Introduction [1] Issues on appeal [4] The events leading up to the hearing on 11 July 2013 [6] The hearing on 11 July 2013 [17] The acts comprising the alleged contempt [21] The Judge’s decision [23] Was the Judge entitled to conclude that Mr McAllister was in contempt? [24] The first allegation: refusal to take the oath [31]
Contempt under s 365(1)(b) – wilfully interrupting the criminal trial [32]

Contempt under s 365(1)(c) – wilfully disobeying an order or direction of the court
Did the Judge breach the principles of natural justice when he sentenced
Mr McAllister to a term of imprisonment?

[33]

The arguments [41]
Relevant principles [44]

This case [49]

Was Mr McAllister in contempt of court having regard to the evidence that is now available?
The new evidence

[58]

Mr McAllister  [59]
Mr Best  [67] Ms Deacon  [68] Decision  [70]
The second allegation: Mr McAllister’s subsequent comments  [78]
Was the sentence manifestly excessive?  [82]

Summary: result [91]

Introduction

[1] On 10 July 2013, Mr McAllister was selected to serve on a jury that was to hear a criminal case in the Auckland District Court. The case was to be presided over by Judge Dawson. Mr McAllister refused to take the oath or affirmation required to be taken by all persons who are selected to serve on a jury, and was stood down from the jury panel. After it subsequently became apparent that it would not be possible to select a juror to replace him, Mr McAllister relented and told the Judge he could serve on the jury after all. The Judge declined Mr McAllister’s offer, and aborted the trial.

[2] The following day the Judge held Mr McAllister to be in contempt for his acts, and sentenced him to ten days imprisonment.

[3] Mr McAllister appeals to this court1 against the Judge’s determination that he was in contempt of court. He also contends that the penalty the Judge imposed was manifestly excessive.

Issues on appeal

[4] Counsel for Mr McAllister advances three issues on appeal. They are:

(i) Mr McAllister’s acts did not amount to contempt in terms of

s 365(1) of the Criminal Procedure Act 2011;

(ii)The procedure the Judge adopted was in breach of the principles of natural justice;

(iii)Viewed in the light of the information that is now available, the sentence was manifestly excessive.

[5] In order to properly understand these issues, it is…

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 McAllister v Solicitor-General

Details

AGLC: McAllister v Solicitor-General [2013] NZHC 2217
Case: [2013] NZHC 2217
Decision Date: 29 August 2013

CaseChat Overview and Summary

David James McAllister (the appellant) was summoned for jury service at the Auckland District Court. He refused to take the oath or affirmation required to be taken by all persons selected to serve on a jury. The presiding judge, Judge Dawson, held the appellant to be in contempt and sentenced him to ten days imprisonment. The appellant appealed to the High Court against the judge's determination that he was in contempt of court and the penalty imposed. The issues on appeal were whether the appellant's acts amounted to contempt under s 365(1) of the Criminal Procedure Act 2011, whether the procedure adopted by the Judge was in breach of the principles of natural justice, and whether the sentence was manifestly excessive. The Court found that the appellant's refusal to take the oath amounted to contempt of court, but his subsequent assertion that he could act impartially as a juror was not contemptuous. The Court held that the Judge's procedure was in breach of the principles of natural justice because the appellant was not given sufficient time to properly address the Judge's concerns about his explanation. The Court concluded that the sentence of imprisonment was manifestly excessive and substituted a fine of $750.

Orders