PUBLIC WATCHDOG Penny Bright will file the Application for Orders: ‘Revoking, lifting or ruling as legally invalid, the alleged suppression order of Winkelmann J’ in the Auckland High Court Wednesday 13 July 2011.

12 July 2011

From: John Richardson <John.Richardson@justice.govt.nz>
Date: Tue, Jul 12, 2011 at 5:13 PM
Subject: URGENT – OPEN LETTER John Richardson (Criminal Manager Auckland High Court)

RE: Filing of an Application for Orders: ‘Revoking, lifting or ruling as legally invalid, the alleged suppression order of Winkelmann J’
To: Penny Bright <waterpressure@gmail.com>

Good afternoon Penny.

I acknowledge receipt of your email.

As I understand it the Registrar, Mr Tony Mortimer, sent you a reply to the papers you brought in on Thursday last week, although I am unsure if you have received it as yet.

I have attached a .pdf version of it in case you have not.

VINCE SIEMER Tony Mortimer reply after reviewing ‘Application For Order’ 8 July 2011

Having discussed the jurisdiction issue with my colleagues, I can confirm that the view is that the application should be with the Civil jurisdiction.

Regards,

John Richardson.

URGENT – OPEN LETTER John Richardson (Criminal Manager Auckland High Court):RE: Filing of an Application for Orders: ‘Revoking, lifting or ruling as legally invalid, the alleged suppression order of Winkelmann J’

12 July 2011

OPEN LETTER John Richardson (Criminal Manager Auckland High Court)

I, Penelope Mary Bright, (aka Penny Bright) give notice that I will (again), on Wednesday 13 July 2011,before 5pm, apply at the Auckland High Court for orders:

“1.1 Revoking, lifting or ruling as legally invalid, the alleged suppression order of Winkelmann J, which purports to prevent the New Zealand public, and the world at large, from knowing about her Honour’s Judgment granted that same day in 18 criminal prosecutions (CRI2007-085-7842, CRI2007-085-7843, CRI2007-085-7840, CRI2008-004-9108, CRI2008-004-20747, CRI2007-004-23065, CRI2008-004-20022, CRI2007-004-23068, CRI2007-004-23069, CRI2008-004-20748, CRI2007-004-23066, CRI2008-004-20045, CRI2007-063-4445, CRI2007-063-4441, CRI2007-054-4999, CRI2007-063-4472, CRI2008-070-1415, CRI2008-404-342), known collectively as “the Operation 8 prosecutions”.

1.2 Revoking, lifting or ruling as legally invalid, the Minute of Winkelmann J dated 21 December 2010; to the extent that “Minute” intends to – or results in- the New Zealand public or world at large from knowing relevant facts in the prosecution or reasons for suppressing all of Her Honour’s 9 December 2010 Judgment in the Operation 8 prosecution, including such basic and important information as the fact of their indictment on charges.1

(1 Refer to paragraph [1] of the Judgment of Winkelmann J dated 9 December 2010, “Operation 9 prosecutions”) ”

The ‘legislative basis’ upon which I am relying, in order to file this application, lies in CIV 2010 – 404 – 8559 Solicitor-General of New Zealand v Vincent Ross Siemer , Judgment of MacKenzie and Simon France JJ, 4 July 2011.

VINCE SIEMER Solicitor General v Siemer judgment(3) CIV 2010 404 8559 HC Ak 4 July 2011 MacKenzie & Simon France JJ 12 July 2011 

[41] ……..
It is open to persons including Mr Siemer to apply to the Court for a variation of the order,                     or    for   its removal, but until that is successfully done the order is binding.

_______________________________________________________________________________

I have already attempted to ‘to apply to the Court’ for the ‘suppression order’ of Winkelmann J to be removed.

As you know, I  attempted to file this ‘Application’ with yourself, on Thursday 7 July 2011, at the Auckland High Court.

I first attempted to file this ‘Application’ under the ‘Civil’ jurisdiction, but was told that ‘Civil’ jurisdiction – didn’t have the jurisdiction,  and to take it to the ‘Criminal’ jurisdiction.

My ‘Application’ was passed over to you as ‘Manager’ but you refused to accept this document for filing, claiming that there was no ‘legislative basis’ for myself as a ‘non-party’ to apply for such an order.

(I do understand that on Thursday 7 July 2011, at the time you refused to accept my ‘Application’ for filing,you were probably unaware of this above-mentioned Judgment, and the part of this ruling [41] which is directly pertinent to this matter.)

However, you did accept a copy of my ‘Application’, for the Registrar of the Auckland High Court (Tony Mortimer) to ‘review’ – so you do already have a copy.

