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McAllister v R [2014] NZCA 175; [2014] 2 NZLR 764 (9 May 2014)

Last Updated: 29 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Applicant
AND
 Respondent
Hearing:
25 February 2014
Court:
O’Regan P, Ellen France and Miller JJ
Counsel:
D P H Jones QC and K M Venning for Applicant M D Downs and A R van Echten for Respondent
Judgment:

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

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

[1] 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.
[2] 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]
[3] 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.
[4] 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.
[5] We first set out the background before addressing the test for leave and the proposed appeal.

Background

[6] Mr McAllister was summonsed to attend the Auckland District Court to undertake jury service. We adopt Lang J’s description of what happened after Mr McAllister arrived at the Court on Monday 8 July 2013.[4] As Lang J notes, Mr McAllister was not required for jury service that day but was asked to come back the following day at 9.45 am.
[7] A three-week trial was commencing on Tuesday 9 July and Mr McAllister was initially selected to serve on the jury in that case. The presiding Judge excused him from serving because of the effect that such a long trial would have on his livelihood as an engineer. Before excusing Mr McAllister, the Judge asked him whether he would be able to serve on a jury for a shorter period of time. Mr McAllister confirmed his willingness and ability to do that. Mr McAllister also told the jury attendant that he would be available to serve on shorter trials later in the week.
[8] Before the members of the pool were dismissed that afternoon, there was a further ballot to select 30 persons who would be required to return to Court the next day. Mr McAllister was one of those persons. He returned to the Court the next morning and went with other members of the jury pool called to the courtroom where Judge Dawson was to empanel a jury to try a criminal case. Mr McAllister was the ninth or tenth juror balloted to serve on that jury. When his name was called, Mr McAllister approached Judge Dawson and asked to be excused from serving on the jury as follows:

MR McALLISTER:

Afternoon. I wish to be excused please. (inaudible 12:55:02) selfemployed and a number of contracts have to be signed off (inaudible 12:55:09).

THE COURT:

That’s not a basis for being excused, Mr McAllister. Just take a seat in the jury panel please.

[9] After the remaining jurors were selected, the jury were asked to stand and take the required oath or affirmation that they would try the case to the best of their ability, and give their verdict according to the evidence. When the Registrar sought to obtain Mr McAllister’s assent to the oath, Mr McAllister responded that he thought he was “under duress” and did not know if he could be impartial. An exchange between Mr McAllister and the Judge followed over the course of which Mr McAllister explained that there were a number of reasons why he did not feel he should be there.
[10] Judge Dawson asked Mr McAllister to stand down and wait at the back of the courtroom. Mr McAllister did so and the Judge directed the Registrar to draw the name of a replacement juror from the ballot box. The Registrar advised the Judge that there were no more names left in the ballot box. The Judge then discussed what should occur next with counsel in chambers.
[11] While the Judge and counsel were out of the courtroom, Mr McAllister told the jury attendant that he wanted to speak to the Judge. When the Judge and counsel returned, there was a further exchange between the Judge and Mr McAllister in which Mr McAllister told the Judge that he could be impartial.
[12] At that point Judge Dawson told those assembled that he had come to the view it was not possible to proceed with the trial that day because there were not enough jury members. The members of the jury pool were dismissed for the day. They were asked to come back the next day so that a new jury could be selected to try the case, which Judge Dawson adjourned.
[13] The jury pool, including Mr McAllister, went back to the courtroom over which Judge Dawson was presiding on the morning of the next day, 11 July 2013. A new jury was selected. Whilst the jury were selecting their foreperson the Judge addressed Mr McAllister. The Judge told Mr McAllister he considered that on two occasions Mr McAllister’s behaviour amounted to contempt of court. Mr McAllister was remanded in custody. Judge Dawson arranged for the duty solicitor to see Mr McAllister having advised the duty solicitor of the circumstances giving rise to the alleged acts of contempt. Mr McAllister stayed in the courthouse cells for the rest of the day. During that time he received legal advice from the duty solicitor and he was also able to instruct present counsel to act on his behalf.

