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]

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.

Nottingham refused fishing expedition by Court of Appeal

Dermot Nottingham’s appeal against his conviction and sentence is on the Court of Appeal fixture list for next Monday. He has already been to the court trying to get cellphone records, emails and medical notes of three of his criminal harassment victims, claiming they lied at his trial, but the court refused that, calling it a fishing expedition.

NZ Herald: ‘Malicious and nasty’ blogger accuses former MP of perjury, asks court to release their emails

A “malicious and nasty” blogger, who was convicted of criminal harassment and breaching court orders, has now accused a former parliamentarian of perjury.

Dermot Gregory Nottingham was found guilty of five criminal harassment charges and two breaches of court suppression orders following a lengthy trial, in which he represented himself, during April and May last year.

He was then sentenced to 12 months’ home detention and 100 hours’ community work for what Judge Jonathan Down described as a blatant and contemptuous breach of court orders and an arrogant view of right and wrong.

Nottingham was targeting business people, civil servants and a former member of Parliament.

He had taken and published photos of them, their homes and was making false claims of drug abuse and corruption.

One of the five victims, all of whom have permanent name suppression, said they had been stalked and photographed, with their images appearing on the blog page.

The sentencing judge said they were the five worst cases of harassment, but that’s debatable. There were many victims of attacks from Nottingham and associates – including myself and others participating here at Your NZ.

Now, however, Nottingham wants the cellphone records, emails and medical notes of three of his victims.

He claims they are guilty of perjury, having testified at his trial.

This isn’t the first time he has made claims like that when court judgments haven’t gone his way (he has been a frequent visitor to courts over the past ten years, unsuccessfully most of the time).

In an application for a non-party disclosure hearing, Nottingham asked the Court of Appeal for the emails sent and received by the then-MP about himself.

Nottingham claimed this would prove they lied at his trial.

He also sought the cellphone records for the past six months from a second victim and the medical records of a third.

He has made a number of accusations in the past without having evidence, including in his failed prosecution of me.

But as in the past the Court of Appeal ruled against him.

“We are neither satisfied that those persons are likely to hold the information Mr Nottingham seeks nor, even if we thought that was likely, that all or part of it appears to be relevant,” Justices Stephen Kos, Brendan Brown and Denis Clifford ruled.

“The open-ended and speculative nature of the reasons on which Mr Nottingham based his application reflect the almost inevitability of that conclusion.”

The three judges said the application is “in reality, a fishing expedition”.

“Moreover, and most importantly, each of [the victims] gave evidence at Mr Nottingham’s trial and were cross-examined at considerable length.

“That cross-examination was an opportunity to test their evidence, both as to its credibility and its reliability.”

The Court of Appeal judges said because those being asked to divulge personal information were victims of Nottingham’s criminal harassment, it was further reason not to put them through the invasive process that a hearing would occasion.

Court of appeal judges referring to “victims of Nottingham’s criminal harassment” suggests it will be challenging for Nottingham to get the convictions overturned.

Nottingham, meanwhile, also appealed both his convictions and his sentence.

He had tried to argue at trial that his “articles” were covered by freedom of expression rights.

He has admitted writing “articles” on ‘that blog’ which will be nameless here, and I think that many who have read articles there, especially about themselves, will suggest Nottingham abused freedom of expression rights.

The prosecution against him, he claims, was a “false case” and the police had created evidence to “fit him up”.

That sounds like what he tried to do with me and others. Court costs awarded against him in those failed cases led to him being declared bankrupt last September.

Brian Dickey, Auckland’s crown solicitor, said Nottingham’s harassment was at the high end of the criminal spectrum, calling it “so malicious, so nasty”.

“He shows absolutely no insight into his offending, no remorse,” he said at the blogger’s sentencing.

The Crown had asked for a prison sentence after Nottingham’s conviction and is appealing the sentence. That will be heard at the same time as Nottingham’s appeals.

See Dermot Nottingham sentenced for criminal harassment, suppression breaches

Nottingham fails again in Court of Appeal, judicial system faltering

Another failed Dermot Nottingham attempt to get leave to appeal from the Court of Appeal, this time against myself and Allied Press Limited.

