Dermot Nottingham leave to appeal to Supreme Court dismissed

Dermot Nottingham failed in a bid to be granted leave to appeal to the Supreme Court against conviction and sentence. A judgment today said that “No question of general or public importance accordingly arises” and nothing “raised by Mr Nottingham give rise to the appearance of a miscarriage of justice arising from the Court’s assessment”.

This isn’t a surprise.

Mr Nottingham was convicted following a jury trial of two charges of  publishing information in breach of suppression orders and five charges of criminal harassment.

The prosecution had said they were the worst of many examples they found, but that’s debatable.

He was sentenced by the trial Judge, Judge Down, to a term of 12 months home detention and 100 hours of community work. His appeal to the Court of Appeal against conviction and sentence was dismissed. The Court allowed the Solicitor-General’s appeal against sentence.

Both the prosecution and the Solicitor-General had suggested that a multi-year jail term was warranted. While jail was considered it was replaced with home detention.

The Court quashed the part-served sentence of home detention and imposed a new sentence of 12 months home detention together with 100 hours of community work.

Mr Nottingham seeks leave to appeal essentially on the basis a miscarriage of justice has occurred.

The Court of Appeal said first that there was no error in the way the Judge directed the jury as to the relevance of truth. The Court considered that the jury was “legitimately entitled to take into account truth or falsity in its assessment of offensiveness, but it was only one part of a composite of considerations relevant in that respect”.

Second, the Court noted that, in any event, on the particular facts the “truth or falsity analysis” on which Mr Nottingham’s submission was based was “academic”. In this respect the Court said:

Much of what was published could at best be described as virulent opinion with only a tangential connection to anything arguably true. And in respect of many of the comments, we regard even that description as excessively
generous. As the Crown said in closing, the posts were littered with “hate-filled [invective]” and were strongly misogynistic.

The Court went on, after discussing various examples of the type of language and descriptions used, to say:

It was not unreasonable for the jury to identify such material as offensive. The assessment was one appropriately informed by the composite of community values which it represented. It is one that an appellate court would be more than usually reluctant to interfere with. And to the extent truth or falsity did impact on the analysis (as the Judge recognised it had the potential to do, at least at the margins), assessment of the honesty and reliability of witnesses was again a classic jury function.

As is apparent from these excerpts, the observations about the question of truth very much reflected the particular factual context and were limited to those facts. No question of general or public importance accordingly arises. Against that factual background, nor does anything raised by Mr Nottingham give rise to the appearance of a miscarriage of justice arising from the Court’s assessment.

The other proposed questions can be dealt with shortly.

The Court, having set out the relevant evidence, accepted the Crown submission the circumstantial evidence provided a
“very strong, if not overwhelming” Crown case. Nothing raised by Mr Nottingham gives rise to the appearance of a miscarriage of justice as a result of this assessment.

Nor does anything advanced by Mr Nottingham give rise to any appearance of a miscarriage of justice arising in respect to the other two proposed grounds of appeal we have set out.

So a total fail for Nottingham on this appeal, an outcome he must be familiar with. he has had a dismal record in many court proceedings over the last five years (disclosure – including  failed attempt to privately prosecute myself and a number of others, incurring hundreds of thousands of dollars in costs that resulted in him being declared bankrupt).

And the Supreme Court must be the end of the legal road for Nottingham in this case.

Full decision:  Dermot Gregory Nottingham v The Queen

The criminal harassment charges also related to publications on Lauda Finem.

Nottingham was found to have been largely responsible for many publications at Lauda Finem (along with a number of accomplices), some of which seem to be still published online. That may leave him vulnerable to further legal action. I’m surprised courts haven’t dealt with them by now.

The @LaudaFinem twitter account was finally suspended about a month ago.

Mass attacks and killings

The London bridge stabbings were awful, with two people murdered.
RNZ: London Bridge attack: two dead after ‘terror’ stabbings

British authorities have named the suspect who was shot dead by police after a stabbing spree that left two members of the public dead, with three in hospital.

This is a concern: Boris Johnson says 74 terror prisoners released early

This is not regarded as terrorism so probably won’t be reported here: Brighton crash: Three men hit by car during ‘fight with weapons’

Police said three men were struck by the car as a large group of people fought with weapons in Marine Parade at about 05:20 GMT.

A “fast moving investigation” had established the attack was not terror-related, Sussex Police said.

Meanwhile another mass shooting in the US: Eleven shot near New Orleans’ French Quarter

Police in New Orleans say there have been 11 victims of a shooting incident near the French Quarter tourist hub. Two people are in critical condition, with shots to the chest and torso respectively. No fatalities have been reported.

And this will probably hardly make the news here: Mexico gunbattle near Texas border between suspected cartel members, police leaves at least 21 dead

National’s Law and Order ‘discussion document’

The release of National’s Law and Order Discussion Document has prompted a lot of discussion.

I can’t find a way to see the actual discussion document, it is supposed to be here but it appears that you have to answer a questionnaire before you get to see the document.  Ah, ok, I have worked out how to view the document, it’s in a document viewer.

David Farrar has summarised major proposals at Kiwiblog:

  • Using social investment to reduce offending and prevent crime and harm
  • A specialist anti-gang taskforce within Police
  • Gang members whose offending is gang-related lose eligibility for parole
  • Gang-related offending to be added as an aggravating factor in the Sentencing Act
  • Possibly remove the ability of the court to do concurrent sentences for the most serious offending (ie if you rape three people you get three sentences for rape, not one sentence which is only slightly longer)
  • Make victim notifications when criminals are released the default (ie opt out, not opt in)
  • Murderers who don’t reveal where bodies are, lose parole eligibility
  • Will wider clean slate scheme for young offenders so offences wiped at age 18 if they have only one minor conviction, they do extra community service, get Level 2 NCEA numeracy and literacy and stay out of trouble until they are 25
  • All prisoners (unless dangerous) to be in work, education or training
  • Parole eligibility for low and medium level offenders to require NCEA Stage 2 literacy and numeracy

Some of those seem sensible, and in fact some are already being done to some extent, for example prisoners “in work, education or training”.

Some seem unworkable or unfair – “Murderers who don’t reveal where bodies are, lose parole eligibility” means that those who have been wrongly found guilty and get a life sentence would have no way of getting parole.

And “Parole eligibility for low and medium level offenders to require NCEA Stage 2 literacy and numeracy” is unfair on those with genuine learning difficulties, and a lot of those who end up in prison have basic literacy and numeracy deficiencies.

This media release headline is lame: National is the Party of law and order.

This one is appealing to voters National to put victims at the centre of Justice:

“National believes victims should be at the heart of the justice system. Victims often report feeling let down at sentencing when the person who committed multiple crimes against them only has to do the time for one offence.”

More has to be done to address concerns of victims, but offenders and potential have to remain a major focus.

“We believe communities should be kept safe from the most dangerous criminals so there are fewer victims of crime.”

Oh wow, that’s innovative. That’s not worth discussing.

National proposes banning gang patches in public:

National is proposing banning gang patches and insignia in public so we can take back control from the gangs.

That’s been proposed before but has never happened. I have no idea how it would “take back control from the gangs”. And I have no idea how they would define ‘gang’ and “patches and insignia”.

