Burrows v Solicitor-General [2018] NZHC 2092 (15 August 2018)

Last Updated: 22 August 2018

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2018-454-000029 [2018] NZHC 2092

BETWEEN	WAYNE JOHN BURROWS Appellant
AND	THE SOLICITOR-GENERAL Respondent

Hearing:	1 August 2018
Counsel:	Appellant in person J J Harvey for Respondent
Judgment:	15 August 2018

JUDGMENT OF COLLINS J

[Appeal against finding of contempt in District Court]

Introduction

[1] Two issues are raised by Mr Burrows’ appeal from a decision of Judge D G Smith in which the Judge held Mr Burrows in contempt of court. Those issues are:

(1) Did the Judge err in finding Mr Burrows’ conduct constituted contempt of court? and

(2) Did the Judge provide Mr Burrows with an adequate opportunity to present his defence before finding him in contempt?

[2] The second of these issues engages the rights affirmed by ss 25(e) and 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA) which provide that anyone

BURROWS v THE SOLICITOR-GENERAL [2018] NZHC 2092 [15 August 2018]

charged with an offence has the right “to present a defence” and to the “observance of the principles of natural justice”.

Background

[3] Mr Burrows applied for a restraining order under the Harassment Act 1997 against Ms Thomson. She had previously obtained a restraining order against Mr Burrows.¹ On 15 March 2018, a hearing was held in the District Court at Palmerston North to consider an application by the Police to strike out Mr Burrows’ application on the grounds it was “frivolous or vexatious or an abuse of the procedure of the court”.² Mr Burrows attended court to oppose that application.

[4] Judge Smith concluded Mr Burrows’ application should be struck out.³ Mr Burrows has appealed that decision. In a judgment that is being delivered contemporaneously with this judgment, I have dismissed Mr Burrows’ appeal from the finding that his application for a restraining order was frivolous or vexatious or an abuse of the procedure of the court.⁴

[5] The District Court hearing on 15 March 2018 commenced at 2.57 pm. There were some brief introductory exchanges between Judge Smith and Mr Burrows. The transcript then records the following exchanges, commencing at about 3.00 pm:

THE COURT:

Would you please stand, would you please stand?

MR BURROWS:

I am standing Sir.

THE COURT:

You’re leaning on the font.⁵

MR BURROWS:

Yeah that’s a form of standing.

¹ Thomson v Burrows [2017] NZDC 5681.

² Harassment Act 1997, s 32.

³ Burrows v Thomson [2018] NZDC 5020.

⁴ Burrows v Thomson [2018] NZHC 2093.

⁵ Possibly meant to be “front”.

THE COURT:

Will you please stand.

MR BURROWS:

I am standing.

THE COURT:

I’m not having people slouching around, would you please stand at the desk –

MR BURROWS:

I’m not having people talk to me the way you’re talking to me Sir. I’ll stand the way I want.

THE COURT:

If, thank you you’ll stand –

MR BURROWS:

Don’t be abusive, last time I came to your hearing –

THE COURT:

Take your hands –

MR BURROWS:

– you were rude to me and you acknowledged that you were rude to me.

THE COURT:

Take your hands off your hips.

MR BURROWS:

If you’re going to be rude to me again –

THE COURT:

Take your ha –

MR BURROWS:

– I will make it public how you treat people.

THE COURT:

Take your hands off the hips and talk –

MR BURROWS:

Get lost. I’ll keep my hands where I want. It’s not, you, you are not, you are some sort of abusive psychopath if you are going to tell people where and how they can place their hands.

THE COURT:

Mr Burrows, you are to address the Court in a civil and reasonable manner –

MR BURROWS:

I am being civil, you are the one not being civil Sir.

THE COURT:

In that case do not raise your voice and listen –

MR BURROWS:

I’ll speak as I speak. The judiciary, the judicial process must observe the New Zealand Bill of Rights which include a freedom of expression and I will choose when you create a situation that is hostile, to express myself in an emotional way. If you stop doing that, then you are abusing my human rights.