The hearing in the District Court

[14] There was a hearing later that day. In the course of this hearing, counsel for Mr McAllister explained that Mr McAllister’s refusal to take the oath had been prompted by his concern about work commitments he had made for the afternoon of 10 July and later in the week. Mr McAllister had made those commitments in the mistaken belief that he would not be required for jury service from 10 July onwards. He had realised after being selected as a juror that he would not be able to meet those commitments if he was required to serve on a jury for the balance of the week.
[15] The Judge responded that this was a different explanation to that which Mr McAllister had given the previous day. He also observed that Mr McAllister had said that he would not be able to deliver a fair and just decision as a juror, and that he had no basis for saying that.
[16] At the end of the submissions by Mr McAllister’s counsel, Judge Dawson delivered an oral decision in which he found Mr McAllister guilty of contempt. He then sentenced him to 10 days imprisonment.
[17] As we have noted, Mr McAllister appealed to the High Court.

The appeal to the High Court

[18] Evidence was filed in the High Court on the appeal from Mr McAllister himself. Evidence was also filed on behalf of Mr McAllister from Peter Best, a manager at Kordia New Zealand Ltd, by whom Mr McAllister was employed on a permanent part-time basis. Finally, Mr McAllister filed evidence from Patricia Deacon, a member of the Court staff responsible for dealing with the jury pool on 9 July 2013.
[19] Lang J considered Judge Dawson was entitled to find Mr McAllister’s refusal to take the oath was in contempt of court. The refusal was a deliberate interruption of the trial (s 365(1)(b)) which had the effect of stopping the trial “in its tracks”.[5] The refusal was also contempt in terms of s 365(1)(c) (wilful disobedience of the Judge’s direction) as it was implicit in the Judge’s direction that Mr McAllister take his seat in the jury box that he was “to comply with the obligations” imposed on jurors during the remainder of the jury selection process.[6]
[20] However, Lang J considered Judge Dawson should have adjourned proceedings to allow Mr McAllister to file evidence supporting his explanation. Lang J decided that the appropriate way to address this issue was to reconsider whether Mr McAllister was in contempt having regard to the new evidence filed in the High Court.
[21] After considering the new evidence, the Judge’s conclusion was that Mr McAllister’s refusal to take the oath was “motivated primarily by his concern about the consequences his role as a juror would have in respect of important work commitments that affected many other people”.[7] However, although this new evidence “significantly” lessened the seriousness of Mr McAllister’s conduct, Lang J did not consider it went so far as to lead to the conclusion that he had a lawful excuse for refusing to take the oath.[8] Rather, his concern was to ensure he could meet his work commitments.
[22] For these reasons, Lang J was not willing to disturb the Judge’s conclusion that Mr McAllister was in contempt when he refused to take the oath. However, a different view was taken on Mr McAllister’s offer to rectify the situation subsequently. The Judge saw this as a genuine offer to serve on the jury because by then Mr McAllister had rearranged his work schedule.
[23] As we have noted, Mr McAllister’s sentence appeal was allowed and a fine substituted.
[24] We turn to the application for leave to appeal.

The test for leave for a second appeal

[25] We first discuss the statutory scheme.

The provisions relating to a second appeal against conviction for contempt

[26] Appeals against conviction and/or sentence for contempt of court are dealt with under subpart 5 of pt 6 of the Act. For a second appeal such as this, leave from the court appealed to is required pursuant to s 264.[9] Leave to appeal must be refused unless the Court is satisfied that one or other of the two grounds stated in s 264(2) are established. It is helpful to set out s 264 in full, as follows:

264 Right of appeal against determination of first appeal court

(1) A person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a) the appeal involves a matter of general or public importance; or

(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[27] The same formula applies to second appeals against a number of other decisions, namely those relating to pre-trial decisions, conviction appeals, sentence appeals, appeals against decisions about costs orders, appeals against suppression orders and appeals on questions of law.[10] In relation to all of these second appeals, leave is required from the second appeal court, and the threshold for leave mirrors that in s 264(2).[11]
[28] Once leave is granted, the court is required to determine second appeals against a finding of contempt as appeals against conviction under subpart 3.[12] Section 267(1) also provides that s 240 (“appeal court to determine appeal”) and s 241 (“orders, etc, on successful appeal”) apply “as far as applicable and with the necessary modifications”.
[29] For present purposes, the relevance of the application of s 240 is that s 240(2) states that the second appeal court “must allow the appeal if satisfied that the appeal should be allowed on any of the grounds” in s 232(2). Section 232(2) relates to a first appeal against conviction and provides that an appeal must be allowed if the court is satisfied that:
[30] A “miscarriage of justice” in s 232(2) is defined in s 232(4) as meaning:

any error, irregularity, or occurrence in or relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[31] We add that there is provision for further appeals to the Supreme Court in s 269 of the Act. Section 269(1) provides that a party to a second appeal “determined” by this Court under subpart 5, may, with the leave of the Supreme Court, appeal to the Supreme Court “against the determination”. The appeal may be brought only on a question of law,[13] and the Supreme Court may allow an appeal “only if satisfied that the determination appealed against is wrong in law”.[14]