Parole is a privilege, not a right

The National Party is today proposing tougher measures for prisoners to get parole so that the privilege is not abused.

A major change in sentencing?

“National is the largest and most popularly supported party in Parliament.”

That’s debatable. The latest poll suggests otherwise. Saying it doesn’t make it so.

“National is the largest and most popularly supported party in Parliament. We’re doing the work in Opposition so we’re ready to hit the ground running in 2020. We’re also the party of law and order. The current Government wants to lower the prison population but has no plan to reduce crime. We will ensure criminals are punished for committing crimes, but also that prisoners are rehabilitated so they go on to lead productive lives.”

This is odd promotional crap for a press release.

National to speed up the court process

Having been a victim of very slow and inefficient and unfair court processes – prosecutors should have to comply with court rules and not continually abuse them – this sounds like a good idea. This year’s review into the justice system hardly seems to have tried to address this.

We’d also like to see Justices of the Peace used more for minor offences and traffic cases to free up judges time and courts used at night and on weekends. Most courts sit for four hours a day. Where there is legitimate need, and where the Court can sit, we would extend those hours to ensure people don’t have to wait months for their cases to be heard.

To use courts at night and weekends you would need a lot more JPs, judges and staff.

Judges do a lot of work outside of sitting times, so it is not just court hours that slows things down.

Strike Force Raptor Unit proposed to tackle gangs

National is proposing a new unit within the Police which would crack down on gangs and allow us take back control. A unit like ‘Strike Force Raptor’ would interrupt gang activity. If someone was punched outside a nightclub by a gang member, the unit would take over the case. If gang members didn’t pay their traffic fines, it would follow up to ensure their driver licences were taken away.

I think there’s a lot more serious things than those examples that need more attention. Those are really odd examples. Do gang members care about drivers licences now?

The specialist officers would check gang clubhouses and use council rules to shut them down for shoddy workmanship or unconsented work. If alcohol was being served at the gang pad, it would invoke legislation so the gangs need a liquor licence. Officers could check benefit payments and tax records for taxpayer assistance gang members weren’t entitled to.

I think that more attention should be given to trying to address things like violence and drug pushing.

I’m cynical – most of those looks like dressed up populist promotional material. Rhetoric in opposition usually doesn’t come to much when coming up against the realities of government.

Newsroom: Strike Force Raptor unit won’t stop organised crime

The National Party wants to set up a special police unit designed to disrupt, and ideally do away with, gangs.

The unit would be modelled after New South Wales’ Strike Force Raptor Unit, which was set up a decade ago, after a violent gang murder at a Sydney Airport.

The purpose of the unit is to disrupt activity of outlaw motorcycle gangs, by going after gang members and associates at every available opportunity.

But an Australian gang experts says a lot of resources go into the unit’s work, with little reward, especially when it came to the broader issue of organised crime and drug trafficking. Meanwhile, there were some concerns about the conduct of the elite squad.

Maybe National could do it better.

In October, police put the total number of patched gang members at 6735. The number of gang members has risen by about 1400 since this Government came into power.

While thereare many complex factors that have led to the rise in the number of gang members, the proliferation of methamphetamine, and related crime, National has attributed it to this Government’s “soft on crime” approach.

Hudson said gangs peddled misery in communities through manufacturing and dealing drugs, and carrying out violence.

“A unit like Strike Force Raptor would interrupt gang activity,” he said, as the party launched its law and order discussion document.

It may interrupt some gang activity, but would it really have a major affect on crime? Criminals generally find ways to work around the laws, whatever they are.

Do the strike force units work?

Goldsworthy said he had reservations about the amount of police resources and time that went into this type of policing for not a lot of reward.

While they were disrupting gang members regularly, he questioned whether they were actually stopping organised criminal activity, or just stopping a gang member for going to the pub. Goldsworthy noted the general crime rate continued to rise, despite these types of initiatives.

Bikie gangs in Australia committed less than 1 percent of all crime, he said, adding that this did not match up to the amount of focus and resources thrown at gangs.

Like many other gang and organised crime experts, Goldsworthy said the focus on bikie gangs missed the wider issues surrounding organised crime.

Not every member of a bikie gang engaged in criminal activity, and members that did engage in serious criminal activity like drug trafficking often did not do so as part of a gang chapter but rather outside the group.

There needed to be a smarter focus on those who were committing crime, rather than focusing on patched gang members because they were visible, and it was an easy political win.

Goldsworthy referenced some European countries that were moving towards focusing on markets, rather than groups of people. For example, if wastewater testing showed high levels of cocaine, law enforcement resources would be put into disrupting the market, rather than going after a group of people assumed to be trafficking.

Bridges from his speech:

To me it all raises one fundamental question. Are we serious or not? Like most New Zealanders, National isn’t fooled by gang PR campaigns. We know gangs peddle misery in the form of meth and violence and so we are serious. The Government I lead will harass and disrupt gangs every single day I am Prime Minister, with the single minded goal of eliminating them.

Will that include harassing innocent people because they are perceived to be a gang member?

 

Plenty to discuss from that.

 

 

 

Grace Millane trial – closing arguments

I have tried to avoid a lot of the media detail on the Grace Millane murder trial, but what I had seen made me think it was tending to look like not guilty of murder, but as the defence has claimed, ‘rough sex’ gone badly wrong.

But I read through a summary of the prosecution and defence final arguments in the case yesterday, and that leant me back towards a reasonably possibility of a guilty verdict. There are some aspects that just don’t seem to be accidental, like if someone is being strangled this takes time – several minutes at least – and surely the person putting pressure on another persons throat would notice the victim go limp.

And what is alleged to have happened immediately after death – watching porn, googling Waitakere ranges (where the body ended up being buried) and “hottest fire”, and taking photos of the body (the defence claim there is no proof she ws dead then), don’t fit with the defendant’s claim that they had sex, he had a shower and went to bed and found Millane dead on the floor in the morning.

And then there is the burying of the body and the lying to police.

Stuff have a detailed report on the prosecution and defence final arguments here (read from the Live section bottom to top) – Grace Millane murder trial: Crown and defence sum up the case

Reports from Stuff – Grace Millane murder trial: A ‘compelling case of murder’ or an unforeseen accident?

And: Grace Millane murder trial: Judge to sum up the case

The jury deciding the case of the man accused of murdering Grace Millane will hear a summing up from Justice Simon Moore on Friday.

The jurors will then retire to consider their verdict at the High Court in Auckland.

They have heard closing arguments from the Crown and defence lawyers, as well as weeks of evidence.

It’s difficult to know what the outcome of a trial like this will be from a smattering of media reports only. The jury has heard all the evidence and arguments, and will make decisions based on all of that.

It looks unlikely there will be verdict today or this week.

Nottingham conviction and sentence appeal – judgment

The Court of Appeal judgment of Dermot Nottingham’s unsuccessful appeals against conviction and sentence (and the successful Crown appeal calling for a harsher sentence) is now online – NOTTINGHAM v R [2019] NZCA 344 [30 July 2019].

The judgment found that there was strong evidence linking Nottingham with harassing and defamatory posts on the Lauda Finem website – I will cover this in more detail in another post.

