Burrows v Solicitor-General - [2018] NZHC 2092

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2018-454-000029

[2018] NZHC 2092

BETWEEN
WAYNE JOHN BURROWS

Appellant

AND

THE SOLICITOR-GENERAL

Respondent

Hearing: 1 August 2018

Counsel:

Appellant in person

J J Harvey for Respondent

Judgment:

15 August 2018

JUDGMENT OF COLLINS J

[Appeal against finding of contempt in District Court]

Introduction

[1] Two issues are raised by Mr Burrows’ appeal from a decision of Judge D G Smith in which the Judge held Mr Burrows in contempt of court. Those issues are:

(1)Did the Judge err in finding Mr Burrows’ conduct constituted contempt of court? and

(2)Did the Judge provide Mr Burrows with an adequate opportunity to present his defence before finding him in contempt?

[2] The second of these issues engages the rights affirmed by ss 25(e) and 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA) which provide that anyone

BURROWS v THE SOLICITOR-GENERAL [2018] NZHC 2092 [15 August 2018]

charged with an offence has the right “to present a defence” and to the “observance of the principles of natural justice”.

Background

[3] Mr Burrows applied for a restraining order under the Harassment Act 1997 against Ms Thomson. She had previously obtained a restraining order against Mr Burrows.1 On 15 March 2018, a hearing was held in the District Court at Palmerston North to consider an application by the Police to strike out Mr Burrows’ application on the grounds it was “frivolous or vexatious or an abuse of the procedure of the court”.2 Mr Burrows attended court to oppose that application.

[4] Judge Smith concluded Mr Burrows’ application should be struck out.3 Mr Burrows has appealed that decision. In a judgment that is being delivered contemporaneously with this judgment, I have dismissed Mr Burrows’ appeal from the finding that his application for a restraining order was frivolous or vexatious or an abuse of the procedure of the court.4

[5] The District Court hearing on 15 March 2018 commenced at 2.57 pm. There were some brief introductory exchanges between Judge Smith and Mr Burrows. The transcript then records the following exchanges, commencing at about 3.00 pm:

THE COURT:

Would you please stand, would you please stand?

MR BURROWS:

I am standing Sir.

THE COURT:

You’re leaning on the font.⁵

MR BURROWS:

Yeah that’s a form of standing.

1      Thomson v Burrows [2017] NZDC 5681.
2      Harassment Act 1997, s 32.
3      Burrows v Thomson [2018] NZDC 5020.
4      Burrows v Thomson [2018] NZHC 2093.
5      Possibly meant to be “front”.

THE COURT:

Will you please stand.

MR BURROWS:

I am standing.

THE COURT:

I’m not having people slouching around, would you please stand at the desk –

MR BURROWS:

I’m not having people talk to me the way you’re talking to me Sir. I’ll stand the way I want.

THE COURT:

If, thank you you’ll stand –

MR BURROWS:

Don’t be abusive, last time I came to your hearing –

THE COURT:

Take your…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burrows v Solicitor-General

Details

AGLC: Burrows v Solicitor-General [2018] NZHC 2092
Case: [2018] NZHC 2092
Decision Date: 15 August 2018

CaseChat Overview and Summary

In Burrows v Solicitor-General, the High Court of New Zealand dismissed the appellant’s appeal against a finding of contempt by the District Court. Mr Burrows had applied for a restraining order under the Harassment Act 1997 against Ms Thomson. Ms Thomson had previously obtained a restraining order against Mr Burrows. A hearing was held in the District Court to consider an application by the Police to strike out Mr Burrows’ application on the grounds it was frivolous or vexatious or an abuse of the procedure of the court. Mr Burrows attended court to oppose the application. The District Court hearing commenced with some brief introductory exchanges between Judge Smith and Mr Burrows. The transcript then records exchanges between the Judge and Mr Burrows about how Mr Burrows was standing and where he was placing his hands. Mr Burrows called Judge Smith “abusive”, “pathetic” and an “abusive psychopath”. He dismissed the Judge’s assessment of a point of law as “bullshit” and said perhaps he would get the Judge “a dictionary for Christmas, [as the Judge didn’t] seem to understand simple words like ‘stand’”. The Judge held Mr Burrows in contempt of court and he was detained in the court cells for close to 40 minutes. Mr Burrows apologised and was allowed to return to the courtroom.

Mr Burrows’ appeal had two issues: (1) Did the Judge err in finding Mr Burrows’ conduct constituted contempt of court? and (2) Did the Judge provide Mr Burrows with an adequate opportunity to present his defence before finding him in contempt? The second of these issues engaged the rights affirmed by ss 25(e) and 27(1) of the New Zealand Bill of Rights Act 1990 which provide that anyone charged with an offence has the right “to present a defence” and to the “observance of the principles of natural justice”.

The Court held that the Judge did not err in finding Mr Burrows’ conduct constituted contempt of court. Mr Burrows’ words and conduct, including calling Judge Smith an “abusive psychopath”, “pathetic”, dismissing his assessment of a point of law as “bullshit” and saying he lacked the ability to understand a simple word such as “stand” were examples of offensive words and/or words uttered to ridicule or belittle Judge Smith in his court so as to undermine the standing of the Court and/or administration of justice. Insults offered in the course of challenging or defying the authority of the Court will be contemptuous. Mr Burrows’ language was insulting. Words that are spoken “intentionally” or “deliberately” with the aim of insulting the Judge, then they will have been uttered “wilfully”. Mr Burrows was either trying to offend Judge Smith or endeavouring to ridicule and belittle him so as to undermine the Court and/or the administration of justice.

The Court also held that the Judge provided Mr Burrows with an adequate opportunity to present his defence before finding him in contempt. The transcript revealed that Judge Smith gave Mr Burrows two warnings that his behaviour would result in a finding of contempt. The Judge explained to Mr Burrows that he was to address the Court in a civilised manner and that he had failed to do so. The Judge also warned Mr Burrows very specifically that if he was held in contempt he would be placed in the cells. Mr Burrows had the opportunity to modify his conduct. He declined to do so. There was no realistic opportunity for Judge Smith to pause and provide Mr Burrows with the opportunity to obtain legal advice before he was held in contempt. In these circumstances, no miscarriage of justice occurred.

Mr Burrows’ appeal against the finding of contempt by Judge Smith was therefore dismissed.

Orders