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High Court of New Zealand Decisions |
Last Updated: 26 March 2012
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2011-488-000078 [2012] NZHC 444
MYLES DE MONTALK
Appellant
v
DISTRICT COURT AT DARGAVILLE
Respondent
Hearing: 15 March 2012
Counsel: Appellant in person
D B Stevens for Respondent
Judgment: 16 March 2012
JUDGMENT OF LANG J
[on appeal against committal for contempt]
This judgment was delivered by me on 16 March 2012 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date...............
MYLES DE MONTALK V DISTRICT COURT AT DARGAVILLE HC WHA CRI-2011-488-000078 [16 March
2012]
[1] On 1 December 2011, Mr de Montalk appeared in the District Court at Dargaville on charges of operating a motor vehicle carelessly and refusing to permit a blood specimen to be taken. He had earlier pleaded not guilty to those charges, and the purpose of his appearance on 1 December 2011 was for a date to be allocated for a defended hearing.
[2] Following two separate exchanges between Mr de Montalk and Judge McDonald, the Judge held Mr de Montalk to be in contempt. He stood Mr de Montalk down in custody, and arranged for him to speak with a Duty Solicitor. Later that afternoon, the Judge conducted a hearing in order to ascertain whether Mr de Montalk had an explanation for the comments he had made to the Judge earlier. In the absence of any adequate explanation or apology, the Judge then sentenced Mr de Montalk to 21 days imprisonment for contempt.
[3] Mr de Montalk has now served the sentence, although he was released after spending just six nights in custody. He maintains his appeal, however, on the basis that the Judge should not have sentenced him to imprisonment for 21 days given the circumstances in which the alleged contempt occurred.
Factual background
[4] The charges against Mr de Montalk were called at the beginning of a busy list day. Not surprisingly, the public gallery of the Court was full. Those present included persons who had been summonsed to attend on criminal matters, together with their support persons and Court officials.
[5] After Mr de Montalk had come forward, the Judge asked him if he was able to accept a fixture for the defended hearing on 31 January 2012. Mr de Montalk said that he opposed the allocation of a fixture on that date because he had not yet received a transcript of earlier pre-trial hearings by another Judge. In addition, he maintained that the police had not complied with their obligations as to disclosure.
[6] A discussion then ensued about the disclosure that Mr de Montalk sought. At that point the following exchange occurred:
THE COURT:
No. You are only entitled to disclosure of documents where the police have reduced it to writing. If you don’t – disclosure does not require the police to go and freshly interview people who might have been there.
MR de MONTALK:
No Your Honour, but they were there at the time. The police interviewed them. I want to see their notebook entries.
THE COURT:
How do you know that the police have spoken to these people?
MR de MONTALK:
Because on the notebook entries the police refer to the fact that they’re there
–
THE COURT:
Just because they’re there, does not –
MR de MONTALK:
- and they have spoken to them.
THE COURT:
- just because they are there Mr de Montalk, does not mean to say that the policeman went and spoke to them and recorded then what was said.
MR de MONTALK:
Yes Your Honour, just as what Judges say in Court’s not true.
THE COURT:
Sorry?
MR de MONTALK:
Just as what Judges say in Court is not true.
THE COURT:
I would be very careful if I was you Mr de Montalk –
MR de MONTALK:
Well Your Honour I can prove quite easily –
THE COURT:
- in making statements such as that.
And if you make –
MR de MONTALK:
- that I’m supposed to be getting under section 25 –
THE COURT:
- Mr de Montalk, if you make a comment like that again, then I will find you in contempt. Do you understand? There are people in the back of the Court and I am not having my Court turned into a circus by you -
MR de MONTALK:
It’s not a circus Your Honour.
THE COURT:
You will not say anything about Judges and about their character, such as you have just said again. Now do you understand what I am telling you?
MR de MONTALK:
Sir, it’s on the Internet. I’m not saying it.
THE COURT:
I don’t care if it is on the Internet or where it is, Mr de Montalk. I am telling you, you will not make a comment like that again. And if you do I will find you in contempt.
MR de MONTALK: Yes Your Honour. THE COURT:
Now do you understand what I am saying to you?