Nottingham’s argument in his defence were in part self-defeating. He claimed:

  • Posts on an overseas based blog (Lauda Finem) were not covered by New Zealand law.
  • There was no evidence that he was responsible for the posts.
  • The posts were truthful so could not be deemed to be harassment or breaches of suppression.
  • The five people he was found guilty of harassing “started it” and deserved to be attacked.

The trial jury, the trial judge and the three Court of Appeal judges disagreed with him on all these claims.

His sentence was increased to 31 months in prison, but as he had already served three and a half months home detention this still qualified him for a home detention sentence. While the offences were judged to be serious he was largely spared time in prison due to serious health problems. He was re-sentenced to a further 12 months home detention (including a ban on using the internet), 100 hours commununity service, plus a further six month ban on using the internet after home detention finishes.

He was originally charged in 2015 and went to trial last year after a number of delays.

Following a five-week jury trial before Judge Down, Mr Nottingham was convicted in May 2018 of five charges of criminal harassment and two charges of publishing information in breach of a suppression order. He was subsequently
sentenced by the Judge to 12 months’ home detention and 100 hours of community work. He appeals both his conviction and sentence. The Solicitor-General also appeals the sentence, on the grounds of manifest inadequacy and error in principle.

The suppression charges:

In his summing-up, Judge Down directed that publication of the brothers’ names had occurred in New Zealand in breach of the suppression order. The key issues for the jury were, therefore, whether Mr Nottingham was the publisher or a party to the publication, and whether he had done so knowingly or recklessly in breach of the suppression order

The criminal harassment charges:

In the course of investigating the breaches of name suppression, the police identified a number of LF articles which they considered amounted to criminal harassment. Charges were laid in respect of five complainants, all of whom have been granted permanent name suppression and who we will refer to as T, C, H, B and M. The common denominator between them all was that they had at some stage crossed Mr Nottingham’s path in circumstances he took issue with.

In respect of each complainant, articles appeared on the LF website containing material the Crown alleged was “offensive” in terms of the Harassment Act 1997.

The articles included names, photographs and other personal details indicating extensive background research on each of the targets. It was alleged that some of the photographs had been obtained by Mr Nottingham or by one of his associates at Mr Nottingham’s direction. It was common for Mr Nottingham to ensure that articles were drawn to his complainants’ attention by providing them with the electronic links. The Crown also alleged various other acts of harassment — including “following” and in one case initiating a private prosecution.

At the same time he was being prosecuted for those offences Nottingham and associates continued act in a similar manner, as the many ongoing attack posts on LF show. He also unsuccessfully attempted four other private prosecutions, including one against myself. Two of these went to trial and were dismissed and described as vexatious.

As he attempted several times in my case he applied to adduce new evidence, usually a last minute stunt (the morning of hearings and in two cases during a hearing).

Mr Nottingham filed four affidavits, including one of 333 paragraphs by his brother, P R Nottingham. We assume the premise to be that they represent fresh or relevant new evidence.

We do not regard any of this material as meeting the test for admission in Lundy v R. It is neither fresh, nor (in most cases) relevant.

That sounds very familiar.

The breach of suppression order charges:

Mr Nottingham pursues two arguments:

(a) LF is overseas domiciled and “you cannot be a party to a crime that never occurred in an overseas jurisdiction”.

In his summing-up, the Judge directed that, as a matter of law, publication occurs where material is comprehended and downloaded and that accordingly there was publication in New Zealand irrespective of LF’s domicile. He said that this was a function of “Judge-made” law and that it was also a feature of s 7 of the Crimes Act 1961.

We identify no error in that direction. It did not involve any assumption of extra-territorial jurisdiction. It stated what we regard as a now uncontentious proposition: that a blog available to New Zealand internet users is regarded as published in New Zealand.

They make it clear that using an overseas based website (like WordPress) does not exempt you from New Zealand law if  it is directed at a New Zealand audience.

Physical location of the LF server was, in that context, irrelevant. What was required was proof either of direct publication (that Mr Nottingham was LF), indirect publication (that Mr Nottingham was a co-principal with LF, working directly with it to effect publication in New Zealand) or that he was a party to LF’s publication. That is exactly as the trial Judge put it to the jury, supported by an accurate description of the “party” requirements. Mr Krebs is correct that the question of whether Mr Nottingham “caused” the publication (in any of the legal senses relevant) was a matter of fact for the jury. No error of law was made by the trial Judge.

(b) The Crown failed to establish to the criminal standard that he was either the publisher of the material or a party to its publication.

The Crown advanced a circumstantial case. As Mr Nottingham reminded us, there was no “smoking gun” in the sense of an email attaching a final draft of the articles sent to LF. Nor was there any “electronic footprint” on any of the computers searched by the police which demonstrated that the article, as published, had originated from Mr Nottingham.

…Turning then to the circumstantial evidence relied on by the Crown to establish publication, we agree with Ms Brook that it was very strong, if not overwhelming.

I will cover this more detail in the next post,

We are not therefore satisfied that the verdicts on the breach of suppression charges were unreasonable or that the convictions resulted from a miscarriage of justice.

In Nottingham’s hapless attempt at prosecuting me (and three others) he claimed that we had in some convoluted way enabled people to find their way to suppression breach posts on LF – posts that he has been found guilty of posting.

Conviction appeal — the criminal harassment charges

Again, both the Crown and Mr Krebs submit that the appropriate approach is to treat Mr Nottingham’s appeal as essentially a challenge to the reasonableness of the jury verdicts. We agree, although noting that the main focus of Mr Nottingham’s second set of written submissions (filed on the morning of the appeal hearing), and of his oral submissions, was on the proposition that he ought not to have been convicted because the statements made in the articles (whether by him or not) were true or, alternatively, opinions based in truth.

…Identity (in the sense of responsibility for the acts either as principal or party) was therefore in issue on all charges. Again, Mr Nottingham’s position (both at trial and on appeal) was that there was no evidence of information being communicated from computers under his control to the LF website. And again, the Crown case was (and is) the evidence identifying him as the “driving force” behind the harassment was, if not overwhelming, certainly very strong. We start with that issue, because of its relevance also to the breach of suppression convictions.

We do not consider it necessary to set out all of the circumstantial evidence relied on by the Crown to establish identity in respect of each of the harassment charges. We agree that the jury’s conclusion on the facts was one reasonably available to it. Indeed, we consider it almost inevitable.

In the case of T, Mr Nottingham sent her a link to the first article immediately after it was published and a draft, created two days before publication, was found on a computer to which he had access. In addition, images appearing in the other articles were found on the same computer.

In the case of C, word versions of all three articles were found on a computer to which Mr Nottingham had access together with images from the articles. Likewise, drafts of other unpublished articles were also found.

In the case of B, although no draft of the principal article (published on 24 April 2013) was identified, the draft of another “unpublished” article (prepared approximately a year later) was found, and this contained very similar references to the 2013 publication. For example, the published article interposed the description “belted” between the complainant’s first and last names, and the draft contained the phrase “Beat Me”. The published article described her as “a stupid troll”, the draft as a “dumb cow” and “complete fuckwit”.