THE COURT:

That is totally incorrect –

MR BURROWS:

Bullshit.

THE COURT:

– you have the right to say – you will not speak in that manner either.

MR BURROWS:

I will speak, I’ll express myself as I see fit.

THE COURT:

Mr Burrows –

MR BURROWS:

Don’t speak to me like that.

THE COURT:

Mr Burrows I’m giving you a warning and listen to it carefully –

MR BURROWS:

A warning for what?

THE COURT:

– if you do not speak in a civilised manner.

MR BURROWS:

I’m speaking civilised.

THE COURT:

In a way which is cognisant of the situation you are in, you will be held in contempt. If you are held in contempt you will be placed in the cells below, do you understand that?

MR BURROWS:

I understand that you are abusive Sir. Like you told me last time, you were rude.

THE COURT:

That statement is also a contemptuous statement.

MR BURROWS:

You told me last time you were rude.

THE COURT:

We are having a hearing here today –

MR BURROWS:

Yep.

THE COURT:

About your application.

MR BURROWS:

Okay.

THE COURT:

To bring a harassment order –

MR BURROWS:

Well I suggest you don’t tell me how to stand.

THE COURT:

I will tell you how to stand –

MR BURROWS:

That’s just pathetic, it’s pathetic and it’s controlling and abusive.

THE COURT:

It’s absolutely controlling, that is what my job is.

MR BURROWS:

Well I, I will conduct myself as I see fit.

THE COURT:

And I am warning you that if you do not behave in a reasonable manner expected –

MR BURROWS:

I am behaving in a reasonable manner, you are the one not behaving in a reasonable manner.

THE COURT:

– for everybody who appears in this Court including talking over me, you will be held in contempt. This is the second warning, there will not be a third one. Now can we address the issue you have raised about Ms Thomson not being here. You have raised the issue that she should have been served so that she could make submissions on this.

MR BURROWS:

That’s not true Sir.

[6] There was then a discussion between the Judge and Mr Burrows about whether Ms Thomson needed to be served with his application. The transcript then records the following:

THE COURT:

Judge Davidson has ruled that the matter is not to be served because the issue
– could you please stand up.

MR BURROWS:

I am standing Sir.

THE COURT:

Take your hands [off] the desk.

MR BURROWS:

Perhaps I’ll get you a dictionary for Christmas, you don’t seem to understand simple words like “stand”.

THE COURT:

To the cells. That’s, I am not having that behaviour.

MR BURROWS:

What behaviour?

THE COURT:

Place him – you are not standing here abusing me –

MR BURROWS:

I’m not abusing anyone.

THE COURT:

You are in contempt.

MR BURROWS:

I’m not abusing anyone.

THE COURT:

You are in contempt.

UNIDENTIFIED MALE 1:

You’re in contempt, let’s go bro, do we take him downstairs Sir?

THE COURT:

Please.

[7] Mr Burrows was taken to the cells in the courthouse at about 3.05 pm. Judge Smith then spoke to Ms Graham, the duty solicitor, and asked her to talk to Mr Burrows.

[8] The Court resumed at 3.43 pm. The transcript reads as follows:

THE COURT:

Ms Graham, I take it you’ve had an opportunity to speak with Mr Burrows?

MS GRAHAM:

Yes I have Sir.

THE COURT:

And he understands that to purge the contempt he needs to apologise?

MS GRAHAM:

Yes I told him that Sir.

THE COURT:

Thank you, bring Mr Burrows back please.

THE COURT:

Mr Burrows, I want you to listen carefully to what I have got to say. I have held you in contempt and I will come to the consequence of that in a moment. But if the contempt is not purged, then I propose to continue this hearing in your absence. I will deal with the matter on the basis of your written submission –

MR BURROWS:

Sorry Sir, could you speak up a little, I’m finding it difficult to hear.

