Para No Introduction [1] Background [6] The hearing in the District Court [14] The appeal to the High Court[18] The test for leave for a second appeal [25] The provisions relating to a second appeal against conviction for contempt [26] Analysis [32] Whether leave should be granted in this case [46] The competing contentions [50] Our assessment [54] Result [80]
Introduction
James McAllister was found in contempt of court in terms of s 365 of the Criminal Procedure Act 2011 (the Act). The finding of contempt related to his refusal in the District Court to take the oath or affirmation required to be taken by those selected to serve on a jury[1] and his subsequent advice, contrary to an earlier statement, that he could be impartial. He was sentenced by Judge Dawson to 10 days imprisonment.
[1]Juries Act 1981, s 20; and see form 2 of the Jury Rules 1990.
Under s 365(1)(b) of the Act a person is in contempt of court if he or she “wilfully” interrupts court proceedings or “otherwise misbehaves in court”. It also constitutes contempt to “wilfully and without lawful excuse” disobey any order or direction of the court in the course of the hearing of a proceeding.[2]
[2]Criminal Procedure Act 2011, s 365(1)(c).
Mr McAllister appealed to the High Court against the determination that he was in contempt of court. He also challenged the penalty imposed. In the High Court, Lang J found that Mr McAllister was in contempt when he refused to take the oath but that he was not in contempt for subsequently saying he could serve impartially on the jury.[3] The appeal against sentence was allowed and the sentence of imprisonment quashed. In its place Mr McAllister was fined the sum of $750.
Mr McAllister now seeks leave to appeal to this Court under s 264 of the Act. The application for leave raises an initial question about the test for leave under s 264 as this is the first case in this Court to consider that question. In terms of whether leave should be granted, the proposed appeal raises two issues. The first focuses on the factual findings about Mr McAllister’s reasons for refusing to take the oath and the second relates to the meaning of “wilfully” in s 365 of the Act.
We first set out the…
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.
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Details
AGLC
McAllister v R [2014] NZCA 175
Case
[2014] NZCA 175
Decision Date
CaseChat Overview and Summary
The applicant, James David McAllister, applied for leave to appeal against his conviction for contempt of court in the High Court. The applicant's appeal against his conviction was dismissed in the High Court, but he appealed the sentence imposed on him, which was reduced from 10 days imprisonment to a $750 fine. The Court of Appeal dismissed the application for leave to appeal. The Court of Appeal held that the application for leave to appeal did not meet the threshold for leave because the facts found by the Judge in the District Court showed that the applicant's actions were in contempt, and the Court of Appeal did not consider the meaning of "wilfully" in the context of contempt of court in New Zealand legislation. The Court of Appeal also noted that there were concurrent findings of fact as to the applicant's intention, which made it unlikely that the proposed appeal would succeed. The Court of Appeal concluded that neither limb in s 264(2) of the Act was met in this case, and the application for leave to appeal was dismissed.