In the case of H, a word version of the first article was found on one of the computers, together with photographic images which were included in the articles and a screen shot of H’s Facebook profile. Likewise, screenshots of images in the third article were identified, as was the draft of another unpublished article in a similar vein.

And in respect of M, a word version of the first article was found on a computer to which Mr Nottingham had access together with the image of H which appeared in the same article.

In addition to this specific evidence, there was also a body of general evidence establishing either that Mr Nottingham was LF, a co-principal of LF or was, at a minimum, a party to the publications.

Although much was made of the fact that others had access to the computers at Mr Nottingham’s Hillsborough residence, particularly his brothers Anthony and Phillip, there was ample evidence that Mr Nottingham had overall responsibility and control. For example, there was an email in which Anthony told Mr Nottingham to stop treating him “like one of your fucking employees”.

Funny. While the Nottinghams, and other associatess like Earle McKinney, Marc Spring and Cameron Slater, where all involved in various ways in various campaigns of attack and harassment, they didn’t always get along with each other. very well.

By a wide margin we conclude that on the issue of “identity”, Mr Nottingham fails to satisfy us that the jury’s verdict was unreasonable.

Nottingham has tried to claim or imply it wasn’t him, but if it was it didn’t matter anyway.

Mr Nottingham cast the prosecution as an attack on his unalienable rights of free speech and as having a “chilling effect” on his “legitimate exercise of natural and legal rights”. He said that truth is a complete answer to any allegation that material given to any person or placed on electronic media was offensive within the terms of the Harassment Act.

Except that as is made clear later while posts at LF may have been based on skerricks of truth they were substantially embellished and bolstered by false claims.

The trial judge is quoted:

It has been pointed out already that given the highly inflammatory and abusive language used to impart the truth in some of these Lauda Finem articles, the Crown says that claim of truth is something of a red herring. It is also fair to say that even truthful allegations can be made and repeated in ways that are intended to and do in fact harass.

You might remember [C] in cross-examination saying effectively that these things are not true (was her response) but, even if they were, it does not mean that they can be repeated and presented in this way, in a way that makes me feel harassed and frightened.

The Court of Appeal:

We do not consider the trial Judge to have erred in his approach to this issue. The jury was legitimately entitled to take into account truth or falsity in its assessment of offensiveness, but it was only one part of a composite of considerations relevant in that respect.

Much of what was published could at best be described as virulent opinion with only a tangential connection to anything arguably true. And in respect of many of the comments, we regard even that description as excessively generous.

As the Crown said in closing, the posts were littered with “hate-filled [invective]” and were strongly misogynistic.
T was, for example, described as a “useless fucktard” and “scum of scum of scum and then some scum”. It was said that she wanted an identified person dead and was operating “in a similar fashion to the manner in which the [Nazis] singled out the Jewish community”. In respect of C, her surname was predicated by the sobriquet “cumsac”. And it was said she needed to be “brought to justice before she commits very serious offending such as murder”.

M was described as a “bent ex-cop” with the suggestion he was “on the take” (allegations vehemently denied and never established).

I have seen Nottingham claim many things (in court documents) as truth and evidence that has not been backed up with any actual evidence.

Anyone who has read through posts on LF will recognise this style of attack that bears very little semblance to “truth”.

It was not unreasonable for the jury to identify such material as offensive.

Now the bit where Nottingham claims he was justified in doing what he also tried to claim he didn’t do.

We also note that the “lawful purpose” which Mr Nottingham asserted at trial was his ability to respond to actions by the complainants which he considered to be unlawful or unjust.

(H was alleged to have been complicit in her husband’s operation of a website Mr Nottingham considered to be fraudulent; M was alleged to havemisconducted himself in office in a way which resulted in financial loss to
Mr Nottingham; C had made a police complaint about an associate of Mr Nottingham’s he alleged to be false; T had made accusations he considered baseless and B had assisted H’s husband).

A similar point appears in his written submissions on appeal, where he refers to “the issue as to whether the complainants had contributed to their problems”, albeit in a paragraph which combines submissions in relation to both conviction and sentencing. In oral submissions he further urged on us the fact that “they started it”.

We note the inconsistency of that argument with his underlying proposition that there was inadequate proof he was either the publisher of the LF articles or a party thereto.

However, that aside, the proposition that “they deserved it” was self-evidently not a defence to the charges Mr Nottingham faced.

We are also satisfied that the jury’s verdict was not unreasonable in its implicit acceptance that the intention/knowledge requirements in s 8 of the Harassment Act were proven.

The Crown case was that anyone who discovered they were a target of LF would reasonably fear for, among other things, their mental wellbeing and that this was plainly intended by Mr Nottingham, or at least he knew that it was a likely result.

As previously stated, attacks along similar lines continued on LF at the same time that Nottingham was being prosecuted – and he was protected from public exposure with name suppression.

T’s concerns included to her physical wellbeing. This was because of photographs posted to the site from someone who had clearly been tracking her movements and because the phrase “two head shots to be sure”, had been inserted  between her first and last names in the 29 April 2013 article. Her fears were compounded by the fact that the article was forwarded to her with a link to a scene from the Quentin Tarantino film “Pulp Fiction” which showed a person being shot in the head.

Although Mr Nottingham suggested that this was a reference to T’s treatment of certain people, we agree with the Judge that “it is not unreasonable and should have been foreseeable that those statements would be read as a threat towards [T]”.

I had implied death threats directed at myself on LF and Twitter, but I suspect it more likely to be via associates.

Nottingham submitted that the trial judge:

… did not fairly sum up the competing evidence, effectively casting aside the evidence that established that [the complainants] were not telling the truth, when the prosecution was alleging defamation.

But:

In this case, we regard as compelling the following exchange between the Judge and Mr Nottingham which occurred in chambers immediately after the summing-up:

The Court: All right, now any matters arising?

Mr Nottingham: Sir, may I comment that that was a very fair summing up.

The Court: Thank you. I tried very hard to ensure that it was.

Mr Nottingham: It was.

A number of other complaints were dissected and overruled.

Accordingly, Mr Nottingham’s appeal against conviction is dismissed.

The sentence appeals

The sentence was premised on the following findings of fact which we agree were consistent with the jury’s verdicts:

(a) Mr Nottingham either was LF (in other words the leading mind of that blog) or he was so intimately related to it that it was proper to conclude that he provided information and draft articles to that blog knowing and intending that they would be published.

(b) Publication and other intimidating and harassing conduct was either carried out by Mr Nottingham himself or at his direction and he knew his conduct was likely to cause the individuals involved to fear for their safety or that of family members.

(c) Although Mr Nottingham may, at least initially, have reasonably believed he had legitimate grievances in respect of the complainants, he elected to pursue these, not by lawful and reasonable means, but by personal attacks on an “anything goes” basis.

The trial judge on the harassment charges…

…it went “without saying” that all of the offences were sufficiently serious to justify a starting point of imprisonment.

CoA:

In respect of the breach of non-publication orders, the Judge noted the Crown submission that the maximum penalty of six months’ imprisonment be adopted as the start point. The Judge categorised these breaches as blatant and contemptuous and noted Mr Nottingham showed no remorse.