THE COURT:

I have held you in contempt and I’ll come to the consequences of that in a moment. You have been given advice as to how that attempt – contempt may be purged. If you do not purge the contempt by apologising, I intend to continue this hearing in your absence. I will deal with the matter on the basis of your written submissions and determine the question as to whether your application for harassment restraining order should be dismissed or not. If you do not purge the contempt, I intend to sentence you to jail until next Monday.⁶ The choice is entirely yours. If you purge the contempt you may take part in this hearing for as long as it takes, provided that you are civil, do not talk over me, answer questions when asked, do not shout and do not try to intimidate me, albeit at a distance by your physical behaviour. Is that understood?

MR BURROWS:

Yeah, I understand.

⁶ If that sentence had been imposed, Mr Burrows would have been imprisoned for three days.

THE COURT:

Right, do you apologise.

MR BURROWS:

I apologise.

THE COURT:

Thank you, take a seat.

[9] The transcript reveals therefore that Mr Burrows was found to be in contempt of court and that he was detained in the court cells for close to 40 minutes. The transcript also shows that Mr Burrows “purged” his contempt by apologising to the Court. The effect of Mr Burrows’ purging his contempt is that he has no record of a criminal conviction, notwithstanding he was found to have committed contempt in the face of the court.

[10] The hearing proceeded without further incident. On the following day, Judge Smith issued the reasons for his decision striking out Mr Burrows’ application for a restraining order against Ms Thomson.

[11] At the end of the hearing, Judge Smith issued a minute about what had transpired that afternoon. Judge Smith explained in his minute that when addressing the Court Mr Burrows “slouched against the back wall and [that he] insisted [Mr Burrows] stood up straight”. Judge Smith’s minute then records:

He abused me on the basis that I was breaching his rights under the New Zealand Bill of Rights. I advised him that if he was to continue in that manner he would be held in contempt of Court. He then proceeded to argue with me on other matters with his hands on his hips and shouting at me to make the points he considered the statements I was making were wrong.

His physical appearance and his behaviour was intended to bully me.

I advised him that that was the second warning that I was giving him of contempt of Court and there would be no other.

He then shortly after made a statement suggesting that comment I had made indicated I needed to buy myself a dictionary. In my view that last statement was also contemptuous of the Court. In accordance with the warnings that I had given him, I had him taken and placed in the cells.

Contempt in the face of the court

[12] Section 212 of the District Court Act 2016 is a primary source of the law concerning contempt in the face of the District Court. Lord Denning observed:7

The phrase “contempt in the face of the court” has a quaint old fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is ... in the courts. The course of justice must not be deflected or interfered with.

[13] Section 212 of the District Court Act provides:

212 Contempt of court

(1) This section applies if any person—

(a) wilfully insults a judicial officer, Registrar, officer of the court, juror, or 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.

(2) If this section applies,—

(a) any constable or officer of the court, with or without the assistance of any other person, may, by order of a Judge, take the person into custody and detain him or her until the rising of the court; and

(b) a Judge may, if he or she thinks fit, sentence the person to—

(i) imprisonment for a period not exceeding 3 months; or

(ii) a fine not exceeding $1,000 for each offence.

(3) Nothing in this section limits or affects any power or authority of the court to punish any person for contempt of court in any case to which this section does not apply.

Right of appeal

[14] Mr Burrows’ right of appeal is provided for in s 260 of the Criminal Procedure Act 2011. That section states:

⁷ Morris v Crown Office [1970] 2 QB 114 at 122.

260 Right of appeal against finding of or sentence for contempt of court

(1) This section applies if a court finds a person guilty of a criminal contempt of court, whether or not committed in the face of a court.

(2) The person found guilty of the contempt may appeal under this subpart to the first appeal court against either or both of the following:

(a) the finding of contempt of court:

(b) any sentence imposed, other than an order that the person be detained in custody until the rising of the court.

[15] Thus, while Mr Burrows can appeal the finding that he was in contempt of the District Court, he cannot appeal the order that led to his detention in the court cells as that was not a sentence imposed on Mr Burrows pursuant to s 212(2)(b) of the District Court Act.

