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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-203 [2013] NZHC 2217
BETWEEN DAVID JAMES MCALLISTER Appellant
ANDSOLICITOR-GENERAL Respondent
Hearing: 12 August 2013
Appearances: D P H Jones QC and K Venning for Appellant
M Downs and A R van Echten for Respondent
Judgment: 29 August 2013
JUDGMENT OF LANG J
This judgment was delivered by me on 29 August 2013 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
DAVID JAMES MCALLISTER v SOLICITOR-GENERAL [2013] NZHC 2217 [29 August 2013]
INDEX
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…
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- [2013] NZHC 2217
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Background
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Evidence
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