PRESS RELEASE: Penny Bright NZ ‘Whistleblower/ Anti-Corruption Campaigner’: “Are NZ Judges effectively ‘out of control?'”
19 July 2011
PRESS RELEASE: Penny Bright NZ ‘Whistleblower/ Anti-Corruption Campaigner’:
“Are NZ Judges effectively ‘out of control?'”
New Zealand is ‘perceived’ to be the ‘least corrupt country in the world’ (along with Denmark and Singapore), according to Transparency International’s 2010 ‘Corruption Perception Index’.
http://www.transparency.org/policy_research/surveys_indices/cpi/2010
Therefore – shouldn’t New Zealand arguably be the most ‘transparent’ country in the world?
So – how come in New Zealand, our Judges don’t have:
An enforceable ‘Code of Conduct’?
A ‘Register of Pecuniary Interests’?
A mandatory requirement to record all court proceedings?
(How can ‘justice be done or be seen to be done’ – if there is no court record of what was done? How can a ‘court of record – not keep a record? )
On top of this – some New Zealand Judges – at the highest levels – apparently don’t think that the ‘Rule of Law’ applies to them.
How can it be lawful, for some New Zealand Judges to make ‘court orders’ based on ‘judicial discretion’ – not the ‘Rule of Law’?
How can it be lawful, for some New Zealand Judges to just ‘make it up’?
I, Penny Bright, publicly-acknowledged ‘anti-corruption campaigner’, have been trying for days to file in the Auckland High Court, an ‘Application for Order’ to get a Judge’s ‘suppression order’ lifted.
This was a ‘suppression order’ – which suppressed the JUDGMENT itself and the REASONS for that judgement.
Under New Zealand law – s 138 of the Criminal Justice Act 1985 – there is no lawful right for a New Zealand Judge to do this.
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]
The ‘suppression order ‘ to which I am referring, is that of Judge Winkelmann, New Zealand’s Chief High Court Judge, made in December 2010, where she not only denied the 18 defendants in the ‘Operation 8’ (NZ’s first so-called ‘terrorist’ case) – their statutory right to trial by jury, but then ordered the Court staff to suppress the judgment.
After all the ‘MAN ON THE MOON’ headlines from 15 October 2001 which burst across world headlines – the continued proceedings have now become ‘top secret’? Not only were the public not allowed to know that the ‘Operation 8 ‘ defendants had been denied their right to trial by jury – but the public were not allowed to know that they had been denied their right to trial by jury?
How can this be right?
Vince Siemer,(in my considered opinion New Zealand’s leading ‘whistleblower’ exposing the lack of judicial transparency, accountability and judicial ‘conflicts of interest’), didn’t think this was right, and did something about it.
Vince Siemer defended the public’s right to know Judge Winkelmann’s decision and her reasons for it – by publishing her judgment on his website, along with his story ‘Judge or be Judged’ 10 December 2010 http://www.kiwisfirst.co.nz/index.asp?PageID=2145845331
(For a more detailed story by Vince Siemer about the ‘Operation 8’ case – “A Public protest away from tyranny”
A PUBLIC PROTEST AWAY FROM TYRANNY
THE OPERATION 8 SAGA
______________________________
(A documentary has been made, called ‘Operation 8’, now playing in NZ cinemas, which examines the ‘anti-terror’ raids of October 2007.
http://www.flicks.co.nz/movie/operation-8/ )
______________________________________________________________
Contempt proceeding against Vince Siemer were then initiated by the ‘second highest lawyer in the land’ – the Solicitor-General of New Zealand David Collins QC, who has effectively ‘backed up’ the arguably unlawful decision of Judge Winkelmann to suppress her judgement and the reasons for it.
Vince Siemer has been found guilty of ‘contempt of court’ and now faces imprisonment for so doing, as ruled in the following decision of the High Court, Solicitor-General of New Zealand v Vincent Ross Siemer CIV-2010-404-8559 MacKenzie and Simon JJ 4 July 2011.
Interestingly, THIS judgment has not been suppressed, yet it makes reference to Judge Winkelmann’s Judgment – which was.
Which arguably helps to show how patently ridiculous it was to suppress this original judgement in the first place?
I have not just published press releases about this matter on my blog (https://waterpressure.wordpress.com) , I have actively and vigorously disseminated this information to all New Zealand MPs; NZ media, all NZ Councils, all NZ Unions, a wide range of social justice and human rights activists.
Surely, if we are ‘all equal before the law’ – I too, should be facing contempt proceedings?
Or has New Zealand’s second highest lawyer in the land – the Solicitor-General David Collins QC – arguably maliciously and vindictively abused his power and authority, in order to continue his on-going persecution of Vince Siemer?
If I too, am not going to equally face ‘contempt of court’ proceedings for arguably doing worse than Vince Siemer – then it must be obvious that Vince Siemer is being ‘picked on’ and unjustifiably victimised.
In my considered opinion, Judge Winkelman’s arguably unlawful suppression order must be lifted forthwith.
Once Judge Winkelman’s arguably unlawful suppression order is lifted, then, in my considered opinion, all proceedings against Vince Siemer in this matter, must be dropped, including his upcoming sentencing for ‘contempt of court’.