[16] Under s 263(1) of the Criminal Procedure Act, Mr Burrows’ appeal against the finding of contempt is to be dealt with in the same way as an appeal against conviction. Section 232 of the Criminal Procedure Act therefore applies, which in the context of this case means that I must allow Mr Burrows’ appeal if I am satisfied that Judge Smith erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred, or if a miscarriage of justice occurred for any other reason.

[17] A miscarriage of justice is:⁸

any error, irregularity, or occurrence ... 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.

First ground of appeal – was Mr Burrows’ conduct contemptuous?

Mr Burrows’ case

[18] Mr Burrows maintains he did not wilfully insult Judge Smith, or wilfully interrupt the proceedings of the District Court, or otherwise misbehave in court. He also submits he did not wilfully and without lawful excuse disobey any order or

⁸ Criminal Procedure Act 2011, s 232(4).

direction given by Judge Smith during the course of the proceedings. In summary, Mr Burrows’ first ground of appeal is that none of the pre-conditions for a finding of contempt of court set out in s 212(1) of the District Court Act were satisfied.

[19] In an affidavit filed in support of his appeal, Mr Burrows has explained:

Only a few minutes into the hearing Judge Smith started picking on me for not standing up. He asked me to stand. However, this was confusing as I was standing and I told him so.

I found Judge Smith’s manner overbearing given this was such a petty issue. He then proceeded to complain that my hands were on my hips.
I expressed my dissatisfaction at the way that he was treating me. In a previous court appearance before Judge Smith, he had acknowledged that he was rude to me and I reminded him of that.

He then told me to be civil and I responded by telling him I was being civil. I was exercising my civil rights. Judge Smith was attempting to restrict those rights which is the antithesis of being civil.

...

As noted above my behaviour was civil. I was exercising civil rights. Nothing can be more civil than that.

Judge Smith was acting in a petulant irresponsible manner by turning how I was standing and where my hands were into a conflict that he was escalating to contempt.

He claimed that “talking over him” was sufficient for a second warning and that there would not be a third warning. What I said was “I am behaving in a reasonable manner, you are the one not behaving in a reasonable manner”.

...

In less than ten minutes I had had multiple requests to stand when I was up on my feet standing and at least two requests to take my hands off my hips.

Judge Smith initially told me to not lean against something and to stand at the desk. Later when I stood at the desk he told me “take your hands off the desk”. In between he told me not to place my hands on my hips. This is petulant.

Judge Smith then responded impulsively “To the cells”. He claimed I was standing there “abusing” him. And then said “You are in contempt”.

...

When the hearing resumed, I explained to Judge Smith that I have a chronic back problem. One of the discs in my lumbar spine is so compressed as to be almost non-existent between the vert[e]brae and consequently bulging so
much that it impinges on my nerves. At times standing without support aggravates my problem. Subconsciously I frequently get into positions that will be more comfortable for me. That afternoon I had already spent two hours frequently standing at a tutorial at Massey University. In the cell I could not get comfortable sitting on the narrow bench. I tried lying on the bench but it was too narrow to hold my back flat. So when the police officer, Constable Judd, came to take me back to the courtroom he found me lying on my back on the floor of the cell as that was the most comfortable position for me.

It is not my responsibility to explain to Judge Smith why I am leaning against something or using my hands as support on the desk. As I said my response is sometime[s] subconscious. I just move away from uncomfortable stances towards comfortable stances. Even that is sometimes dynamic in that something that is comfortable at one point may become uncomfortable if I maintain the stance for an extended period of time.

Judge Smith created this problem by being petty about the way I was standing without to use his word being “cognisant of the situation that” I was in.

[20] It is helpful to first examine Mr Burrows’ words and conduct and then determine if his actions were wilful.

Mr Burrows’ words and conduct

[21] Mr Burrows’ statements included him calling Judge Smith an “abusive psychopath”; otherwise “abusive”; “pathetic”; and, that the Judge’s observations on a point of law were “bullshit”. Mr Burrows’ final comment before being held in contempt was that perhaps he would get the Judge “a dictionary for Christmas, [as the Judge didn’t] seem to understand simple words like ‘stand’”. This last sentence was, no doubt meant to suggest Judge Smith lacked the intellect to understand the meaning of the word “stand”.