This follows over three years of two related private prosecution proceedings. Last week Nottingham was also declined leave to appeal in the Court of Appeal versus Lynn Prentice and APN Limited – see Nottingham fails another attempted appeal.

All four parties were originally charged together in July 2015, but the cases against Allied Press and I were moved to Dunedin as they had been incorrectly filed in Auckland.

Prentice and APN went to trial in June 2016 and all charges were dismissed. They were eventually awarded costs. Nottingham unsuccessfully appealed the dismissal and costs in the High Court, and last week failed to get leave to appeal from the Court of Appeal.

The  week after those dismissals at trial Allied Press and I had a hearing seeking dismissal of charges prior to trial. Nottingham had not submitted opposing this. At the hearing Nottingham sought and obtained the Court’s leave to withdraw the charges.

We subsequently applied for costs and these were eventually awarded. In March this year Nottingham lost a High Court appeal against the costs, and has now failed to get leave to appeal from the Court of Appeal. After a hearing before three judges on 9 October 2018 their judgment has just come out.

[5] The private prosecution initiated by Mr Nottingham charged Allied Press Ltd and Mr George with breaching a suppression order by publishing articles on their respective websites in breach of s 211 of the Criminal Procedure Act.

[8] Mr Nottingham’s principal argument in support of his application for leave to appeal is that convictions of Allied Press Ltd and Mr George were inevitable if he had chosen to continue with the prosecution. He submits that Davidson J’s finding that the prosecution was defendable was “inconsistent with the indisputable facts”.

At the time the charges were withdrawn the case was in a hopeless state. The 1000+ page long 3 month+ late initial disclosure was inadequate, a promised expert witness statement was never produced, and Nottingham repeatedly failed to comply with law, court rules and timetables.

Both APN and I had entered not guilty please, legally we were ‘not guilty’ when the charges were withdrawn by the prosecutor, and we both believe we are not guilty in fact and could have defended the charges. Seven judges have agreed that the charges were defendable, but as the cases had never gone to trial could not rule out the possibility that Nottingham could have eventually proved something. he never has.

[9] Mr Nottingham says that the issues of costs against a prosecutor and what published information will breach a suppression order require clarification…

[10] These questions are all fact specific and relate only to this case.

[11] We are of the view that the questions posed are not issues of general principle or of general importance in the administration of the criminal law by the courts.

[12] Nor are we satisfied that a miscarriage of justice may have occurred or may occur unless the appeal is heard. Discontinuation of proceedings will ordinarily have cost consequences. This was not a case where the prosecution would have clearly succeeded but for circumstances unrelated to the merits. We agree with the Judge that the prosecution was defendable. The issues would have included whether the publications contained any suppressed information and whether the requisite mental element was established for charges that are not of strict liability. Further, as the Judge mentioned, if the issue of “hidden computer search tools” had become relevant, then the legal and evidential issues would have been more complex. There were no clear answers to these issues on the untested evidence.

[13] We accordingly decline the application for leave to appeal.

The evidence had never been tested at trial, so despite Nottingham effectively trying to re-litigate the case at four subsequent hearings over costs we remain ‘not guilty’ (and, I believe, not guilty).

Note: there is suppression (Order prohibiting publication of evidence and submissions contained in
this judgment) related to a different prosecution (and conviction), so those details cannot be published at this stage, and the full judgment won’t be published pending the final outcome of the other case.

Prior to the last High Court appeal Nottingham indicated he intended taking the case to both the Court of Appeal and the Supreme Court, so a further legal step is possible. I think this would be futile, and would use up more of the already overstretched court resources.

Nottingham currently has three cases pending before the Supreme Court following other failed appeals – see Case information 2018

Further attempts at appeal would incur further costs. Nottingham has admitted he has been insolvent for some time, has claimed to have debts of about $2 million (about quarter of a million in various court costs awarded against him), and he was adjudicated bankrupt in September – see HONEY v NOTTINGHAM [2018] NZHC 2382 [11 September 2018].