In respect of the combined total starting point of two years and four months’ imprisonment, he then gave a four-month discount to reflect what he described as Mr Nottingham’s “multi-faceted and complex” health problems, which in the Judge’s view meant that a sentence of imprisonment would be much harder for him than for an average middle-aged man in reasonable health. He identified this as the only mitigating factor resulting in a provisional end sentence of two years’ imprisonment. That required that the Judge give consideration to home detention which, consistent with authority, he recognised as having a general and specific deterrence value.

He said he regarded home detention as an appropriate and sufficient response.

The indicated months’ home detention sentence was then apportioned in the way we have previously indicated. Special conditions were imposed including that Mr Nottingham attend counselling or treatment programmes as directed by a probation officer and that he not use any electronic device capable of accessing the internet without prior approval from
a probation officer.

Again Nottingham seems to be speaking on behalf of whoever posted at LF:

Mr Nottingham said that the sentences should be commuted to time served (three and a half months home detention) and without the requirement for community work on the primary ground that the LF articles on which the harassment charges were based were “not designed to make anyone fear for their safety”.

How would he know what the design of the posts was if he wasn’t involved?

By contrast, the Crown submitted the sentence was manifestly inadequate and that nothing less than a custodial sentence is sufficient to capture the level of denunciation and deterrence required for what it says was an egregious breach of non-publication orders and malicious and misogynistic attacks on members of the public.

Ms Brook submitted that manifest inadequacy arises primarily from the wayin which the sentences were structured, and in particular, what she says was an excessive discount for totality. She submitted that the final sentence should have been in the region of three years five months’ imprisonment, made up of cumulative sentences, save that the sentences for the two breaches of the suppression order were properly imposed concurrently with each other and cumulatively on the sentences for criminal harassment.

…Ms Brook therefore submitted that the Judge’s sentence should be quashed and a new sentence imposed in the region of two years and 10 months’ imprisonment.

We accept Ms Brook’s submission that the offending against C and T justified a 12-month starting point for each.
The language used was particularly demeaning and offensive and the fact that a photograph was taken of T without her knowledge and subsequently published must have been calculated to add to her insecurity.

The offending against B, H and M was not as serious, although there were strongly misogynistic elements in the articles about B and H and the implication that M was corrupt was clearly a very damaging one given the nature of his employment.

We consider cumulative sentences of six months (in relation to the offending against B), five months (in relation to the offending against H) and five months (in relation to the offending against M) appropriate.

In respect of the breach of suppression offences, we agree with the Judge that they were sufficiently interconnected and similar in kind to attract concurrent.

Discount for poor health

In respect of the Judge’s four-month discount for ill health, we consider that he was particularly well placed to make the necessary assessment.

We agree with the Judge that Mr Nottingham presented with a complex combination of physical and mental health problems. Several reports identify him as suffering from Post Traumatic Stress Disorder (PTSD) attributable to childhood
trauma and although Dr Skipworth says this diagnosis “is controversial in cases of life-long trauma such as Mr Nottingham describes”, nevertheless he accepts it is one way clinicians choose to diagnose and understand “long-term personality dysfunction, interpersonal relational difficulties, cognitive impairment and mood dysregulation in presentations such as Mr Nottingham’s”.

We also note a diagnosis of a traumatic brain injury sustained in a high-speed motorcycle accident in 1996 and a further serious motorcycle accident in 2016 which Dr Walls was concerned had “significantly aggravated the old traumatic brain injury”.

Likewise, Mr Nottingham suffers from a significant number of physical impairments, principal among them recurrent and serious atrial fibrillation. This condition in turn compounds the congestive heart failure from which he also suffers. Multiple hospital admissions have resulted.

Overall, we are not persuaded that the Judge was wrong to make the allowance he did.

There’s not doubt there are serious health issues (and more than what is stated here), and that prison would impose more hardship than normal.

With such a dire health report I wonder that there would be far better and more important things to do than harass people and get bogged down in lengthy court procedures.

Combining the totality and health discounts, we therefore arrive at a sentence of 31 months’ imprisonment which is approximately 30 per cent higher than the Judge’s end point.

In re-sentencing Mr Nottingham we are, however, obliged to take into account the three and a half months of home detention he has already served. Allowing a seven-month discount in this respect again brings Mr Nottingham’s sentence to a level where the Court is obliged to consider home detention. We consider that to be an appropriate sentence, particularly having regard to:

(a) Mr Nottingham’s physical and mental health, which we consider would make the consequences of imprisonment disproportionately severe;

(b) the opportunity to direct participation in rehabilitative programmes, as recognised by the Judge; and

(c) the ability to protect the interests of the complainants and the community by the imposition of restrictive conditions of internet access, again as recognised and directed by the Judge.

I hope the complainants and other victims are adequately protected.

With no sign of acceptance of responsibility nor remorse I have doubts about the prospects of rehabilitative programmes having much impact.

Our approach is therefore to impose concurrent sentences, as follows:

(a) in respect of the offending against C, 12 months’ home detention, concurrent with all other sentences;

(b) in respect of the offending against T, 12 months’ home detention, concurrent with all other sentences;

(c) in respect of the offending against B, eight months’ home detention, concurrent with all other sentences;

(d) in respect of the offending against H, six months’ home detention, concurrent with all other sentences;

(e) in respect of the offending against M, six months’ home detention, concurrent with all other sentences; and

(f) in respect of each breach of suppression, five months’ home detention concurrent with all other sentences.

The existing (part-served) sentence of home detention is quashed.

A new sentence of 12 months’ home detention (with identified concurrent home detention sentences) plus 100 hours’ community work is imposed, subject to the same conditions as imposed by the District Court.

That’s additional to the three and a half months home detention already served.

I’m aware there are some people who claim to have been badly affected by attacks by Nottingham and his cronies think that prison is deserved, but (and I haven’t been as severely affected) I don’t have a problem with the end sentence, despite him continuing with attacks and harassment while facing the charges this sentence applies to.

However if Nottingham offends again he would deserve what Court should then deal him.

I note that Nottingham tried to get a judge to put me “in prison by Christmas” in 2015 – for (allegedly and incorrectly) enabling people to find his posts at LF. But as with his double standards on name suppression – abusing and breaching it for others but claiming it for himself (as did Cameron Slater), what he wanted to inflict on others was something he tried to weasel out of for himself.

Full judgment: NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]

Bad journalism, bad blogging, bad case in Youth Court

A bad case in the Youth Court of two rapes, bad reporting, bad MP reactions, bad blogging and predictable blog comments rife with inaccuracies and misdirected blame.

Initial misleading report at Stuff: Teenage rapist ‘got off very lightly’ after admitting sex attacks on two girls

A teenager was spared jail for rape after a court heard he had a promising career as a sportsman ahead of him.

The now 18-year-old, who has previously represented New Zealand on the world stage, admitted charges of rape and sexual violation in the Auckland Youth Court.

But he will not be jailed after a judge took into account his “outstanding talent” when sentencing him for sex attacks on two teenage girls.

The teenager has automatic  and, aside from his record noting the Youth Court appearances, faces no punishment.

There was outrage on Twitter, only some of it justified.

David Farrar at Kiwiblog: Name suppression disgrace

He’s raped and assaulted two girls and he gets permanent name and not even a slap on the wrist – all because he is good at sports.