Analysis

[32] The leave provisions dealing with second appeals in the Act reflect a change. Previously, a second appeal to this Court was confined to a question of law which ought to be considered by reason of its general or public importance.[15] These criteria were strictly applied.[16] As we have seen, under s 264 there is no requirement for a question of law. Further, the leave requirements also entail consideration of an alternative limb, namely, that a miscarriage of justice may have occurred, or may occur unless the appeal is heard.[17] These changes mean that, in large measure, the test for an application for leave for a second appeal is in the same terms as that in s 13 of the Supreme Court Act 2003.
[33] Section 13 provides that the Supreme Court must not give leave to appeal unless satisfied leave is necessary “in the interests of justice”. Section 13(2) states, relevantly, that it is necessary in the interests of justice to hear and determine a proposed appeal if:

(a) the appeal involves a matter of general or public importance; or

(b) a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard; ...

[34] The only relevant difference between the wording in s 264 and that in s 13(2) is that the latter refers to a “substantial” miscarriage. In the context of a leave provision we do not see the omission of the word “substantial” as critical.[18] At the leave stage for a second appeal the court is only considering the likelihood of a miscarriage. The use of almost identical wording suggests that the provisions should be interpreted consistently and we agree with the submissions for the respondent that, in general, a consistent approach should be adopted.
[35] As the respondent submits, the legislative history also suggests that the intention was to align the criteria for leave on a second appeal. Given the clear statutory language, we need only note in this respect that the Bill as introduced maintained the distinctions in leave requirements between second appeals to the Supreme Court on the one hand, and the High Court and this Court on the other.[19] The current wording emerged following select committee consideration.[20]
[36] Adopting an approach consistent with that applied to s 13 of the Supreme Court Act would suggest, for example, that the threshold in s 264(2)(a) will be met where the proposed appeal gives rise to an issue of “general principle or of general importance in the administration of the criminal law by the Courts”.[21] An illustration of a matter of general or public importance is one raising an important question of law having broad application beyond the circumstances of the particular case.[22] By contrast, there are numerous illustrations in the leave decisions of the Supreme Court where leave has been declined on the basis that the application for leave raises issues in the nature of a “factual assessment that is specific to the circumstances of the case”[23] or the application of “well-established principles to a particular fact situation”.[24] This approach indicates that the expansion of the test to encompass questions of fact does not necessarily mean a more liberal standard is to be applied to questions of leave on a second appeal.[25]
[37] In terms of the miscarriage of justice limb, there are various ways of characterising the approach to be taken, for example, if there is an argument reasonably available that the court below is in error, that possibility would appear to come within s 264(2)(b), with the qualification we discuss in [38]. In the context of applying s 13 of the Supreme Court Act, the language used by that [26]urt varies26 and a prescriptive approach would be unhelpful.
[38] The statutory indications are that it is not intended that every error will give rise to a miscarriage. For example, s 264(2)(b) requires the Court to be satisfied a miscarriage may have occurred, or may occur “unless the appeal is heard”. In any event, we agree with the submissions for the respondent that the definition of “miscarriage of justice” in s 232(4) is not apt to determine whether all applications for a second appeal are meritorious. The definition is stated to apply to s 232(2) and is likely to have more relevance in relation to an application for leave to appeal against conviction. By contrast, for example, the definition does not fit well in the context of an application for leave for a second appeal against a decision relating to name suppression.
[39] We emphasise that what may be termed the s 13(2) approach should apply “in general”. That qualification is necessary for several reasons. The first reason is that the courts have differing roles. For example, this Court’s approach to leave will need to reflect the Court’s supervisory role in relation to aspects of criminal practice such as sentencing. There may also be occasions in which this Court will grant leave in order to preserve appeal rights to the Supreme Court.[27] For example, leave may be granted where an applicant wishes to challenge an earlier decision of this Court in reliance on which leave would otherwise be declined. We observe, however, that these types of cases can be dealt with by seeking leave of the Supreme Court to appeal directly from the High Court to the Supreme Court.[28]
[40] The second reason for our caveat is that this Court will need to give consideration to the approach to be taken to applications for leave under provisions in the Act concerning other types of decisions, such as, s 223 of the Act dealing with second appeals in relation to pre-trial decisions, s 253 concerning second appeals against sentence and s 289 relating to second appeals concerning suppression orders. In terms of pre-trial appeals, for example, as Mr Jones QC noted, it is possible for matters to be aired after trial if the prospective appellant is convicted. That factor may affect the approach to be taken to that category of leave applications.[29]
[41] Our final reason for taking a cautious approach is that the approach taken can be expected to evolve over time.
[42] We add that we view the use of the word “satisfied” in s 264(2) as inviting the court “to undertake an evaluation of all relevant matters and [to] reach a judgment as to whether or not [it] is satisfied”.[30]
[43] Finally, it is helpful to make some brief observations about the processes we foresee the Court adopting in dealing with applications for leave for a second appeal.
[44] Associated with the differing roles of the Supreme Court and this Court, there are differences in practice. For example, the Supreme Court does not often hold hearings on applications for leave.[31] This Court has in the past determined these matters in an oral hearing although the Act provides for these applications to be dealt with on the papers.[32] Our practice has also been to hear applications for special leave under s 144(3) of the Summary Proceedings Act 1957 separately from the intended appeal, unless there are exceptional circumstances. Because of this practice, we have not generally applied R v Leonard to applications for leave under s 144(3).[33] R v Leonard deals with the circumstances in which the merits of a proposed pre-trial appeal and the application for leave will be heard separately or together.
[45] We do not envisage a change to our approach, that is, we expect we will generally deal with applications for leave for a second appeal separately. But we should signal our intention to deal with these leave applications on the papers where the issues involved make that appropriate. Accordingly, in some cases we may ask for submissions on leave with a view to making a decision on an application for leave for a second appeal on the papers.

