Heta v The Queen

[2015] NZHC 144

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-000010 [2015] NZHC 144

BETWEEN

RAYMOND TE MUTUTERE HETA

Appellant

AND

THE QUEEN Respondent

Hearing:	11 February 2015
Appearances:	S Robb for Appellant A D Hill for Respondent
Judgment:	12 February 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 12 February 2015 at 11.30 am

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

HETA v R [2015] NZHC 144 [12 February 2015]

[1]      Following an appearance in the District Court at Rotorua on 27 January 2015

Judge J J Weir found Raymond Heta guilty of contempt for “using extremely foul language and making sure that [he was] heard by everyone” and sentenced him to one month’s imprisonment.1     Mr Heta appeals both the conviction and sentence, asserting that his conduct did not amount to contempt and that the sentence was manifestly excessive.

[2]      Contempt of court is governed by s 365 of the Criminal Procedure Act 2011 which applies to any person who:

(a)       Wilfully insults a judicial officer or a Registrar or any officer of the court or any juror or any witness during his or her sitting or attendance in court or in going to or returning from the court; or

(b)       Wilfully interrupts the proceedings of a court or other misbehaves in court; or

(c)       Wilfully and without lawful excuse disobeys any order or direction of the court in the course of the hearing of any proceeding.

[3]      Section 365(2) permits a judicial officer to order the person detained until the court rises and, if he or she thinks fit, to impose a sentence not exceeding three months’ imprisonment or a fine not exceeding $1,000.

[4]      Near identical provisions appear at s 112 of the District Courts Act 1947 and s 56C of the Judicature Act 1908.  In his oral judgment the Judge did not identify which provision he was proceeding under.

Did Mr Heta commit contempt?

[5]      The circumstances of the alleged offending are recorded briefly by Judge

Weir in his sentencing notes:

The other issue is your contempt of Court, using extremely foul language and making sure that you were heard by everyone.   That does amount to contempt.   You have now apologised for that and I take account of your apology.  But nevertheless, the message has to be sent out to people like you who think they can act however they want to in this court.  That is not going to happen. When it does happen it is going to be dealt with firmly.

1      Ministry of Justice v Heta [2015] NZDC 1061.

[6]      Ms Robb, who appeared for Mr Heta in the District Court and on this appeal, set out her recollection of events in her submissions:

Mr Heta’s case had been stood down by Judge Weir for further enquiries to be made in relation to his active charges.  As Mr Heta was backing out of court he attempted to communicate with members of his family seated in the public gallery.   In doing so, he used a swear word, but it was clear from the context of his comment that the comment was not intended to be offensive (Mr Heta described the language used as that which is ordinarily used in his social setting).  It was not directed at the Court or related to proceedings.  Mr Heta’s case had finished for that part of the morning only, without difficulty, and the next case had not yet been called.

After Mr Heta was taken downstairs His Honour suggested that counsel talk to Mr Heta about his language – no mention was made about a contempt allegation however.

In talking to Mr Heta following, it was clear that Mr Heta had not considered his language might be inappropriate (he noted that it was an offhand comment) but after speaking to counsel agreed that swear words were not appropriate in a courtroom.  Counsel conveyed this acknowledgment to His Honour when the matter was recalled.  When Mr Heta’s matter was recalled it was a surprise when His Honour then found that there had been a contempt and sentenced Mr Heta immediately.

[7]      A transcript of the hearing has been obtained.  However, it does not contain anything that could be described as foul language or that could otherwise amount to a contempt.  Ms Robb made enquiries with the High Court regarding the transcript. It  appears  that  somebody  in  the  Court  coughed  at  the  time  the  alleged  “foul language” was used and as a result it was not audible in the recording.

[8]      What the transcript shows is that during discussions between counsel and the Court regarding a sentence indication Mr Heta appeared to be communicating with a woman in the back of the Court. At the end of the discussion the Judge said:

We will call him back later on for contempt, in any event.   I am not putting up with that behaviour.

[9]      The matter was stood down and recalled about 20 minutes later.  The Judge inquired of counsel whether there had been an opportunity to discuss “his contempt.” Ms Robb confirmed that, telling the Judge that “I did mention to him Sir that bad language in court is not appropriate.”   Mr Heta then apologised “Sorry mister.”

There was further discussion regarding a sentencing date and the Judge then dealt summarily with the contempt issue as I have set out above.

[10]     Based on the available information, I proceed on the basis that during the hearing Mr Heta spoke to someone at the back of the courtroom and in doing so used a single swear word.  The comment was directed to that person and was not spoken for the purposes of abuse but merely as part of Mr Heta’s usual manner of speech.

[11]     Consideration of Mr Heta’s conduct needs to be made with the purpose of the summary jurisdiction for contempt firmly in mind.   In Solicitor-General v Radio Avon Ltd the Court of Appeal held that the purpose of the law as to contempt is to protect the administration of justice rather than the dignity of judges:2

In Morris v The Crown Office (1971) All ER 1079 (CA) the rationale of the contempt jurisdiction was explained, being to enable courts to safeguard the public interest in the due and proper administration of justice. The dignity of judicial officers is not the focus. Rather the concern is to ensure that courts are placed to immediately and effectively cope with the interruption and disobedience so that the work of the Court is not impeded and, ultimately the rule of law is not imperilled. The Court of Appeal described the power as one to be used sparingly and only in serious cases.

[12]     Consideration  of  recent  comparable  cases  shows  that  convictions  for contempt generally follow sustained and deliberate disobedience or discourtesy.3

This reflects the requirement of wilfulness in s 365.

[13]     Mr Hill, for the Crown, submitted that the nature of any alleged contempt and its  context  can  be  difficult  to  accurately  discern  on  an  appeal.    I  accept  this. However, the essential nature of Mr Heta’s conduct does not seem in dispute.   In particular, it is evident from the transcript itself and even from the Judge’s own description that the single objectionable word used was not directed towards the Judge and was, indeed, not even used in anger.   In these circumstances I consider that Mr Heta’s conduct fell below the threshold that one could legitimately view as contempt.  As a result, I consider that the Judge fell into error in characterising the

conduct as such.

2      Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA) at 229.

3      See e.g. O’Connor v Police [2014] NZHC 44; R v Rollo DC Whangarei CRI-2013-088-2381, 26

March 2014; De Montalk v District Court at Dargaville [2012] NZHC 444, [2012] NZAR 346;
Mihaka v Police [2010] NZAR 504 (HC).

[14]     The appeal against conviction is allowed and the conviction quashed.   It is

unnecessary to consider the sentence appeal.

P Courtney J