MR de MONTALK:
Yes Your Honour. You’re telling me I can’t give evidence. You’re tellimg
me I can’t speak from the floor –
THE COURT:
No. You are acting for yourself and you are entitled to speak, but you, because you are acting for yourself will conduct yourself in the same way as a lawyer would. And a lawyer would never ever say to a Judge that they are liars, as you have just said –
- I am giving you some lee-way here because you are acting for yourself –
MR de MONTALK:
You can’t be a Judge without being a lawyer can you?
THE COURT:
What else, apart from you saying that you have not got full disclosure –
[7] Mr de Montalk and the Judge then turned their attention to an earlier ruling given by Judge de Ridder on 17 August 2011. At that point the following exchange occurred:
MR de MONTALK:
- the ruling of Judge de Ridder dated 17th of August, where at paragraph –
THE COURT:
All right, now –
MR de MONTALK:
- 15 he states that his rulings –
THE COURT:
- Just pause there. Have you got a copy of that for me? There are a lot of documents on this – what is the date of this decision?
MR de MONTALK: The 17th of August. THE COURT: Paragraph?
MR de MONTALK:
Well one of the paragraphs is – paragraph 15.
THE COURT:
There are two decisions of Judge de Ridder dated 17 August; the hearing was. One judgment was given on the 17th of August and the other was of the
8th of September. Which one are you referring to?
All right. That’s the oral judgment of Judge de Ridder?
MR de MONTALK:
Yes, and the defence isn’t allowed to call witnesses.
THE COURT:
Paragraph 17?
MR de MONTALK: No, Your Honour, 15. THE COURT:
15?
MR de MONTALK: That’s 10 followed by five. THE COURT:
Take Mr de Montalk into custody please. I am not going to have you talking to me like this Mr de Montalk. You have shown just absolute ignorance.
[8] During the day, the Judge arranged for a member of the Court staff to type up a transcript of the conversations that had led to Mr de Montalk being taken into in custody. When Mr de Montalk was brought back before the Judge later in the day, he immediately took issue with the accuracy of the transcript. He pointed out that it omitted discussions between the Judge and the prosecuting sergeant when Mr de Montalk’s case was first called.
[9] The Judge then directed Mr de Montalk’s attention back to the proposed hearing date of 31 January 2011, and issues relating to the outstanding disclosure and the ruling given by Judge de Ridder on 17 August 2011. After an extended discussion regarding these issues, the Judge turned to the issue of contempt. It is worthwhile setting out the discussion that followed in its entirety, because it contains the explanation that Mr de Montalk advanced for his comments at the time. He maintained that explanation in support of his appeal. The discussion was as follows:
The portions that I could find you in contempt on do you disagree with those?
MR de MONTALK:
There’s –
THE COURT:
That is, “Just what Judges say in Court is not true.”
MR de MONTALK: That’s a question. THE COURT:
“My, sorry, you saying just as what Judges say in Court is not true.” Do you
disagree with those utterances of yours?
MR de MONTALK:
No, that was a question. I don’t disagree with me saying that.
THE COURT:
Do you disagree that I then cautioned you?
MR de MONTALK:
No, you said if I made any more comments about Judges being liars that I
would be held in contempt. Yes, I accept that.
THE COURT:
Then at the end –
MR de MONTALK: So I made no more. THE COURT:
- Mr de Montalk, where I say to you, “Paragraph 17,” and you say, “No Your Honour 15,” and I say “15” and you say to me, “That’s 10 followed by five.”
MR de MONTALK:
Yes Your Honour, if Your Honour will read the transcript –
THE COURT:
I have read the transcript.
MR de MONTALK:
That’s the, that’s the fifth time I told you section 15.
THE COURT:
Do you agree that that’s what you said to me?
MR de MONTALK:
Yes Your Honour, that it is, it’s 10 followed by five, it’s 15, it’s a statement of fact and I’d said it – if Your Honour reads a third the way down the page, first time; half way down the page, second time; two-thirds third time; fourth time, fifth time.
THE COURT:
what – well you’re entitled to make submissions as to what you meant and
what was your purpose in a packed courtroom saying that to me?