Whether leave should be granted in this case

[46] Before we turn to the present application we should explain that we have dealt with the merits in some detail because it was a combined hearing.[34] However, we envisage that when reasons are required to be given when dealing with leave only on these applications,[35] we will usually give our reasons “briefly and in general terms” as envisaged by r 5I of the Court of Appeal (Criminal) Rules 2001.
[47] As we have foreshadowed, the proposed appeal would focus on two issues. The first issue relates to the factual findings about the reasons for Mr McAllister’s refusal to take the oath or affirmation. The second issue concerns the meaning of the word “wilfully” in s 365 of the Act.
[48] To put the issues in context, we first set out the description of contempt of court in s 365. Section 365(1) provides that the section applies if any person:

(a) wilfully insults a judicial officer, or any 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 otherwise 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 proceedings.

[49] We turn then to the parties’ submissions.

The competing contentions

[50] Mr McAllister says that leave to appeal should be granted because of the importance of the issues relating to both the requirements of contempt and the role of jurors. He also says the approach in the High Court has given rise to a miscarriage. Two specific issues are raised.
[51] First, it is said that the Judge has not addressed Mr McAllister’s evidence that he genuinely did not believe he could be impartial. To the extent that Lang J has dealt with Mr McAllister’s beliefs, the submission is that Lang J did not have a proper basis for reaching the conclusion he did given the associated evidence of Mr McAllister’s sense of civic duty. In this respect, Mr Jones for Mr McAllister emphasises a number of matters including the fact that Mr McAllister turned up to Court on each of the three days and returned later. In addition, Mr McAllister says that the Judge could not reach the conclusion he did because Mr McAllister’s evidence in the High Court was not the subject of cross-examination.
[52] Secondly, it is submitted that what occurred was not sufficient to meet the requirement of “wilfully” interrupting proceedings. Mr McAllister says that “wilfully” embodies an intention to misbehave or to do something inconsistent, that is, something involving a level of malevolence or calculation “designed to undermine the court process or the authority of the Judge”. In developing this submission, Mr Jones contends that the issue of what is required to constitute contempt in this case is significant because of the importance of maintaining the ability of an individual to refuse to take the oath if he or she genuinely does not think impartiality is possible. Further, Mr Jones notes that there is very little case law on the meaning of “wilfully” and, to the extent that there is, that reveals some differences between the position in New Zealand from that in other, comparable, jurisdictions.
[53] The respondent submits that the proposed appeal does not meet the threshold for leave. Mr Downs for the respondent emphasises that on the facts, the potential questions are essentially moot. On this basis, no more general issue about the meaning of “wilfully” arises. Further, it is submitted there is no miscarriage of justice because there is no proper basis for concluding that the courts below were in error. There are, in this respect, concurrent findings of fact.

