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