In my considered opinion, what then needs to happen is an inquiry into the actions of the Solicitor-General against Vince Siemer; whether he has abused his power and authority; including possible ‘Contempt of the House’, through his involvement in the decision of the former Justice and Electoral Select Committee in arriving at a decision not to ‘conduct an inquiry into the committal for imprisonment of Mr Vincent Siemer for contempt of court’ on the basis that the matter was ‘subjudice’ – at a time it was not.
I take full personal responsibility for my actions, as a ‘whistleblower’ in this matter, and am prepared to face whatever consequences may be forthcoming.
However – I equally expect the Solicitor-General to do the same.
The first step in this process is to get the (unlawful) ‘suppression order’ of Judge Winkelmann removed.
The path for so doing was outlined in the above-mentioned decision of Judges MacKenzie and France, where they stated:
“[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.”
However – this ‘path’ has not been a clear one to follow, given that this is effectively trying to ‘undo’ a ‘court order’ which has not itself been based upon the clear, open, written, ‘Rule of Law’.
Arbitrary decisions by Judges, based upon ‘judicial discretion’ ie: ‘rules’ which only exist inside their heads, are arguably neither open, transparent nor accountable.
Isn’t that why we have the ‘Rule of Law’?
Wouldn’t you think that if there was anyone who should be expected to follow the ‘Rule of Law’ – it would be the Chief High Court Judge – not to mention the second- highest lawyer in the land – the Solicitor-General of New Zealand?
Today, Tuesday 19 July 2011, I will again attempt to file in the Auckland High Court, an ‘Application for Order’ to get Judge Winkelmann’s suppression order ‘removed’.
May ‘justice be done and be seen to be done’ and the ‘Rule of Law’ upheld.
Penny Bright
Media Spokesperson
Water Pressure Group
Judicially recognised ‘Public Watchdog’ on Metrowater, water and Auckland regional governance matters.
Anti-corruption campaigner’
Attendee: Australian Public Sector Anti-Corruption Conference (APSACC) 2009 (Brisbane, Australia)
Attendee: Transparency International 14th Anti-Corruption Conference 2010 (Bangkok, Thailand)
Auckland Mayoral candidate 2010
Botany by-election candidate 2011
Howick Ward (Auckland Council) by-election candidate 2011
Ph 00 64 09 846 9825
_______________________________________________________________
WHAT I WILL BE ATTEMPTING TO FILE TODAY IN THE AUCKLAND HIGH COURT:
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CIV 2011-404-
BETWEEN PENELOPE MARY BRIGHT
Applicant
AND THE ATTORNEY-GENERAL
Respondent
ORIGINATING APPLICATION FOR ORDER
Filed by Penelope M. Bright
86 A School Road
Kingsland, Auckland
Phone/Facsimile:(09) 846 9825
To The Registrar of the High Court at Auckland, and
To Crown Law on behalf of the respondent.
This document notifies you that –
Under The Judicature Act 1908 Schedule 2 High Court Rule
19.5Court may permit proceeding to be commenced by originating application
(1) The court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application.
(2) The court’s permission may be sought without notice.
(3) The proposed originating application must be filed with an application for permission under this rule.
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 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 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
This application relies on the decision of the High Court in Solicitor-General of New Zealand v Vincent Ross Siemer CIV-2010-404-8559 MacKenzie and Simon France JJ, 4 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.”
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.
2.
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. The Judge herself has a duty/ lawful obligation/ to follow ‘lawful due process’ in order to prevent a real risk to the administration of justice
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.
____________________________________________________________________
2 Solicitor-General v Vince Siemer CIV2010 404 8559
3.
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.
___________________________________
Penelope Mary Bright
(aka Penny Bright)
Cc: Rodney Harrison QC, on behalf of the Operation 8 defendants
Mr Ross Burns, Meredith Connell, prosecutor in the Operation 8 trial
________________________________________________________
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CIV 2011-404-
BETWEEN PENELOPE MARY BRIGHT
Applicant
AND THE ATTORNEY-GENERAL
Respondent
INTERLOCUTORY APPLICATION FOR PERMISSION TO FILE AN
ORIGINATING APPLICATION FOR ORDER
Filed by Penelope M. Bright
86 A School Road
Kingsland, Auckland
Phone/Facsimile:(09) 846 9825
To The Registrar of the High Court at Auckland, and
To Crown Law on behalf of the respondent.
Under The Judicature Act 1908 Schedule 2 High Court Rule
19.5Court may permit proceeding to be commenced by originating application
(1) The court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application.
(2) The court’s permission may be sought without notice.
(3) The proposed originating application must be filed with an application for permission under this rule.
May it Please the Court,
It is not clear, how exactly to commence an ‘Originating Application’ for an ‘Order’ of this type.
However, having been assisted by the Registrar’s direction to the above-mentioned High Court Rule 19.6 of The Judicature Act 1908 Schedule 2, I, The Applicant, Penelope Mary Bright, hereby seek permission, without notice, on ___________________________ 2011 to file the attached
‘Originating Application for Order’.
___________________________________
Penelope Mary Bright
(aka Penny Bright)
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