MR de MONTALK:
Well Your Honour kept thinking I was saying something different to what I
knew I was saying. Now the simplest way is 10 plus five, 15 or should I say
15. It was the 17th of August the fifteenth paragraph and as this document says, that was only just one of the many paragraphs I could have referred to,
but that was the one where he said that I must be given his rulings. Earlier paragraphs during Judge de Ridder’s ruling on the 17th of August also said I must be given as soon as practicable the transcript.
THE COURT:
I’m not, I’m not concerned about that, I am concerned about –
MR de MONTALK:
Yes Your Honour, that’s what I was pointing out to you.
THE COURT:
- your comment to me in a packed courtroom in the way that you said it, what was your reason for doing it and you don’t have to say anything. I am, just because you were acting for yourself, giving you the opportunity to explain that comment, I have already warned you about the way you were addressing me.
MR de MONTALK:
Yes. On a previous page –
THE COURT:
Is that the normal way you talk to people is it?
MR de MONTALK:
I do.
THE COURT:
Is that how you’re always going to talk to a Judge?
MR de MONTALK:
It depends Your Honour, if they hear me or not.
THE COURT:
Is there anything else you wish to say?
MR de MONTALK:
No, Your Honour, most, most times I find that I’m understood when I say 15. However, it was because of the packed courtroom we didn’t hear it, then maybe I needed to repeat it.
THE COURT:
No I heard you, I heard you Mr de Montalk as did everybody in the Court.
MR de MONTALK:
Well Your Honour you warned me –
THE COURT:
And you may have heard the gasps from the people at the back of the Court when you spoke to me in the way that you did.
MR de MONTALK:
No Your Honour I didn’t.
THE COURT:
Well I certainly did.
MR de MONTALK:
Well I’m not facing that way. There was a few surprises when I sat here.
THE COURT:
I consider and find Mr de Montalk that your earlier statements that I cautioned you about are not questions, they are you saying, “That Judges don’t tell the truth,” that your further comment to me, “That’s 10 followed by five,” is contempt. Is there any that you have to say about that contempt?
MR de MONTALK:
Well Your Honour I disagree with that.
THE COURT:
So you have nothing to say about what I find is contempt, both in the way that you said it and what you said?
MR de MONTALK:
Your Honour, I said earlier, I asked the simple question, just as Judges say in Court is not true. And the long list of history but I could go on in reference to that, in fact it used to be a while ago that you had to put false evidence before a Court of law to be made a High Court Judge.
THE COURT:
That’s not what you were saying and I’m not going to get into a debate with
you Mr de Montalk.
MR de MONTALK:
Well Your Honour that’s what trying to then, then you warned me about it and we moved on, is my understanding. You told me, “If you make that comment like that I’ll hold you in contempt. Do you understand?” And then we moved on completely. So that was two-thirds of the way down the first page. And if carry on going – trying to clear up which paragraph and which decision we were talking about till we got to the bottom of the second page where I, for the fifth time, said, “10 followed by five”, merely reiterating what I’d been saying the whole time, 15.
THE COURT:
On the basis that I as a Judge can’t count passed [sic] 10.
MR de MONTALK:
No Your Honour, I was just telling you that –
THE COURT:
You were just being clever, Mr de Montalk and playing to the packed gallery
at the back of this Court. That’s what you were doing.
MR de MONTALK:
No Your Honour.
[10] The Judge then delivered an oral decision in which he found Mr de Montalk to be in contempt.[1]
The Judge’s decision
[11] After setting out the background, the Judge said:[2]
[8] Sergeant Iggo, the prosecuting sergeant then announced his appearance. I invited the sergeant to make submissions first as to whether the date that the Court had found of 31 January was a date acceptable to the prosecution. He said it was. There was no other issue so far as the police were concerned.
[9] I then spoken to Mr de Montalk. His attitude from the very beginning towards me displayed one of contempt and arrogance. I made allowance for the possibility that that was just the way he spoke generally to people. He talked over me; he sought to argue with me.