That is sickening.

I’m not saying he should go to prison. But to face no punishment at all is terrible, and no one should get name suppression for serious violent or sexual offending if they have been found guilty.

The victims must feel terrible that after what he did to them, he gets off totally. Not even community service, a fine, home detention etc. He gets zilch all because he is good at sports.

The Crown must appeal this travesty of a sentence.

Some of this is inaccurate because the Stuff report was inaccurate, but DPF has added his own inaccuracies. The offender got off very lightly, but did not get off totally.

Uninformed outrage ensued, including from a lawyer. other lawyers set the record straight…

GPT1

If you are going to rant and rave can you please get the law right. It was in the Youth Court. Suppression is the law. There was a time when you did analysis not talkback by blog.

…but as is common at Kiwiblog they were downticked for adding facts to the discussion.

Graeme Edgeler on Twitter also pointed out facts of the matter.

Stuff corrected their story: Teenage rapist ‘got off very lightly’ after admitting sex attacks on two girls

A teenager who has hopes of being a professional sportsman has failed in his bid to keep any record of his charges for rape and sexual violation from his record.

The teenager, who has previously represented New Zealand on the world stage, admitted the charges in the Auckland Youth Court.

The now 18-year-old has automatic name suppression and, aside from his record noting the Youth Court appearances, he faces no punishment.

An advocate for survivors of sexual abuse says the teenager has “got off very lightly”.

* CORRECTION: An earlier version of this story incorrectly reported that the teenager had been spared jail after a court heard of his promising sport career. In fact, because the case was heard in the Youth Court a jail term was not a sentencing option available to the judge. We regret the error.

That has been pointed out on Kiwiblog but it hasn’t stopped the outrage raging.

Even an ex-Minister of Justice jumped on the bash-wagon (albeit reacting to first the Stuff report).

For anyone who wants to understand the court judgment accurately 2018-NZYC-490_New-Zealand-Police-v-OV.pdf [311 KB]

One down, more Whale Oil sites targeted

Yesterday Matt Blomfield took control of the whaleoil.co.nz website after purchasing it from liquidators. he has it redirecting to his own site which has a postscript to the Margie Thomson book Whale Oil. It concludes:

This site — whaleoil.co.nz — now serves as a perpetual memorial to the injustices inflicted on all those people, and to Matt’s long battle to curtail falsity, bullying and manipulation.

That is a very fine ending.

It is a fine ending to the original Whale Oil blog site, which became too nasty and too toxic, with Cameron Slater and those who supplied, aided and abetted him abusing the power of media while they could get away with it.

But the website had moved onto other sites.

Some of the recent events are traceable within the records of the Companies Register. There, the dry accumulation of company names, name changes, changes in shareholdings and directorships whispers of the sheer human drama and desperate planning that has gone on behind the scenes as Slater and his supporters seemed to do everything they could think of to rescue something from their sinking ship. Social Media Consultants, then-owner of the whaleoil blog, went into liquidation. A new company, Madas 114, was set up and then shortly after became WOBH; whaleoil.co.nz became whaleoil.net.nz before morphing, chameleon-like, into a completely new blogsite. Slater passed all his shareholdings and directorships to his wife, to his accountant, and then back to his wife.

The liquidator quickly took issue with what she identified as the illegal transfer of assets away from creditors and into new entities.

In short, the estimated claims against Slater and his company so far total more than $4.7 million.

‘Fill your boots,’ Slater said a few years ago. ‘When you’ve got nothing to lose, you’re dangerous.’

His problem now is that Blomfield has nothing to lose by finishing his goal of shutting down Whale Oil – all of it.

Blomfield’s lawyer, Felix Geiringer, tweeted yesterday afternoon:

Actually an attempt has been made to distance ownership of whaleoil.net.nz and thebfd.co.nz away from Slater and his wife Juana Atkins.

One is  registered to Regan Cunliffe, a long time associate of Slater (a few years ago they had jointly planned to set up some great new media site but I think funding fell through).

The other is registered to Andrea Parkes (who provides a whaleoil.org.nz contact email address).

Blomfield has proven he has determination and tenacity. He has a very capable lawyer who also seems to have determination to see this through. And they have widespread popular support to bury a dead horse.

Slater may feel he has little more to lose, and Atkins may also be similar.

But I wonder how willing Cunliffe and Parkes may be to be dragged into the legal mire.

And for what? Trying to give life support to a toxic, failed brand? And potentially being parties to attempts to misappropriate assets in a bankruptcy and in a liquidation?


Actually, Atkins may have quite a bit to lose.

Juana Atkins did not reply to the liquidator; neither did she comply with demands to relinquish control of the assets. On August 5, the liquidator who, remember, is an officer of the Court, wrote to the police for assistance, citing six sections of the Crimes Act she believed Atkins may have breached. The police replied briefly, telling Toon she should take her complaint to the front desk of her nearest police station.

Things may be yet to catch up on her.

That same day, a link to a nasty website was circulated, devoted to taunting the liquidator in the most horrible ways.

That is dumb – and I know someone who is trying to do this. They have been a significant contributor to attacks against Blomfield and to the the downfall of Slater. And they seem intent on continuing in their destructive behaviour. That may well catch up on them too.

Dermot Nottingham appeals fail, sentence increased

The original 12 month home detention sentence (three and a half of which has been served) and 100 hours community work has been quashed, and replaced with a new sentence of 12 months home detention presumably beginning from the appeal judgment made last week. He has been banned again from using the Internet for 18 months.

After being charged in 2015 and following numerous delays Dermot Nottingham went to trial last year and was found guilty by a jury of five criminal harassment charges and two breaches of court suppression orders.  He was sentenced in July 2018.

Nottingham appealed both the conviction and sentence, and the Crown also appealed the sentence, claiming it was ‘manifestly inadequate’.  Nottingham has lost both of his appeals, and the sentence has been increased, but again by a judicial whisker he has avoided a prison sentence.

NZ Herald: Blogger’s convictions for ‘malicious and misogynistic attacks’ on former MP, business people stick

Auckland’s Crown Solicitor Brian Dickey said at Nottingham’s sentencing the breaches were an “attack on the High Court”.

Judge Jonathan Down also categorised the breaches as “blatant and contemptuous” and noted Nottingham showed no remorse.

In one instance he sent one of his victims a scene from the Quentin Tarantino film Pulp Fiction, which showed a person being shot in the head.

He can be very nasty, and has attacked many people over the last decade. The charges were laid were deemed representative of the worst examples, but that’s debatable, I have heard claims of despicable attacks (disclosure –  Nottingham has attacked me extensively including trying unsuccessfully to prosecute and imprison me, which was part vindictiveness, part an attempt to concoct a defence for the charges he faced).

All of Nottingham’s harassment victims have been granted permanent name suppression.

The Crown also alleged various other acts of harassment, including “following”, and in one case initiating a private prosecution.

I’m ware of private prosecutions against seven people or companies. These all failed, and after hundreds of thousands of dollars of court costs were awarded against him Nottingham with no attempt made to pay them Nottingham was adjudicated bankrupt in September 2018.