Our assessment

[54] The difficulty for Mr McAllister in meeting the threshold for leave is that on the factual findings of the Judge, by any test, Mr McAllister’s actions were in contempt. We explain that conclusion in this way. First, Lang J found that Mr McAllister’s concern in refusing to take the oath was not about his ability to bring concentration to bear on the task of jury service but, rather, was an artifice to avoid serving. The key finding is expressed in these terms:[36]

I do not consider Mr McAllister took that step because he genuinely believed he could not be impartial if he was selected as a juror. I consider his primary concern throughout was to ensure that he was released from the jury so as to be able to honour his work commitments.

In other words, the finding is that Mr McAllister’s statement that he could not be impartial was not genuine.

[55] Secondly, it follows that we do not accept the submission that Lang J did not grapple with the issue of Mr McAllister’s belief at the time.
[56] Thirdly, a review of the evidence shows that there was a proper basis for this factual finding.
[57] Mr McAllister’s evidence in the High Court was that on Tuesday 9 July he had arranged his work commitments for the rest of the week on the assumption that in all likelihood possible panel members would no longer be required after about 10.45 am the next day. Mr McAllister said he also found out when he returned to work on Tuesday that a site visit had been arranged to repair a transmission tower operated by Kordia on the Friday of that week, a day on which the weather was forecast to be suitable for the job. The tower was situated at a remote location and its repair involved the coordination of a number of people.
[58] Against this background, Mr McAllister said:

In that moment, I could not honestly say that I was capable of remaining impartial and applying myself properly to being a juror. I was pre-occupied thinking about how to cope with the planned works and flow-on implications that my absence would cause. I had real doubts about whether I was going to be able to give my full concentration to the trial and whether I was just going to be focused on getting through the process so that I could get back to work as soon as I could.

When my name was called to answer the oath, I replied “no”, or words to that effect that I could not do it. That was because I honestly did not consider that I could answer “yes”.

[59] Mr Best confirmed that the repair work to the transmission site required Mr McAllister’s presence and was weather-dependent.
[60] Ms Deacon explained that she had told the jurors on Tuesday 9 July that there was currently no trial scheduled to start the next day but a standby panel was required to attend in case the Court was required to restart a trial or another trial was scheduled to begin. She said she told the jurors that they should know by approximately 10.30 am the next day what was happening for the day.
[61] That evidence has to be considered alongside the exchange between Mr McAllister and Judge Dawson at the time Mr McAllister refused to take the oath. Mr McAllister’s initial comment was as follows: “I think I am under duress, but I don’t know if I can be impartial.” Judge Dawson then asked Mr McAllister to come forward and asked him why he had decided he could not be impartial. The following exchange took place:

MR McALLISTER:

Ah, I tried to explain before there are a number of reasons why I don’t think I should be here.

THE COURT:

That is nothing to do with whether really you can be impartial or not.

MR McALLISTER:

No, but because I don’t feel I should be here, it’s very frustrating.

THE COURT:

That is nothing to do with whether you are impartial or not.

MR McALLISTER:

I still don’t think I can give an impartial response.

THE COURT:

You cannot give a just and fair verdict.

MR McALLISTER:

(no audible answer 13:00:26).

[62] At this point, Judge Dawson informed Mr McAllister that he considered he was “very close to being in contempt of Court” and that the Judge was considering whether Mr McAllister should be stood down to get some legal advice. The discussion continued in this vein:

MR McALLISTER:

(inaudible 13:00:41) ... not intentionally ...

THE COURT:

I do not see what you said to me before, means you cannot give an impartial verdict.

MR McALLISTER:

I (inaudible 13:01:02). ... that I am here under duress.

THE COURT:

You are not here under duress, Mr McAllister. No one has a gun to your head. You are a citizen of this country. You have duties as a citizen. There are other people here who do not find it convenient to be here either but nevertheless they are serving.

MR McALLISTER:

Sir, I am not, (inaudible 13:01:24) It’s sort of not entirely for me that I find it inconvenient, but it’s for all the sub-contractors and other people that can’t continue their work because I'm ...

THE COURT:

Everybody finds it inconvenient to be on a jury. Mr McAllister, you stand down and wait at the back of the Court. Do not leave the Court because I am going to consider whether or not to charge you with contempt. Stand down, please, wait at the back.