He seems to have had no intention of paying costs, and no ability to pay costs, yet he continues to force people to incur costs through the courts. In an email in 2015 he said that if various intended litigation took ten years ‘he was up for it”.

Nottingham has incurred all the costs but has not been acting alone.

Robert Earle McKinney has been closely involved with the proceedings against us. He arranged for the initial serving of documents (that was funny, I was photographed being served the documents on a Dunedin street). He shared the same email account as Nottingham, which was associated with his company Advantage Advocacy Limited (now in liquidation – see First Liquidators Report). Nottingham was said to be the sole employee of this company, and the company was registered at his address.

Cameron Slater was named as an informant to the prosecution, and was named as an expert witness (but never provided a witness statement). He appeared as a witness in the Prentice/APN trial. See NOTTINGHAM v APN NEWS & MEDIA LTD [2018] NZHC 596 [29 March 2018]:

  • calling a witness who had not been brief, Mr Slater. The detail and nature of this evidence had not been provided to the defence prior to the presentation of the witness to the Court;

Slater has been named by Nottingham as involved in ongoing attempts at litigation against me. He was also associated with the failed Court Order attempt by Marc Spring.

Marc Spring was also involved in serving court documents for Nottingham, and openly associated himself with @LaudaFinem in a campaign of harassment against me, at one stage suggesting I would be ‘fucked over’ as happens at Whale Oil. He has been involved in a number of ways in trying to trash and take down Your NZ. I believe he was also contributor to content (posts and comments under various pseudonyms) at the now taken down laudafinem.com blog. – see from sentencing notes:

“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.”

There is a lot more on Spring’s involvement in various things but that is for another story. Others have also been involved in various ways.

Due to all of this I have learned a lot about how our judicial system works. I don’t think it has coped well with people who use it to attack and use it to try to cause hardship to others, and who repeatedly abuse processes and fail to comply with laws, rules and conventions that lawyers are bound to adhere to.  They have wasted a large amount of court time and resources.

I think that private prosecutions are an important part of our judicial system, as is the right to represent oneself and act as a lay litigant.

But I think that far less leniency for breaches of laws, rules and timetables would make things more fair for the targets of vexatious litigation.

There are apparently strict requirements for filing court submissions according to defined timetables. In theory this allows for orderly and fair processes.  But Nottingham has been allowed far too much leniency, and due to his frequency of litigation he should not get away with the excuse of lay litigant ignorance. Courts have pointed that out.

Nottingham repeatedly ignored requirements. A few examples (from many) from my proceedings.

“At the commencement of criminal proceedings, or as soon as practicable after that time, and in any event not later than the applicable date, the prosecutor must disclose the following information to the defendant.”

“In this section, applicable date means—

(a) the date that is 15 working days after the commencement of criminal proceedings

That means he should have provided disclosure by mid-August 2015. After he failed disclosure was requested by counsel and instructed by the Court. He still failed to disclose, and at one stage said he was deliberately delaying disclosure. He finally served a 9cm think pile of garbage (that has to be all read in case there is something important, not cheap when you are paying a lawyer to do it) in December 2015, three and a half months late.

When we applied for and submitted on costs Nottingham filed his submission late with the court but failed to serve it on us (the Applicants). When just prior to a scheduled hearing we found out he had submitted but not served the Court directed that he serve, but he failed to do that. I had to spend half a day in Court reading through hundreds of pages just in case there was something in it that was important.

Nottingham failed to appear at the costs hearing, but instead emailed a further submission during the hearing. remarkable the Court gave us copies and the Judge ordered a short adjournment so we could read it (a ridiculous situation to put us in). Then when the hearing resumed another submission arrived in court. At least the judge refused to accept that one.

For the Court of Appeal proceedings Nottingham:

  • filed his application seeking leave to appeal out of time
  • failed to file a submission as directed by a judge to give reasons for applying out of time
  • failed to file his submission as Applicant by the due date
  • after being told he had not filed by the court he set his own timetable
  • he finally filed his submission after both respondents had filed our submissions on time
  • two hours prior to the appeal hearing he filed another submission.

How did the Court deal with all of these transgressions? One of the three appeal judges said he two hour prior to hearing submission was ‘unhelpful’.