On Friday 8 July 2011, after reading carefully the above-mentioned judgment, which makes clear provision for ‘non-parties’ such as myself to ‘apply to the Court for a variation of the order, or for its removal’, I rang and left messages on both your ‘land line’ and mobile phone, in order to bring this very important information to your urgent attention.

I stated that  there must be some basis in law for a non-party such as  myself to apply for the removal of this suppression order – or these Judges wouldn’t have said that it could be done?

I put it to you, that once you have seen for yourself  this Judgment CIV 2010 – 404 – 8559
Solicitor-General of New Zealand v Vincent Ross Siemer , Judgment of MacKenzie and Simon France JJ 4 July 2011, you can no longer claim any lawful basis for continuing to refuse to accept the filing of my ‘APPLICATION FOR ORDER’ .

What is also arguably patently ridiculous in this situation is that this latest judgment, which is not ‘suppressed’,  contains details of the judgment of Winkelmann J which was suppressed.

Vince Siemer is now facing imprisonment for ‘contempt’ for ‘disseminating details of Judge Winkelmann’s decision – which I have too have disseminated. I too am upholding the public’s lawful right to know Judge’s decisions and their reasons for those decisions.

Am I too going to face imprisonment for ‘contempt’ of court?

What ‘LAW’ have I, or Vince Siemer ever broken?

If there is anyone whom you would  expect to follow the the ‘Law’ – it it is surely the Judge?

Following are what I believe to be key grounds supporting this ‘Application’ for orders ‘revoking, lifting or ruling as legally invalid, the alleged suppression order of Winkelmann J, which purports to prevent the New Zealand public, and the world at large, from knowing about her Honour’s Judgment granted that same day in 18 criminal prosecutions (CRI2007-085-7842, CRI2007-085-7843, CRI2007-085-7840, CRI2008-004-9108, CRI2008-004-20747, CRI2007-004-23065, CRI2008-004-20022, CRI2007-004-23068, CRI2007-004-23069, CRI2008-004-20748, CRI2007-004-23066, CRI2008-004-20045, CRI2007-063-4445, CRI2007-063-4441, CRI2007-054-4999, CRI2007-063-4472, CRI2008-070-1415, CRI2008-404-342) known collectively as “the Operation 8 prosecutions” ‘.

http://www.legislation.govt.nz/act/public/1985/0120/latest/DLM78862.html?search=ts_act_Criminal+Justice+Act+1985_resel&p=1#DLM78862

“[4] There is no basis in law to suppress a court judgment resulting from a criminal prosecution.          Such judicial powers are limited to the evidence adduced, the submissions made, publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses under s 138 of the Criminal Justice Act 1985.

4.    s 138 of the Criminal Justice Act 1985 states:

      138    Power to clear court and forbid report of proceedings

…….

(5)    The powers conferred by this section to make orders of any kind described in subsection (2) are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.

5.         It is a violation of natural justice to attempt to enforce a suppression order, with criminal penalties, against the public at large (i.e. not parties to the proceeding) for commenting on, or disseminating, a judgment, without the right to be heard, in a free and democratic society.

6.         Similarly, it is an unreasonable restriction on the statutory right of freedom of expression guaranteed under the New Zealand Bill of Rights Act 1990 for New Zealand citizens to face prosecution and be threatened with loss of their liberty simply for disseminating or commenting on any court judgment – particularly cases pertaining to the ongoing “Operation 8 prosecutions”, which have already been the subject of significant public interest.

7.         The order is in direct conflict with the principles of open and transparent justice which have been the hallmark of an honourable and just court system in every egalitarian society, because it effectively makes the judgment secret and unavailable to public scrutiny.

8.         The subject suppression order violates a broader interest – that of significant public interest – and the conflict of Justice Winkelmann’s alleged suppression order against this broader public interest has been confirmed in correspondence between the Crown Prosecutor, Mr Burns, in the Operation 8 prosecutions and the High Court in which the alleged suppression order originates.

9.         It is relevant to the grounds of this application that Justice Winkelmann gave no reasons for the alleged suppression order, if indeed it was Her Honour’s order, for concealing the public court judgment from the New Zealand public and the world at large. Justice cannot ‘be done or be seen to be done’, if the judgment of ‘what was done’, and ‘why it was done’ is deliberately hidden from the public.