[22] The transcript reveals that Mr Burrows interrupted Judge Smith, spoke with a raised voice and did not comply with the Judge’s instructions about how to stand, place his hands and how to address the Court.

[23] An assessment of whether or not Mr Burrows insulted Judge Smith, or otherwise committed any of the qualifying acts set out in s 212(1) of the District Court Act, involves an objective assessment of the words actually used, and the conduct in question, in the context of a court hearing.⁹ Words that may be tolerated in other places

⁹ R v Powell (1994) 98 Cr App R 224 (CA).

in society may amount to contempt in a courtroom setting, even allowing for an appropriate level of robustness in the way members of the public are permitted to conduct themselves in court.

[24] There are many instances of conduct that qualifies for a finding of contempt. Accusing a Judge of not telling the truth and not being able to count is one example of language that qualified as contempt,¹⁰ as was calling a Judge a “dickhead”.¹¹ Words that are intended to cause offence to or to ridicule or to belittle a Judge in his or her court are paradigm examples of “insults” when those words undermine the standing of the Court or the administration of justice. Insults offered in the course of challenging or defying the authority of the Court will be contemptuous.¹²

[25] Calling Judge Smith an “abusive psychopath”, “pathetic”, dismissing his assessment of a point of law as “bullshit” and saying he lacked the ability to understand a simple word such as “stand” were examples of offensive words and/or words uttered to ridicule or belittle Judge Smith in his court so as to undermine the standing of the Court and/or administration of justice. Those insults were made in the course of Mr Burrows challenging the authority of the Court to control its own proceedings. By any objective assessment Mr Burrows’ language was insulting.

Wilfully

[26] Words that are uttered inadvertently or unconsciously may not be wilfully insulting. Where, however, words are spoken “intentionally” or “deliberately” with the aim of insulting the Judge, then they will have been uttered “wilfully”.¹³

[27] Mr Burrows submits that he was responding to Judge Smith’s “petulance” and trying to point out that Judge Smith was being “petty” in court that afternoon.

[28] By any view, Mr Burrows was either trying to offend Judge Smith or endeavouring to ridicule and belittle him so as to undermine the Court and/or the

¹⁰ De Montalk v District Court at Dargaville [2012] NZHC 444, [2012] NZAR 346.

¹¹ Greer v Police HC Palmerston North AP53/97, 17 October 1997.

¹² Mihaka v Police [2010] NZHC 1231; [2010] NZAR 504 (HC) at [14].

13. Lewis v Judge Ogden (1984) 153 CLR 682 (HCA) at 688; see also McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [76].

administration of justice. Mr Burrows may have responded in the heat of the moment but it was not his role to advance his theory that Judge Smith was being “petty” and “petulant”. Mr Burrows’ acknowledgements in his affidavit demonstrate that he deliberately told Judge Smith that perhaps he would get him a dictionary because the Judge did not “seem to understand simple words like ‘stand’”. That final comment was designed to cause offence or ridicule and to belittle the Court. That statement, viewed in isolation, was a wilful insult and even more so when considered in the context of everything else Mr Burrows had said and done in court.

[29] In view of this finding, it is not necessary for me to consider whether or not Mr Burrows wilfully disrupted the proceedings of the District Court or wilfully and without lawful excuse disobeyed an order or direction given by Judge Smith.

[30] Judge Smith did not err in his assessment of the evidence or otherwise cause a miscarriage of justice. The first ground of appeal is therefore dismissed.

Second ground of appeal – was Mr Burrows denied natural justice?

[31] In McAllister v Solicitor-General, Lang J explained the procedural steps that should be followed before a Judge makes a finding of contempt:¹⁴
Some minimum standards must therefore apply when a judge is considering an allegation of contempt. The judge must identify the act or acts giving rise to the alleged contempt with sufficient particularity to ensure that the person understands what is being alleged. The person must also be given the opportunity to take legal advice so that he or she understands, and if appropriate has input into, the process to be followed and the possible range of outcomes. The judge will then need to ensure that counsel appointed or engaged to advise the person is also aware of the nature of the allegations.