Nottingham, who represented himself, had also called former Whale Oil blogger Cameron Slater to give evidence and argued at his trial that his “articles” were covered by freedom of expression rights.

Slater has also been implicated in making use of the notorious attack website that Nottingham was found to have been the main user of. From his sentencing notes last year “Either Dermot Nottingham is Lauda Finem (in other words, the leading mind of that blog) or he is so intimately related to it that it is proper to conclude that he provided information and draft articles to that blog site knowing and intending that they would be published. He makes the concession…that he has never denied that he has supplied information to the website…” – see “Either Dermot Nottingham is Lauda Finem…or he is so intimately related to it…”

Nottingham and Slater have been associated in a number of legal proceedings (including the attempted prosecution of myself and three others), but others have also been involved and aided and abetted, including his brothers Phillip and Antony, Marc Spring and Earle McKinney.

During his appeal, Nottingham argued his convictions should be quashed because the blog site was based overseas.

“You cannot be a party to a crime that never occurred in an overseas jurisdiction,” he said.

So he didn’t deny attacking and defaming people on the website, he just claimed he was immune from new Zealand law.

However, in his summing-up at the trial, Judge Down said: “Even if the main parts of a crime are committed abroad, if you do something to further that crime, and you have done it in New Zealand, that crime, the whole thing can be prosecuted in New Zealand.”

The Court of Appeal judges, Justice John Wild, Justice Susan Thomas and Justice Matthew Muir, agreed.

“We identify no error in that direction,” they said.

Slater’s “unambiguous position” was it was impossible to do anything online which did not leave “footprints everywhere”, the Court of Appeal decision reads.

Despite this, the Court of Appeal sided with the Crown’s position that the circumstantial evidence relied on was “very strong, if not overwhelming”.

It included text messages and internet history showing Nottingham was trying to obtain and research information about the Dudley case, particularly the names of the defendants.

While a police search of computers Nottingham had access to identified several key court documents, including the judge’s sentencing notes, witness statements and a witness list.

Seven hours before publication of the blog, Nottingham also wrote to the police officer heading the inquiry with the subject line: “Report I Am authoring on the Dudley killing”.

The Court of Appeal said much of the harassment material “could at best be described as virulent opinion with only a tangential connection to anything arguably true”.

In other words, Nottingham attacked people making false accusations and assertions, something I have seen a lot of in emails and court documents.

“As the Crown said in closing, the posts were littered with ‘hate-filled [invective]’ and were strongly misogynistic,” the judges said.

In calculating the sentence the Court of Appeal judges arrived at 31 months’ imprisonment – about 30 per cent higher than Judge Down’s end point.

However, in re-sentencing Nottingham, the trio of judges was “obliged” to take into account the three and a half months of home detention he had already served.

“Allowing a seven-month discount in this respect again brings Mr Nottingham’s sentence to a level where the court is obliged to consider home detention.”

If that had been the original sentence last year Nottingham would have ended up in prison.

The court quashed the existing, part-served, sentence and imposed a new 12 months’ home detention term, plus the 100 hours of community work for the suppression breach.

Nottingham’s special conditions also remained, and include not using any electronic device capable of accessing the internet without prior approval from a probation officer.

I take from this that the new 12 months home detention term begins from last week’s appeal judgment. And I presume there remains a further 6 month Internet ban after that, which would run through to early 2021.

At least this and his bankruptcy (after he took nearly a year to file a statement of affairs he is due to be discharged from bankruptcy on 11 September 2022) should limit his capability to attack and harass people online should also restrict his habit of vexatious litigation.

Nottingham and his gang of online thugs remain unrepentant and a lot of defamatory attack material remains online, but that poses more risks to him than anyone. I think at least one legal proceeding continues against Nottingham for posts done years ago.

Will Nottingham try to appeal this new sentence in the Supreme Court? On past behaviour he may like to try, but the Official Assignee may make that difficult if not impossible. I need to find out, because bizarrely suppression on aspects of the failed case against me continues until his case has reached a final resolution.

When more details are available online in the judgment I will do a post on that.


Many judgments with suppression involved or from the District are not published online, but here is a reference to some of those that are:

Nottingham v Maltese Cat Limited [2019] NZCA 246 (24 June 2019)

That is just back to 2015, Nottingham has a long legal history.

I think in all but one of those Nottingham lost his case.

There is one appeal he won, where a High Court judge supported a District Court judge ruling that Nottingham was in contempt of Court, but due to the judge not following procedures correctly the finding was set aside.

Nottingham fails in court again

Dermot Nottingham has failed in another application to the Court of Appeal, this time seeking further Crown disclosure before an appeal against his conviction and sentence last year. The CoA ruled out “evidence neither before nor capable of being before the Court, or the background motives of those who did or did not give evidence, to the extent that was not already put in evidence”.

Nottingham must have been involved in more court proceedings than most over the last decade, with a very high failure rate. He used to describe himself as ‘justice campaigner’, but I think more appropriate descriptions are ‘hopeless’  and ‘vexatious’.

The latest judgment – NOTTINGHAM v R [2019] NZCA 188 [30 May 2019] – follows a hearing in 20 May – that was supposed to be an appeal hearing but was delayed until later this month as that date was reassigned to hear his application for discovery.

[1] After a lengthy jury trial in Auckland, the appellant was found guilty of two charges of breaching non-publication orders and five charges of criminal harassment. He was sentenced to 12 months’ home detention and 100 hours’ community work.

[2] The Solicitor-General has appealed Mr Nottingham’s sentence on the basis it is, she says, manifestly inadequate. Mr Nottingham has appealed both conviction and sentence. These appeals are to be heard by Criminal Appeal Division on 25 June 2019.

[3] On 13 March 2019 Mr Nottingham filed an application seeking orders for further disclosure from non-parties and the Crown pursuant to “the salient provisions of the Criminal Procedure Act 2011”.

Very ironic. In Nottingham’s private prosecution of myself and three others he repeatedly failed to provide proper disclosure, and never provided adequate disclosure, ignoring a number of legal requirements, requests and orders of the court.

[4] The non-party disclosure application was considered by this Court and declined in a judgment dated 14 May 2019…

See Nottingham refused fishing expedition by Court of Appeal.

Continued from the latest judgment:

…This judgment deals with the application against the Crown.

[7] Mr Nottingham contends that this information is relevant and necessary to due consideration of the appeals on 25 June because the police did not properly investigate the complaints made against him and there was a conspiracy including police officers to “fit [him] up”. The documents will assist him “build layers to show how the investigative process went awry”.

This is not unusual. He claimed a conspiracy involving police and court officials and media in his failed private prosecutions of APN, Prentice and Allied Press, George, but never provided any evidence.

Also “The appellants’ allegations of bias and conspiracy have been rejected by the High Court and Court of Appeal on the basis that they are not supported by the evidence.” – DERMOT GREGORY NOTTINGHAM, PHILLIP NOTTINGHAM AND ROBERT EARLE MCKINNEY V THE REAL ESTATE AGENTS AUTHORITY [2017] NZCA 145 [28 April 2017]

“Gilbert J struck out Mr Nottingham’s statement of claim in a judicial review proceeding brought against the District Court at Auckland and the second respondents alleging a criminal conspiracy to pervert the course of justice. Gilbert J found the claim was “replete with scandalous and outrageous allegations” and that no attempt was made to provide factual particulars of the various allegations of dishonesty.” – DERMOT GREGORY NOTTINGHAM v DISTRICT COURT AT AUCKLAND [2018] NZSC 110 [20 November 2018]

Earlier in the prosecution proceedings currently being appealed Nottingham accused a judge of misconduct and ‘tampering with evidence’.