11.       The risk to personal liberty against citizens of New Zealand is unacceptable, if the alleged suppression order is allowed to stand.  The threat to personal liberty is evident by the recent prosecution of the legal news website publisher Vince Siemer, who is currently facing imprisonment as a sole and direct result of publishing this public court judgment. ²

12.       As the applicant has disseminated details regarding this 9 December 2010 judgment to the public, as well as engaged in commentary regarding it, she faces potential prosecution by the State unless the court suppression order – if it is determined by this Honourable Court to be an actual order – is allowed to stand.

13.       If Justice Winkelmann’s court ‘order’ has not been based upon the ‘rule of law’, then the public cannot be expected to respect it.  If Judges don’t themselves follow the ‘rule of law,’ by basing their decisions upon the ‘rule of law’ – then they are not  ‘setting an example’ to citizens which either safeguards the administration of justice, or enhances public confidence in the New Zealand judiciary.

14.       The Applicant holds that the real risk to the administration of justice stems from this court ‘order’ which has not been based on the ‘rule of law’ – but has been ‘made up’ by Justice Winkelmann, then enforced by the Solicitor-General David Collins QC, in such an discriminatory and arbitrary way as to constitute an abuse of power which cannot be justified in a free and democratic society.”

_______________________________________________________________________________
I look forward to your assistance in ‘facilitating access to justice’ and accepting for filing the ‘Application’ which you have already received.

Please confirm that the ‘Civil’ jurisdiction of the Auckland High Court is the proper body with which to file this ‘Application’. It would greatly assist me, if this could be done before 12 noon Wednesday 13 July 2011, in order to  assist in the facilitation of access to justice in  this arguably very significant matter of public interest.

I am attempting  to ‘do things in a proper way’, and respectfully look forward to your guidance and assistance in expediting the initiating of these proceedings.

Yours sincerely,

Penelope Mary Bright
(Penny Bright)

Media Spokesperson

Water Pressure Group

Judicially recognised ‘Public Watchdog’ on Metrowater, water and Auckland regional governance matters.

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waterpressure.wordpress.com

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Ph 00 64 09 846 9825

___________________________________________________________

________________________________________________________________________________

WORDING OF THE ABOVE-MENTIONED ‘APPLICATION FOR ORDER’ WHICH HAS NOT (YET) BEEN ACCEPTED FOR FILING:
_________________________________________________________________________

 

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY                   CIV 2011-404-

BETWEEN               PENELOPE MARY BRIGHT

                                        Applicant
AND                             THE QUEEN

                                        Respondent

---

                                                                   APPLICATION FOR ORDER

---

To The Registrar of the High Court at Auckland, and
To Crown Law on behalf of the respondent.

This document notifies you that –

1.The applicant, Penelope Mary Bright, will on ________________  2011 apply to the court for orders:

1.1   Revoking, lifting, or ruling as legally invalid, the alleged suppression order of Winkelmann J, which purports to prevent the New Zealand public, and the world at large, from knowing about Her Honour’s Judgment granted that same day in18 criminal prosecutions (CRI2007-085-7842, CRI2007-085-7843, CRI2007-085-7840, CRI2008-004-9108, CRI2008-004-20747, CRI2007-004-23065, CRI2008-004-20022, CRI2007-004-23068, CRI2007-004-23069, CRI2008-004-20748, CRI2007-004-23066, CRI2008-004-20045, CRI2007-063-4445, CRI2007-063-4441, CRI2007-054-4999, CRI2007-063-4472, CRI2008-070-1415, CRI2008-404-342), known collectively as “the Operation 8 prosecutions”.

 

1.2   Revoking, lifting, or ruling as legally invalid, the Minute of Winkelmann J dated 21 December 2010; to the extent that “Minute” intends to – or results in – the New Zealand public or word at large from knowing relevant facts in the prosecution or reasons for suppressing all of Her Honour’s 9 December 2010 Judgment in the Operation 8 prosecution, including such basic and important information as the fact of their indictment on charges.¹

 

ON THE GROUNDS:

2.         It has not been established in the body of the judgment that the Judge had, in fact, made such a suppression order.  The suppression wording was apparently added later by a member of the court staff.

3.         There is no basis in law to suppress a court judgment resulting from a criminal prosecution.  Such judicial powers are limited to the evidence adduced, the submissions made, publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses under s 138 of the Criminal

Justice Act 1985.

_____________________________________

 

^{1  Refer  to paragraph [1] of the Judgment of Winkelmann J dated 9 December 2010, “Operation 8 prosecutions”}

 _____________________________________

 

4.    s 138 of the Criminal Justice Act 1985 states:

      138    Power to clear court and forbid report of proceedings

…….

(5)    The powers conferred by this section to make orders of any kind described in subsection (2) are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.