[32] These standards must reflect the circumstances faced by the Court, often in difficult and volatile situations. As the Court of Appeal has accepted, when “a contempt occurs in the court during the hearing of the case (as by someone creating a disturbance), it must necessarily be dealt with on the spot”.15 This observation is particularly pertinent when a Judge is forced to rely on s 212 of the District Court Act

14. McAllister v Solicitor-General [2013] NZHC 2217, [2013] 3 NZLR 708 at [45] (citations omitted); followed in Nottingham v Solicitor-General [2017] NZHC 1325, [2017] NZAR 1202 at [31].

¹⁵ Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA) at 229.

in order to regain control of the courtroom. In those circumstances, there simply may not be time to systematically follow each of the steps outlined in the passage from McAllister v Solicitor-General I have quoted at [31]. For example, it may not be possible for a Judge to arrange for legal advice to be given to a potential contemptor before the Judge orders the detention of a person who is disrupting the court.

[33] Lang J appears to have been cognisant of this fact, as immediately prior to making the above statement he observed:¹⁶

Acts that potentially amount to contempt can occur in many different ways. For that reason it is not possible to definitively prescribe the procedure to be followed in determining whether a person is in contempt and, if so, the appropriate penalty to be imposed. It has been accepted, however, that in determining whether a person is in contempt the judge is entitled to use a summary procedure that is quite different to the formal process used when a person is charged with a criminal offence. There is, for example, no formal charge and no formal plea. This reflects the fact that contempt allegations are generally dealt with quickly, and with a minimum of formality. ...

[34] In its report, Reforming the Law of Contempt of Court: A Modern Statute,¹⁷ the Law Commission recommends a clear three-step process for dealing with disruptive behaviour in a courtroom. The Law Commission recommends:

Step one: citing the disruptive person and, if necessary, having them removed from the courtroom;

Step two: hearing to determine if further action is required; and Step three: punishing the disruption.

The events that occurred in this case did not appear to progress much beyond the first of the steps set out in the Law Commission’s report.

[35] The transcript reveals that Judge Smith gave Mr Burrows two warnings that his behaviour would result in a finding of contempt. The Judge explained to Mr Burrows that he was to address the Court in a civilised manner and that he had failed to do so. The Judge also warned Mr Burrows very specifically that if he was held in contempt he would be placed in the cells. Mr Burrows had the opportunity to

¹⁶ McAllister v Solicitor-General, above n 14, at [44].

17. Law Commission Reforming the Law of Contempt of Court: A Modern Statute (NZLC R140 2017) at [3.25].

modify his conduct. The transcript shows he did not take advantage of that opportunity, but instead wilfully insulted Judge Smith by calling into question his ability to understand the meaning of the word “stand”.

[36] After Mr Burrows was detained he was then given the opportunity for independent legal advice by the duty solicitor. He accepted her advice and apologised for his contemptuous behaviour.

[37] Mr Burrows was given a reasonable opportunity to speak and behave appropriately in court. He declined to do so. There was no realistic opportunity for Judge Smith to pause and provide Mr Burrows with the opportunity to obtain legal advice before he was held in contempt.

[38] In this case, Judge Smith had to respond immediately. He did so in a way that was consistent with the text and purpose of s 212 of the District Court Act. In these circumstances, no miscarriage of justice occurred.

[39] The second ground of appeal is also dismissed.

Summary and disposition

[40] Judge Smith correctly concluded Mr Burrows had wilfully insulted the Court. The Judge also dealt with the scene he was faced with in accordance with s 212 of the District Court Act, in a way that did not cause a miscarriage of justice.

[41] Mr Burrows’ appeal against the finding of contempt by Judge Smith is therefore dismissed.

D B Collins J

Solicitors:

Ben Vanderkolk & Associates, Palmerston North for Respondent