[63] After the Judge retired to talk to counsel, Mr McAllister was able to rearrange his work commitments. When the Judge returned to the courtroom, there was a further exchange between Judge Dawson and Mr McAllister in the course of which Mr McAllister told the Judge he could serve impartially.
[64] Plainly, there was a basis for the Judge’s conclusion that Mr McAllister wanted to be released so he could honour his work commitments. On Mr McAllister’s own account he was preoccupied and did not think he should be in the courtroom. The fact that within about nine minutes after having been told of the possibility he was in contempt he had managed to rearrange his affairs and then said he could be impartial also supports Lang J’s finding.
[65] In these circumstances, we do not consider the fact that there was no crossexamination of Mr McAllister alters the position. The Crown made it plain in its written submissions in the High Court that the Crown’s position was the Judge should prefer the contemporaneous record of proceedings to the extent that differed from the new evidence. Mr McAllister knew the case against him. Further, the Judge had the benefit of the complete record and little could have been achieved by way of a challenge to the new evidence. For these reasons, there is no issue of noncompliance with the duties in s 92 of the Evidence Act 2006 to crossexamine on significant matters. Indeed, there was no real question about the factual narrative but rather a question of reaching a view on Mr McAllister’s state of mind based on that narrative.
[66] The potential issue raised by Mr Jones as to the ability to refuse to take the oath, having been directed to do so by a Judge, does not therefore arise. Indeed, Lang J accepted that there may be exceptional cases where a juror would be justified in refusing to take the oath even after being directed by a judge to serve on a jury, but did not consider that this case was one of them.[37] We agree. As to that possibility, it is helpful here to recite the conclusion of the United Kingdom Court of Appeal in R v Schot as to the importance of, and obligations associated with, jury service.[38] Rose LJ said:[39]

A summons for jury service may be unwelcome. It can seriously disrupt a juror’s working and private life. Serving on a jury will often be irksome. It may present unusually difficult challenges to the mind and emotions, sometimes over a considerable period. Unpalatable decisions may have to be made. But all these features mark a service to the community without which civilised society, as we know it, would not survive. That is why, however reluctantly and with whatever trepidation, most members of the public recognise that, if summoned for jury service and sworn to try a case, that is a job which they must do conscientiously and to the best of their ability.

[67] The effect of Lang J’s finding is that the meaning of “wilfully” does not arise in the present case. Indeed, Mr Jones did not seriously suggest that if the finding was that Mr McAllister did not genuinely believe he could not be impartial, his actions were other than in contempt.[40] In these circumstances, it is not arguable that his actions were either not wilful or without lawful excuse.
[68] The other factor that tells against a grant of leave is that there are, effectively, concurrent findings of fact as to Mr McAllister’s intention. Mr Jones says the findings are not concurrent because Lang J considered the matter afresh. However, Lang J evaluated the position at the relevant time based on the material that was before the District Court Judge, referring also to the additional evidence to see if that altered the position. The result of that exercise was that Lang J made the same findings as Judge Dawson on this aspect and, in doing so, built on Judge Dawson’s findings.
[69] We have hesitated over the question as to whether we should nonetheless give leave on the meaning of “wilfully”. There is little discussion in the context of contempt on the issue in New Zealand. This Court in R v White declined to grant leave on the question of whether intent was necessary for conviction on a charge of contempt of court.[41] Mr White had come to the District Court undressed for his sentencing on three convictions for behaving in an offensive manner by appearing similarly undressed. Upholding the finding of contempt made in the District Court, John Hansen J noted the appellant had “intentionally” chosen to appear in Court undressed and was “well aware of the possible consequences” of doing that.[42]
[70] This Court said that s 206 of the Summary Proceedings Act (effectively replicated in s 365) addressed the issue of intent. Further, the Court said Mr White was “well aware” when he went to Court on the day in issue that “his state of undress would be regarded by many as offensive”.[43]
[71] Mr Jones relies in particular on two United Kingdom cases, Bodden v Commissioner of Police of the Metropolis[44] and R v Schot, and on the decision of the High Court of Australia in Lewis v His Honour Judge Ogden.[45]
[72] The United Kingdom Court of Appeal in Bodden dealt with whether addressing a crowd of protestors with a loud hailer in the street outside a Magistrates’ Court constituted “wilfully” interrupting court proceedings or otherwise misbehaving in court.[46] Reliance is placed on the Court’s endorsement of the requirement that the mental element involved an intention to interrupt the court proceedings. However, the Court went on to state that “wilfully” would also include:[47]

the state of mind of an interruptor who knew there was a risk that his acts would interrupt the proceedings ... but nevertheless went on deliberately to do those acts. In that sense, recklessness would be a sufficient state of mind ....