[10] I then said to him in relation to his complaint that he had not got all the notebook entries from the police in relation to his case, “Just because they’re there, just because they are there, Mr de Montalk, does not mean that the policeman went and spoke to them and recorded what they said.” His reply, “Yes Your Honour, just as what Judges say in Court is not true.” I then said, “I would be very careful if I were you Mr de Montalk in making statements such as that.” He spoke again, “I could quite easily the lies that are going on.” I interrupted him, “And if you make, Mr de Montralk, if you make a comment like that again then I will find you in contempt. Do you understand? There are people in the back and I’m not having my Court turned into a circus by you.” He replied, “It is not a circus Your Honour,” I said to him, “You will not say anything about Judges and about their character such as you have just said again. Now do you understand what I am telling you?” He said, “Sir, it’s on the Internet.” I replied, “I don’t care if it’s on the Internet or where it is, Mr de Montralk, I am telling you you will not make a comment like that again and if you do I’ll find you in contempt. Now do you understand what I’m saying to you?” He said, “Yes Your Honour, you’re telling me I can’t give evidence, you’re telling me I can’t speak from the floor.” I then gave him further advice.
[11] The discussion continued briefly about two decisions that Judge de Ridder had made, one given orally on 17 August, the other a reserved decision given on 8 September. I was seeking clarification of which paragraph he was referring me to and said, “Paragraph 17?” He said, “No Your Honour 15.” I said “15?” He said, “That’s 10 followed by five.” At that point audible gasps from the public gallery could be heard by me.
[12] I find that his comment, “10 followed by five,” was calculated by him to show his utter disrespect for the Court. He has sought to explain that comment today as a way of explaining to me what the number 15 means. I do not accept that for one minute.
[13] It is not that Mr de Montalk is unaware of the Court process. He has been involved in these charges, from a reading of the Court file, on a number of occasions. He has been involved in legal argument before Judge de Ridder on an application that Mr de Montalk made, and that Judge de Ridder
recused himself; in legal argument where he opposed the setting aside of witness summonses he had issued against Judge Maude and others seeking their attendance at his defended hearing.
[12] The Judge then referred to s 206 of the Summary Proceedings Act 1957, which provides the District Court with jurisdiction in relation to contempt, and said:
[15] The first question that needs to be answered is whether Mr de Montalk was in contempt? I clearly find he was. Contempt is not just the words spoken, in this case they were bad enough, it is the manner in which they were spoken. Even giving as much discount as I can to Mr de Montalk in the way he may naturally speak, I found his entire delivery, particularly when he was speaking about Judges not speaking the truth, and instructing me that, “15 was 10 plus five,” that he said that in a sneering way, calculated to play to the packed gallery at the back of the Court. That was his whole intention. It got the reaction of gasps.
[16] I find that he did wilfully insult me in the way that he spoke and what he said. However, it is not me that the power of contempt is designed to protect. The sole or primary purpose of contempt proceedings is to give the Court the power effectively to protect the rights of the public so as to ensure that the administration of justice is not obstructed or prevented. The purpose of the law of contempt is not to protect the Judge, but to protect the public in the due and proper administration of justice.
[17] All persons with business before the Court should carry out that purpose with dignity. That not only relates to lawyers but also to litigants in person and any other person who must come before our Courts. A District Court Judge, indeed any Judge, must jealously guard the rights of citizens to come freely and unhindered into their Courts, not to be subject to the type of conduct that Mr de Montalk showed in this case this morning before me. If it were otherwise then anarchy and chaos would reign in our Courts. That would be particularly so in busy District Court Judge-alone hearing days.
[18] I asked Mr de Montalk if he had anything to say about his comments to me that I have already outlined. He sought to argue with me. He offers no apology to purge his contempt that I have found. He considers he has done nothing wrong.
[19] Often a finding of contempt followed by a period of time in custody to the rising of the Court that day and a heart-felt apology offered by the offender, is sufficient. Here Mr de Montalk offers no such apology, not even a conditional apology.
[20] I consider that there being no apology that on the finding of contempt the only penalty that I can impose upon him is one of 21 days’ imprisonment and that is what I do.
[13] Mr de Montalk advances four points in support of his appeal. First, he says that the Judge was wrong to assume that the hearing on 1 December 2011 was for the sole purpose of setting a date for the defended fixture. Mr de Montalk produced a letter dated 13 October 2011 that he had received from a Deputy Registrar of the Dargaville District Court. This advised Mr de Montalk that an application to set aside a witness summons that he had issued was also to be heard on 1 December
2011. Mr de Montalk raised this issue with the Judge but, in his view, the Judge never permitted him an opportunity to deal with it properly.
