTURE EXPERIENCE IN CLAIMS NEW TERROR LAWS ARE THREAT TO CIVIL LIBERTIES
 DEEP IN THE FOREST
by Ross Meurant, B.A. M.P.P.
Like most recruits, I entered the police as an impressionable young man with a basic education, from a working class environment in provincial New Zealand. There were hundreds of peers like me, before me and after. I was nothing special but I was altruistic. We were all cannon fodder. Easy to manipulate. We looked at the forest before us in awe.
The moment you step into the police, this sub culture within NZ culture hits you. You are immediately part of the thin blue line. You are part of a team and that team looks after itself. You are special. You are the border between good and evil. The attitudes of the police instructors, armed not with teaching certificates but with ten years exposure to the police sub culture, either consciously or subconsciously invite you into the forest.
To step out of police college is to take the next step into the forest. You are now part of the difference between law and order in the streets where gangs would rule and evil would triumph. But for you and your fellow coppers, society would be a dangerous place. Your mission is to protect society from this evil. Very soon you learn to decide what is evil and what is not. You are no longer just a collector of human rubbish at the base of the cliff but you have an obligation; yes, even a duty to guide the country to a decent society. That direction is best decided by you and others in your sub culture of police, for what better epitomizes the values of a decent society than those cherished by the men and women in blue? Your task is honourable. What better vocation than to rid the country of evil? Thus, achieving this end can even justify the means!
The further into the forest, the more pervasive becomes this police culture. The heart of the beast is centered in elite CIB squads like Regional Crime, Criminal Intelligence and Drug Squad. These are the destinations to which the most ambitious and zealous aspire. Together with the Armed Offenders Squad and Team Policing units, these entities are the bastion of police culture.
Of course there are those who do not aspire to these objectives but then, the police is also a government department which always harbor a good number of 'glide timers': there to collect their pay and do as little as possible, which is the best route to longevity in any government agency. Often these people will suddenly find themselves floating on the top of the pool.
Every new entrant runs the same gauntlet. No recruit is ever formally 'taught' to use violence, to lie and cover up. None of my mentors did that to me and I never did it to those whom I mentored. But the culture sends a very clear message. 'When you witness transgression by a colleague, keep your mouth shut at worst and at best, provide an account which supports the miscreant and helps him/her out of a sticky situation.' If you don't, as a new recruit, you are ostracized. You may as well quit there and then. But once you have provided succor, you have taken your next step into the forest. Later you will witness another indiscretion and you will again 'cover'. After all, you have been accepted as one of the team. You are 'reliable'. To lose that status is not a desirable outcome. But already you are compromised. Then one day you will commit an indiscretion and others will cover for you. Then you are beholden. Then you have entered the forest proper. There is no light to show the way home.
When I speak about a police culture, I speak about the environment I have described. It is introverted, self protecting and lacking objectivity. It is a culture which looks after itself and has a certain view of how life should proceed. It is reinforced by drinking and bonding sessions. The 'them and us' ethos becomes tangible. What is more, the culture is working class conservative in its origins. Bigoted and intolerant. Few of its officer corps are university graduates and even fewer hail from private schools. There is no network which pervades the upper echelons of society. The police are insular.
If someone has tattoos or hair too long or dresses the 'wrong' way or does not have 'acceptable' politics, then they are one of 'them' and not to be trusted. Conversely liberals are a menace to stability and are even more dangerous than unemployed Maori.
I recall when as a detective in the mid seventies, I applied to go to university and was asked by my commissioned officer: "Meurant. Why do you want to go to university? Are you a communist?" The message was pretty clear. This was at the height of Vietnam. The police sub culture did not approve of its members being associated with undesirable elements who frequented establishments of enlightenment!
When I did finally go to university I found my lecturers to include Michael Basset, Phil Goff and Helen Clark, all of whom where later my peers in parliament but who at the time I entered university, shared decidedly different political beliefs to me. Yet even though I argued, as an example, that US foreign policy in Vietnam was 'defensive' (domino theory), these people approved my assignments. They were prepared to tolerate a philistine within their midst, suppress their natural aversion to me and mark my opinions objectively. This, as I reflect, juxtaposes starkly the attitude or culture of the two institutions. One institution is prepared to tolerate alternative views. The other is not.
I advanced in the rank structure relatively quickly in the police and soon found myself incarcerated as supervisor in a control room; a job I loathed. So I did go to university and here, the first signs of light began to reappear. Slowly the mist began to abate and I saw things from a different perspective. In all, I did eleven years at either Auckland or Victoria universities. I am immensely grateful for how those institutions unwittingly help me exorcise the demon of excessive exposure to police culture.
This 'culture' manifests in many different forms. Three recent examples will illustrate my point and demonstrate that it is as alive and well as it was in my day:
John Dewar. Recently incarcerated for, according to the view of the Court, covering up for the despicable conduct of assistant commissioner Rickards and two other police officers. John Dewar was one of the best sergeants I ever had as an inspector, but the 'culture' manifest in his destiny in a most tragic manner for him.