[10] In open Court, Mr Nottingham raised the issue of whether or not Judge Collins should preside at the mentions hearing. He stated as follows:

I’ve filed a judicial review of your decision and of Judge Paul’s decisions in the prosecution of Mr Honey, where I was prosecutor, I’m alleging that you misconducted yourself in relation to the legal finding that a person who is a
accused cannot be cross examined on an affidavit they have produced in support of an application for the continuing name suppression. Serious allegations are made against you, the High Court is to hear those allegations, there is a strike out being (inaudible) which we are confident of getting rid of, so it’s submitted Sir, with your knowledge of that, the allegations against you will be improper for you to continue to make any directions and that this matter of a callover should be adjourned to another date where another Judge can read that, my submissions on a memoranda …

A little later Mr Nottingham said as follows:

Sir, you’re aware of the allegations against you. The allegations include you tampering with the transcript. …
If you consider it’s fit for you to stand here when there’s a prima facie case that you tampered with the transcript. To remove the very material that proves that you made a decision –

The Judge then said as follows:

Are you in Court saying to me that I have tampered with a transcript?

Mr Nottingham replied:

I am saying there is a prima facie case for it, yes …

Well a Judge cannot sit with a prima facia case of him tampering with evidence on a factually related matter and that he’s aware of the allegations and they are [laid] before the supervisory Court of this Court. I can have a judicial review filed within four weeks.

The Judge went on to say as follows:

Do not interrupt and I’m going to give a judgment for a ruling in a moment on a question of contempt of Court.

 – NOTTINGHAM v SOLICITOR-GENERAL [2017] NZHC 1325 [15 June 2017]

Back to the latest judgment:

[9] As noted earlier, the Crown submission is substantive and substantial. It is also compelling. If the material now sought was relevant to culpability, it should have been sought and obtained before or at trial. If relevant to penalty, it should have been sought and obtained before sentencing. Be that as it may, what matters most here is its utility (if any) to the appeals pending in this Court.

[10] As to that, Mr Nottingham has entirely failed to persuade us that any of the material now sought is necessary for the due conduct of the appeals.

[12] This application is, therefore, an ill-assessed distraction from the issues on appeal. These must focus on the admissibility of the evidence adduced, the inferences properly to be drawn from that evidence and the directions given by the trial Judge, rather than on evidence neither before nor capable of being before the Court, or the background motives of those who did or did not give evidence, to the extent that was not already put in evidence. There is a limit. It has long since been crossed in this application.

Result

[13] The application is declined

So next up is the actual appeals in two weeks on 25th June, unless Nottingham finds another way to divert or delay.

The courts sound like they have had enough of his stunts, but I wouldn’t rule out more urgent memorandums – he has often filed or tried to file those right up to and during hearings. In one of my appeal proceedings he filed a memorandum just hours before a hearing applying to adduce new evidence, despite the case having never made it to trial.

Like then, the latest failed application sounds like Nottingham is trying to relitigate his prosecution, but in this case it was him being prosecuted. And the Court is not allowing him to re-write criminal procedures.

‘White supremacist’ to stay in prison for now

A warning two days ago:  Grandfather believes grandson may kill if released

“It’s merely a matter of time before he kills somebody.”

That’s the opinion of the grandfather of 22-year-old drug and alcohol addicted Frank Finch who was due to be released from custody this Friday.

His grandfather, Rod Finch, is pleading with agencies to deliver a secure release and rehabilitation plan which will keep both Finch, who has been diagnosed with a mental illness, and the public safe.

The call for urgency was further prompted by threats Finch allegedly made in prison, as well as a chilling two-page letter Finch’s grandfather says the young man sent to him after the Christchurch mosque attacks, in which he allegedly applauded the alleged gunman.

“He’s been on marijuana since he was about 10 years old, drinking and then harder drugs like P as he got older.” He was diagnosed with schizophrenia two years ago. “When he’s dry, he’s a loving, caring and highly intelligent young man, but nowadays it’s very rare to get him sober,” his grandfather said.

In 2015, Finch was imprisoned for three years on a raft of offences, including house burglaries, stealing electronics from Christchurch High Schools, and drive-off petrol thefts.

“You are 17 years old but you have the criminal history and actions of a much older man. You behave like a child. You have a lot of growing up to do,” the judge said at the time.

Last December, Finch was fresh out of prison when he was the passenger of a stolen car that crashed following a police pursuit. Finch was the sole survivor of the crash, which killed two others.

He is currently behind bars for breaching his court release conditions, but it was possible he’d be released at sentencing on Friday, a prospect which his grandfather feared.

For now Man described as dangerous white supremacist to remain in jail

Frank Finch, 22, will be imprisoned for crimes including theft and unlawfully getting into a motor vehicle, but the police have also laid an additional charge of threatening to kill, for which he appeared in the afternoon and will enter pleas on next month.

Citing psychiatric reports, Judge Anthony Couch said Finch clearly had no remorse and was likely to reoffend if released.

“The conclusion of the psychiatrist is that you lack motivation to make meaningful change in your life or to take any steps to avoid further offending. The psychiatrist also complains that you didn’t need extensive and long term support in a highly structured environment to gain the skills to even consider pursuing a viable life outside of prison,” he said.

Finch’s lawyer Allister Davis had asked for a sentence of intensive supervision, and speaking after the sentencing, he said the jail term was a missed opportunity.

“But that opportunity may arise again in the future. At the moment, we’ve got a young man with some pretty serious psychological problems and issues that’s in jail. I don’t believe that it’s helping him at all, but he’s done the crime has got to do the time I suppose,” he said.

At his second appearance this afternoon, Frank Finch was remanded in custody, and in three weeks he is expected to enter a plea.

It seems likely others will be pleading he  remains in prison and gets treatment. He seems to be obviously suffering from mental illness, but is also obviously potentially dangerous.

Fortunately there has been an overdue boost in funding for mental health treatment in this week’s budget, including:

Initiatives – Supporting mental health within the justice sector

Alcohol and Other Drug Treatment Court: Operational Support 2019/20

$0.7 million operating
This initiative funds the Alcohol and Other Drug Treatment Court (AODT Court) so it will continue operating with dedicated police prosecutors, court co-ordinators and lawyer team leaders at the two pilot sites (Auckland and Waitakere) until it ends on 30 June 2020.

Increasing Access to Mental Health and Addiction Support

$124.4 million operating
$3.9 million capital

This initiative is part of the Budget package supporting the Hāpaitia te Oranga Tangata – Safe and Effective Justice programme. This will improve the health, wellbeing and quality of life of vulnerable people in Corrections’ care by providing funding for mental health and addiction interventions.

This may or may not be enough or the right sort of help for people like Birch, but it is an attempt to address entrenched problems.