[14] The transcript confirms that there was some discussion between the Judge and Mr de Montalk regarding this issue, but it did not advance very far. I accept that there could have been fuller discussion of the issue given that the Registry had advised Mr de Montalk that it was to be heard on that day. Nevertheless, the fact that it was not resolved does not assume any practical significance in the context of the principal issues that this Court is dealing with on the appeal.
[15] Next, Mr de Montalk submits that the Judge adopted a bullying tone from the outset, and that he did not allow Mr de Montalk to properly advance his concerns regarding Judge de Ridder’s ruling and the failure of the police to make full disclosure. It is not necessary to resolve that issue in the context of the present appeal. It needs to be remembered, however, that the Judge was beginning a busy list day. He obviously felt that it was important to deal with the matters that were before him, including Mr de Montalk’s case, as expeditiously and efficiently as possible. The flavour that I take from the transcript is that the Judge was anxious to get to the heart of Mr de Montalk’s concerns quickly and without wasting time.
[16] The principal issues to be determined on appeal are whether the Judge was entitled to find Mr de Montalk to be in contempt and, if so, whether the sentence that the Judge imposed was clearly excessive.
[17] Jurisdiction to imprison for contempt is contained in s 206 of the Summary
Proceedings Act 1957 which provides as follows:
206 Contempt of Court
If any person—
(a) Wilfully insults a [District Court Judge] or Justice [or Community Magistrate] or any witness or any officer of the Court during his 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,—
any constable or officer of the Court, with or without the assistance of any other person, may, by order of the District Court Judge or Justice or Community Magistrate, take the offender into custody and detain him until the rising of the Court, and the District Court Judge or Justice or Community Magistrate may, if he thinks fit, by warrant under his hand, order that the offender be committed to prison for any period not exceeding 3 months, or order the offender to pay a fine not exceeding $1,000 for each offence.
[18] In the present case the words that the Judge used in his sentencing notes[3] make it clear that he believed that Mr de Montalk had wilfully insulted him in terms of s 206(a).
[19] The actual words that led the Judge to have Mr de Montalk taken into custody are, on their face and in written form, relatively innocuous. A statement to a Judge that 15 is “ten followed by five” would not ordinarily be sufficient to render a litigant liable for contempt. However, as always, context is everything.
[20] Mr de Montalk’s comments need to be considered in light of what had already occurred. The Judge was rightly concerned regarding the comments that Mr de Montalk had made earlier. Mr de Montalk had effectively told the Judge that
Judges tell lies in Court. The Judge had justifiably warned Mr de Montalk in very
clear terms that he would not tolerate any similar remarks in the future, and that he would hold Mr de Montalk in contempt if he continued to make them.
[21] In this context I bear in mind the following comments by Tompkins J in
Masiutama v District Court at Papakura:[4]
On an appeal against a sentence for contempt there are two further and to some extent, conflicting considerations to which an appellate court should have regard. The first is the importance of ensuring that respect for and confidence in the Court appealed from, is maintained. That consideration requires considerable weight to be given to the view of the Judge before whom contempt occurred and who, for that reason, may well be able better to assess the extent to which the conduct, the subject of the contempt, is likely to undermine that respect and confidence. ...
[22] The Judge was in a far better position than I am in the present case to assess the meaning and innuendo to be taken from Mr de Montalk’s comments. He plainly considered that Mr de Montalk said the words “ten followed by five” in an arrogant and sneering tone. Mr de Montalk also made it in front of a full public gallery, and the Judge observed that it drew “gasps” from those in the audience. Furthermore, Mr de Montalk made that comment very shortly after making his earlier comments about Judges being liars in Court. When those matters are factored into the equation, I cannot say that the Judge was wrong to conclude that Mr de Montalk’s words amounted to deliberately insulting conduct. He was therefore entitled to hold Mr de Montalk in contempt.
Was the sentence that the Judge imposed clearly excessive?