[Bold and emphasis added]

5.         It is a violation of natural justice to attempt to enforce a suppression order, with criminal penalties, against the public at large (i.e. not parties to the proceeding) for commenting on, or disseminating, a judgment, without the right to be heard, in a free and democratic society.

6.         Similarly, it is an unreasonable restriction on the statutory right of freedom of expression guaranteed under the New Zealand Bill of Rights Act 1990 for New Zealand citizens to face prosecution and be threatened with loss of their liberty simply for disseminating or commenting on any court judgment – particularly cases pertaining to the ongoing “Operation 8 prosecutions”, which have already been the subject of significant public interest.

7.         The order is in direct conflict with the principles of open and transparent justice which have been the hallmark of an honourable and just court system in every egalitarian society, because

it effectively makes the judgment secret and unavailable to public scrutiny.

8.         The subject suppression order violates a broader interest – that of significant public interest – and the conflict of Justice Winkelmann’s alleged suppression order against this broader public interest has been confirmed in correspondence between the Crown Prosecutor, Mr Burns, in the Operation 8 prosecutions and the High Court in which the alleged suppression order originates.

9.         It is relevant to the grounds of this application that Justice Winkelmann gave no reasons for the alleged suppression order, if indeed it was Her Honour’s order, for concealing the public court judgment from the New Zealand public and the world at large. Justice cannot ‘be done or be seen to be done’, if the judgment of ‘what was done’, and ‘why it was done’ is deliberately hidden from the public.

10.       A court “Minute” is an administrative direction of the court which is not publicly reported and can only affect actual parties to the litigation.  In law, it cannot be used to contravene the legal right of the public’s right to know, let alone be used to imprison NZ citizens.  Such Minutes are not disseminated to the public at large. This underscores the patent injustice of such a judicial tool.

If anyone should have been obliged to follow ‘lawful due process’, in order to prevent a real risk to the administration of justice, then it should have been the Judge herself.

11.       The risk to personal liberty against citizens of New Zealand is unacceptable, if the alleged suppression order is allowed to stand.  The threat to personal liberty is evident by the recent prosecution of the legal news website publisher Vince Siemer, who is currently facing imprisonment as a sole and direct result of publishing this public court judgment. ²

12.       As the applicant has disseminated details regarding this 9 December 2010 judgment to the public, as well as engaged in commentary regarding it, she faces potential prosecution by the State unless the court suppression order – if it is determined by this Honourable Court to be an actual order – is allowed to stand.

13.       If Justice Winkelmann’s court ‘order’ has not been based upon the ‘rule of law’, then the public cannot be expected to respect it.  If Judges don’t themselves follow the ‘rule of law,’ by basing their decisions upon the ‘rule of law’ – then they are not  ‘setting an example’ to citizens which either safeguards the administration of justice, or enhances public confidence in the New Zealand judiciary.

14.       The Applicant holds that the real risk to the administration of justice stems from this court ‘order’ which has not been based on the ‘rule of law’ – but has been ‘made up’ by Justice Winkelmann, then enforced by the Solicitor-General David Collins QC, in such an discriminatory and arbitrary way as to constitute an abuse of power which cannot be justified in a free and democratic society.

This application is made in reliance upon the Criminal Justice Act 1985, the New Zealand Bill of Rights Act 1990, fundamental principles of natural justice; Company v Attorney-General of Trinidad and Tobago, Hogan v Hinch [2011] HCA 4, Couch v Attorney-General (No 2), Transport Accident Investigation Commission v Wellington District Court [2008] NZAR 595, the Laws of New Zealand “Criminal Procedure” citation 103,  Lewis v Wilson and Horton [2000] 3 NZLR 546(CA), Redmond-Bate v Director of Public Prosecutions 163 JP 789 [1999], Crim LR 998, 7 BHRC 375 [2000] HRLR 249; the legally balancing exercise engaged in Duff v Communicado [1996] 2 NZLR 89, Shaylor [2002] UKHL 11, [2003] 1 AC 247, The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Nov 1996, Application 22954/93: Ahmed v United Kingdom (1998) 29 EHRR 1, ECtHR, at para 7, Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, Lester and Pannick- Human Rights Law and Practice (3rd edition 2009) Para 4.10.30, R v Togia HC Wellington, Clifford J, CRI-2007-485-37, Brooks v DPP [1994] 1 AC 568, 528G, T v Regional Intellectual Care Agency [2007] NZAR 643, [1996] 3 S.C.R 480; equity and good conscience and the inherent jurisdiction of the Court to maintain the rule of law and protect its processes.

______________________________________________

^{2 Solicitor-General v Vince Siemer  CIV2010 404 8559}