29 August 2013

Jury Service: McAllister v. Solicitor-General

Jury service is described as a civic duty but for some it has parallels with press gangs in Elizabethan England: snatched off the streets and pressed unwillingly into service with the Royal Navy.  An Auckland engineer sentenced to jail for contempt of court when he refused jury service had the jail term replaced on appeal by a $750 fine.
David James McAllister attended Auckland District Court in July 2013 on a jury summons.  On this first day he was not called to be on a jury and was free to leave by lunchtime.  He was required to turn up the following day.  On the second day he was selected for jury service on what was scheduled to be a three week trial.  He asked to be excused, saying he had work commitments as a self-employed engineer maintaining Kordia’s telecommunication network.  The trial judge said he was excused, but was required to return on day three for any jury to be selected for a shorter trial.  Again he had lost a morning’s work.
Attending on the third day, Mr McAllister was selected.  After the judge presiding at this trial refused to excuse him, Mr McAllister refused to be sworn in as a juror.  He told the judge that work pressures meant that he could not properly fulfil his role as an impartial juror.  While the trial judge was not given the detail, it was to come out in High Court evidence that Mr McAllister was then currently committed to a major repair on a Kordia transmission tower in the Manawatu requiring the co-ordination of 15-20 specialist contractors.
The High Court heard evidence of rapidly rising tensions in discussions between the trial judge and Mr McAllister.  Mr McAllister’s refusal to be empanelled meant there were insufficient numbers left in the jury pool to make up the twelve needed for a jury.  It was to come out in the High Court that the trial judge had already excused some ten potential jurors from sitting on the jury before Mr McAllister sought also to be excused.
The trial was abandoned and all jurors told to report again the next day. 
When Mr McAllister attended the following morning with the remainder of the jury pool he was singled out by the trial judge, told he was in contempt of court for failing to be sworn in as a juror and then again in contempt when he had changed his mind saying that he would sit on a jury.  Mr McAllister spent the day in the courtroom cells before being called back before the trial judge at the end of the day.  He was then sentenced to ten days in jail for contempt.
On appeal to the High Court, Justice Lang cautioned trial judges in their summary use of contempt proceedings.  Judges fining or jailing jurors for contempt simultaneously fill the role of complainant, witness, prosecutor and judge.  There is no formal charge read and no formal plea taken.
Justice Lang said there was no urgency requiring the trial judge to deal with any alleged contempt by Mr McAllister that day.  The matter could be adjourned to a later date. There was a risk the trial judge would reach a decision without hearing the full story.
Justice Lang ruled that refusing to be sworn in as a juror without lawful excuse was a contempt of court.  At the time, Mr McAllister did not provide an adequate excuse.  To the trial judge he simply appeared to be avoiding jury service and that amounted to contempt of court.  Justice Lang ruled that a prison term was excessive.  The day spent in the cells and a $750 fine was sufficient punishment.  The High Court took into account that Mr McAllister had turned up to court each day as required by his jury summons and had attempted to atone for his contempt by belatedly offering to serve on a jury.
Justice Lang said the later offer to serve was not a separate act of contempt.  It was an offer to rectify the unfortunate situation he had created by refusing to take the oath.
McAllister v. Solicitor-General – High Court (29.08.13)
13.023