[73] The appellants in Schot were on a jury panel. In the course of deliberations, the panel asked for advice about what they should do because they were unable to reach verdicts owing to “some jurors’ conscious beliefs”. A further note said some members could not make a true statement due to their beliefs which were not religious but personal.
[74] In a process criticised by the Court of Appeal, the trial Judge identified the two jurors and found them in contempt for intentionally disrupting the trial by their refusal to enter a verdict.
[75] Mr McAllister relies on Rose LJ’s statement that the mens rea was “an intention to impede or create a real risk of prejudicing the administration of justice”.[48] However, again, the Court went on to note that this could be established by foreseeability of consequence. The Court also said that if Ms Schot’s evidence was correct she was not guilty of contempt, but the Judge made no express finding as to whether he believed her or not. Importantly also for the present discussion, the Court observed that the conclusion the other appellant, Ms Barclay, was in contempt may have been sustainable if a different process had been followed and provided there was evidence of an intention to defy the Court and prejudice the administration of justice. Ms Schot’s evidence was that she had wanted or had tried to reach a verdict. Ms Barclay’s evidence was that she did not want to disrupt the Court’s process or be disrespectful towards the Court.
[76] In Lewis, a lawyer was found in contempt for comments made in a closing address to the jury in which the lawyer drew an analogy between the Judge and an umpire in a football match. The relevant provision reflected s 365(1)(a) of the Act and referred to “wilfully” insulting a judge.[49] The Court said “wilfully” meant “intentionally” or “deliberately” in the sense that what was done was intended as an insult.[50] The word “wilfully” was said to do “more than negative the notion of ‘inadvertently’ or ‘unconsciously’”.[51] Further, “[t]he mere voluntary utterance of words is not enough. ‘Wilfully’ imports the notion of purpose.”[52]
[77] The approach in Lewis supports the argument Mr McAllister wishes to make on appeal. However, we do not consider that it is credible in the context of the New Zealand legislation to suggest that a deliberate interruption of a court proceeding or deliberate disobedience of a direction will not meet the mens rea requirement. That approach would be inconsistent with the purpose of s 365 and inconsistent with the approach to the interpretation of “wilfully” in other offence provisions.[53]
[78] To summarise, in our view the issue the appellant wishes to raise on appeal does not arise on the facts and the proposed appeal would fail on the law. Accordingly, neither limb in s 264(2) of the Act is met in this case. We decline to grant leave.
[79] We interpolate here that one issue for consideration in another case will be whether this Court can give leave on one question only where a number of questions arise. The notice of application for leave to appeal for these appeals does not anticipate that course[54] but the practice of the Supreme Court under s 13 suggests that option is available.[55]

Result

[80] The application for leave to appeal is dismissed.














Solicitors:
Cook Morris Quinn, Auckland for Applicant
Crown Law Office, Wellington for Respondent

[1] Juries Act 1981, s 20; and see form 2 of the Jury Rules 1990.

[2] Criminal Procedure Act 2011, s 365(1)(c).

[3] McAllister v Solicitor-General [2013] NZHC 2217, [2013] 3 NZLR 708.

[4] At [6]–[20].

[5] McAllister v Solicitor-General, above n 3, at [32].

[6] At [33].

[7] At [70].

[8] At [72].

[9] See also s 265.

[10] Criminal Procedure Act, ss 223, 237, 253, 276, 289 and 303.

[11] Criminal Procedure Act, ss 223(3), 237(2), 253(3), 276(2), 289(2) and 303(2).

[12] Section 267(1).

[13] Subsection (2).

[14] Subsection (4).

[15] Summary Proceedings Act 1957, s 144.

[16] R v Slater [1997] 1 NZLR 211 (CA).

[17] The Act also made other changes extending rights to a first appeal and providing corresponding rights of second appeal in certain cases. Compare, for example, ss 296 and 303 with s 381A of the Crimes Act 1961.

[18] As the respondent’s submissions note, the removal of the word “substantial” was effected by a Supplementary Order Paper [SOP] at the committee stage of the Bill. The explanatory note to the SOP states that this change “simplifies but does not alter the test for allowing an appeal against conviction”: Supplementary Order Paper 2011 (281) Criminal Procedure (Reform and Modernisation) Bill 2010 (243-2) (explanatory note) at 10.

[19] See Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) (explanatory note) at 12–14 regarding the redrafting of the provisions in order to consolidate and simplify.

[20] Criminal Procedure (Reform and Modernisation) Bill 2010 (243-2) (select committee report) at 10; Departmental Report for the Justice and Electoral Committee: Criminal Procedure (Reform and Modernisation) Bill (Ministry of Justice and New Zealand Law Commission, 16 May 2011) at [1087].