[23] Mr de Montalk’s right of appeal is conferred by s 115B of the Act, which provides:
Right of appeal against sentence for contempt of Court
Any person against whom an order (other than an order to the effect only that a person be taken into custody and detained until the rising of the Court) has been made under section 206 of this Act may appeal to the High Court against the order, and the provisions of sections 116 to 144 of this Act, as far as they are applicable and with the necessary modifications, shall apply to any such appeal as if that person was a defendant who had been convicted on an information and sentenced.
[24] Because s 121(3)(b) of the Act applies to this appeal by virtue of s 115B, Mr de Montalk must show that the sentence was clearly excessive.
[25] The maximum penalty available to the Judge under s 206 was three months imprisonment. The sentence that the Judge imposed was therefore obviously towards the lower end of the scale available to him.
[26] Having said that, a comparison between the penalty that the Judge imposed on Mr de Montalk and those imposed in other cases provides considerable assistance in determining whether the sentence was clearly excessive.
[27] In Mair v District Court at Wanganui[5] the appellant had persisted in saying a karakia in Court prior to the hearing of a case despite numerous instructions from the Judge that he should not do so in the Judge’s presence. A sentence of 21 days imprisonment was upheld on appeal.
[28] In Greer v Police[6] the appellant had been refused bail in the District Court. Whilst leaving the dock he said to the Judge, “I’m applying to the High Court on that you dickhead.” After being given an opportunity to apologise, the appellant insisted that he had been within his rights to make the comment. Again, a sentence of 21 days imprisonment was upheld on appeal.
[29] In Mihaka v Police[7] the appellant had persisted in referring to a Judge other than the presiding Judge by the Judge’s surname alone. He refused to heed the presiding Judge’s direction that he was to refer to the other Judge using the Judge’s title. After being found in contempt, the appellant called the presiding Judge an “arsehole”. After making what the Judge described as a “half-baked” apology, the appellant was sentenced to 28 days imprisonment. This was upheld on appeal.
[30] In Masiutama v District Court (Papakura)[8] the appellant flashed a card with
the words “[expletive] justice” on it to friends whilst seated in the public gallery of
the District Court. The appellant apologised to the Court, but received a sentence of six weeks imprisonment. On appeal, Tompkins J said that the appellant’s counsel might well be right to characterise the appellant’s behaviour as largely “showing off” to others in the gallery. He reduced the sentence to one of four days imprisonment, being the amount of time the appellant had spent in custody before being granted bail pending the hearing of his appeal. Tompkins J indicated that the sentence may well have been slightly longer but for the fact that a longer sentence would require the appellant to go back into custody for just a few days.
[31] I consider that the culpability of Mr de Montalk’s conduct in the present case was significantly less than those in cases in which sentences of 21 to 28 days imprisonment were imposed. Mr de Montalk did not directly insult the Judge in terms similar to those used by the appellants in Greer and Mihaka. Rather, he made comments that demeaned the Judge in front of a full courtroom of spectators. I consider conduct of that type to be much more in line with that which led to the finding of contempt in Masiutama.
[32] For this reason, I conclude that a sentence of 21 days imprisonment was clearly excessive. I consider that the appropriate sanction in the present case was a sentence of seven days imprisonment, albeit with the expectation that Mr de Montalk would spend the whole of that period in custody.
Result
[33] Although I have upheld Mr de Montalk’s submission that the sentence was clearly excessive, this does not result in the appeal being allowed. Mr de Montalk only spent six nights in custody before being released. As a consequence, I am satisfied that he ultimately served a sentence that was actually slightly less than was appropriate having regard to his conduct.
[34] For that reason the appeal is dismissed.
Lang J
Solicitors:
Crown Solicitor, Whangarei
Copy to:
Appellant
[1] New Zealand Police v de Montalk DC Dargaville CRI-2011-011-000142, 1 December 2011.
[2] Ibid.
[3] Ibid at [16].
[4] Masiutama v
District Court at Papakura HC Auckland AP 203/86, 3 October 1986 at
6.
[5] Mair v
District Court at Wanganui [1996] 1 NZLR 556
(HC).
[6]
Greer v Police HC Palmerston North AP53/97, 17 October
1997.
[7]
Mihaka v Police [2010] NZHC 1231; [2010] NZAR 504.
[8] Masiutama v District Court (Papakura) HC Auckland AP 203/86, 3 October 1986.
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