Then there was the police shooting of a man in Christchurch. The law is clear when a cop or civilian may kill another human being. One must fear on reasonable grounds, death or grievous injury to oneself or a third person which cannot otherwise be prevented. In my view the circumstances of the killing are not as transparent as the police public relations section would have us believe. A man shot wielding a hammer on cars! Not dissimilar to a man shot, wielding a golf club against shop windows.
The proper place to test the validity of police action is before a Court. The strength of our police is public confidence and support; without which they are nothing. The best way to retain that public support is for transparency and that is best achieved by testing police actions in a Court of law. Yet immediately after the killing we have the police association representative, completely out of line in my view, seeking to influence the outcome by claiming the shooting was justifiable and that we should trust the police to judge their own actions. This of course is the manifestation once again of the police culture: look after the police. That is quite different, in my view, to looking after the rule of law.
Finally there is the recent implementation of draconian anti terror legislation to combat routine crimes and offences in the community. Police say they have collated information over a period of 12 months which on analysis leads them to the conclusion that there is a real threat to the stability and security of our country. The problem as I see it is, that information they have has been self assessed by the same people who collate the data or at best, by the supervisor of the 'intelligence unit' and his superior; all of whom view society from within the forest and with vested interests in producing an outcome which justifies the retention of their unit. These subjective conclusions are presented to judicial officers as the basis of justification for warrants and implementation of anti terror legislation which abrogate the most basic of our legal rights.
No longer are we protected from arbitrary detention without being charged and the legal requirement to be taken before a Court as soon as possible. This I find unacceptable.
I am also disappointed that too many New Zealanders appear not to comprehend the significance of what it means to our legal structure when on the basis of subjective analysis by the police, these Guardians substantially usurp the role of the judiciary as a check and balance against tyrannical tendencies. There is a fundamental flaw in the present legislation where it allows a subjective test of police information by police, to form the basis of reason to catapult us onto a terror alert footing. It is even more disturbing to me when I know the environment where these decision are made, is deep in the forest. What the police are effectively saying is:
"In the Ureweras there are weapons of mass destruction. Trust us." Sound familiar?
I have been in the forest. In the seventies I was a detective on Regional Crime and Drug Squad. I was also on the AOS. My formal police assessments were high. 'Excellent' as a detective. 'Outstanding' as a commissioned officer. In my formative years my immediate supervisors included detective sergeant John Hughes, detective inspector Graham Perry and later detective inspector Bruce Hutton (Hutton was my boss on my first homicide: the Crewe murders). These men were legends in their own time, each of them relentless and with a determination of mind few could match. Together with half a dozen other young detectives, we formed a formidable unit; we became a legend in our own time.
Our adversaries were serious villains: Peter Fulcher, Mihaly Bede, Terry Clarke alias Mr Asia, the Saffiti boys and several gangs. This was a particularly violent time in the history of policing in New Zealand. We were right in the middle. It was inevitable that we, who consistently faced angry men in dark alleys, would have allegations made against us. I had my share against me.
There were allegations of excessive force; that I was aware of but did nothing about an offender alleged being dangled by his ankles from the fourth floor of the police station; perjury and even one of extracting a confession from a drug dealer by playing on him Russian Roulette with a police issue revolver. These allegations were of course outrageous untruths without foundation and never sustained.
In 1981 I was seconded to the police Red Escort Group - Red Squad. I later wrote a book about the exploits of the squad. That initiative catapulted me into the headlines for the first time. On the one hand, I believe it provided the impetus for me to gain selection for National as a Member of Parliament in a conservative seat. On other hand, because I later became a Member of Parliament and had written the book, The Red Squad Story, I became synonymous with Red Squad and alone have endure the odium and contempt heaped upon that police unit, as the tide of public opinion turned.
My last job in the police was inspector in charge of special operations and a criminal intelligence section. At the time the focus was on the activities of Maori activists at Carrington hospital. I took raw police data and used it in my Maiden Speech. At the time I believed in the conclusions we as a police unit had peer reviewed. Some form of revolution or armed insurrection had been threatened. There were threats of 'Kill white die a hero". Maori wanted political sovereignty. Maori activist Sid Jackson was one of several who had been to Libya. But did a contrary political view and aspirations really pose a threat to the security and stability of our country? History has provided the answer. There has been no revolution and at least one of the Maori activists of those times is now in Parliament working within the system.
I made a mistake when I took the raw police data and used in my Maiden Speech. It took another 9 years in parliament, another 3 years at university and as I do now, living in East Europe where the legal protections and freedoms we take for granted often do not exist, for me to finally step out of the forest and see it for what it is.
I urge every New Zealander not to allow the State apparatus to take from you by default, legal rights people long before us fought for, died for. I urge every New Zealand to contact their Member of Parliament and express concern that the anti terror legislation currently before parliament, be placed on 'hold' until the true nature of the present police raids under the auspicious of terror legislation, is tested before the Courts.
Is a delay of a few months too much to much to ask before we take the next step toward undermining the most significant legal document ever which has endured since 1215? The Magna Carta. # RETURN TO FRONT PAGE
www.rossmeurant.co.nz
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