[21] Keenan v R [2005] NZSC 63 at [5]; see also Tainui v R [2008] NZSC 59 at [2]: no “point of principle” raised; and Bull v R [2005] NZSC 80 at [3]: “No error of principle”; and see the illustrations of the “kinds of applications in criminal appeals where the criteria have been satisfied” in McGechan on Procedure (online looseleaf ed, Brookers) at [SC13.03] and see at [SC13.04].

[22] See, for example, L v R [2005] NZSC 69 relating to the standard required for attempt.

[23] Thompson v R [2005] NZSC 58, [2005] 3 NZLR 588 at [6]; and see, for example, Lawler v R [2013] NZSC 92 at [21]; and Gash v R [2013] NZSC 106 at [4].

[24] Balfour v R [2013] NZSC 149 at [2].

[25] The legislative history does not suggest that it was intended that a more liberal standard be applied to second appeals.

[26] In the leave decisions of the Supreme Court there are references to either a “miscarriage” or a “substantial miscarriage”. See, for example, O’Hara v R [2005] NZSC 44 at [1]; Gash v R, above n 23, at [4]: no “appearance of any miscarriage”; Bland v R [2013] NZSC 93 at [6]: “no appearance of a substantial miscarriage”; Hosking v R [2013] NZSC 144 at [3]: “no risk of a substantial miscarriage”; and Crooks v R [2006] NZSC 9 at [3]: “clear that there has not been a miscarriage”.

[27] For example, under s 269 of the Criminal Procedure Act.

[28] Supreme Court Act 2003, s 14; and see Criminal Procedure Act, s 213(1).

[29] We note that the approach of the Supreme Court which is to refuse leave in pre-trial appeals, in the absence of special reasons making it necessary to do so, because the relevant issue(s) may be raised in any post-conviction appeal: Hamed v R [2011] NZSC 27, [2011] 3 NZLR 725 at [12]. A recent example is MacKenzie v R [2013] NZSC 143 at [10].

[30] R v A (CA255/2009) [2009] NZCA 380 at [10].

[31] Examples of cases where an oral hearing was undertaken are Thompson v R, above n 23, and O’Hara v R, above n 26. In Trotter v R [2005] NZSC 7, a case in which no leave hearing was held, the Court explained that the approach being taken to the s 13 criteria was “substantially the same as that in respect of second appeals in other Commonwealth jurisdictions”: at [7] citing, amongst other things, Paul Taylor Taylor on Appeals (Sweet & Maxwell, London, 2000) at [14–028] and [18–096].

[32] Criminal Procedure Act, s 327 and see s 331.

[33] Practice Note – R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218.

[34] This application was to be heard together with the substantive appeal if leave was granted and so we heard submissions on both aspects: McAllister v R CA654/2013, 15 October 2013 (Minute of Randerson J) at [2].

[35] Section 340(3)(a).

[36] McAllister v Solicitor-General, above n 3, at [72].

[37] At [39].

[38] R v Schot [1997] 2 Cr App Rep 383 (CA).

[39] At 400.

[40] Sir David Eady and Professor ATH Smith cite, as an example of a contempt finding, a case where a juror protested “without cause” against serving on a jury: David Eady and ATH Smith Arlidge, Eady & Smith on Contempt (4th ed, Sweet & Maxwell, London, 2011) at [11–146] citing “Anon., Law Gazette Vol.7 p.299”; and see Halsbury’s Laws of England (5th ed, 2012) vol 22 Contempt of Court at [58].

[41] R v White [2007] NZCA 64.

[42] White v New Zealand Police HC Christchurch CRI-2006-409-119, 3 October 2006 at [24].

[43] At [23].

[44] Bodden v Commissioner of Police of the Metropolis [1990] 2 QB 397 (CA).

[45] Lewis v His Honour Judge Ogden (1984) 153 CLR 682.

[46] Contempt of Court Act 1981 (UK), s 12(1)(b).

[47] At 405.

[48] R v Schot, above n 38, at 398.

[49] County Court Act 1958 (Vic), s 54A(1)(a).

[50] Lewis, above n 45, at 688.

[51] At 688.

[52] At 688.

[53] See Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CA20.16].

[54] Court of Appeal (Criminal) Rules 2001, form 2; compare Supreme Court Rules 2004, form 2.

[55] See Adams on Criminal Law, above n 53, at [SCJ3.01]; and McGechan on Procedure, above n 21, at [SC13.03(a)–(d)].

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