I made the point in oral submissions that all of these failures impose severe difficulties on the respondents, and also costs for those who have lawyers having to try and deal with the chaos. But that was not noted in the judgment.

I have been severely inconvenienced and disadvantaged through 3+ years of proceedings due to the actions and failures to comply of Nottingham. Lawyers would not get away with any of this (they wouldn’t attempt to get away with it).

While the various judges and courts have had difficulty dealing with a recidivist abuser of processes I believe hey have in effect aided and abetted these abuses by being so lenient with Nottingham time and time again.

If the courts want to reduce the pressure on time and resources they could help themselves by ensuring that litigants at least mostly comply with requirements.

This has been a huge learning curve for me, being my first experience in litigation and the courts. I found out what I was required to do, and did everything as required, on time. I have been severely disadvantaged by the numerous breaches by Nottingham, unchecked by the courts.

What have I got for this? Some costs awarded, with the likelihood that none of that will be paid. And I have got off cheaply compared to others.

The law is largely not an ass, and court staff and judges generally do good jobs under pressure, but the judicial system could be improved with some simple insistences that basic processes are complied with.

Nottingham fails another attempted appeal

The courts are catching up with Dermot Nottingham’s vexatious court proceedings. he has just lost another appeal in the Court of Appeal, this time to APN Limited and Lynn Prentice.

NOTTINGHAM v PRENTICE [2018] NZCA 461 [29 October 2018]

[1] Mr Nottingham seeks leave to appeal a decision of Wylie J in the High Court.

[2] In the decision at issue, Wylie J declined to grant Mr Nottingham an extension of time under s 298(4) of the Criminal Procedure Act 2011 to apply for leave to appeal two rulings and a costs judgment issued by Judge Collins in the District Court.

[3] For the reasons articulated in the decision of this Court in two other proceedings also involving Mr Nottingham, we are satisfied we do not have jurisdiction to entertain Mr Nottingham’s application. That is so whether it is characterised as an application for leave to appeal Wylie J’s decision declining to grant an extension of time, or an application for leave to appeal Wylie J’s decision declining to grant leave to appeal.

[4] The application for leave to appeal is accordingly declined.

This is a result of private prosecutions started by Nottingham in July 2015, which went to trial in June 2016 where all charges were dismissed, after which Prentice sought and was awarded costs. Nottingham appealed the decisions, losing and incurring further costs to Prentice and costs to APN.

This appeal was an attempt to challenge the costs and to appeal the dismissals.

This is related to the private prosecution of myself and Allied Press Limited. We were similarly charged (private prosecutions) but the charges were withdrawn at a hearing seeking the charges be dismissed, just after the Prentice/APN charges were dismissed. We were subsequently awarded costs, Nottingham lost a High Court Appeal and then lodged an appeal to the Court of Appeal. We are waiting for a judgment on ‘seeking leave to appeal’.

The other proceedings referred to above involving Nottingham are in a single judgment HONEY v NOTTINGHAM [2018] NZHC 2382 [11 September 2018]:

[33] The application in CA670/2017 for leave to appeal against the decision in the High Court refusing leave is declined on the basis that the Court has no jurisdiction to hear such an application.

[34] The application in CA733/2017 for leave to appeal against the decision in the High Court refusing to grant an extension of time to appeal against a costs order is declined on the basis that the Court has no jurisdiction to hear such an application.

Despite it being clear that the Court has no jurisdiction to hear Nottingham’s applications, he is trying to appeal to the Supreme Court.

This is despite him being adjudicated bankrupt due to an unwillingness and/or inability to pay court costs already incurred- see HONEY v NOTTINGHAM [2018] NZHC 2382 [11 September 2018].

As he is insolvent (by his own admission) Nottingham seems unlikely to be able to pay any existing costs let alone more costs incurred through his ongoing attempts to appeal and re-litigate.

This is a hopeless waste of Court time and resources, and I believe there is malice involved – trying to incur as many costs as possible with no ability or intention to pay costs awarded against him.

 

New public interest defence to defamation – Court of Appeal

Lange v Atkinson[1998] has often been quoted and used as a defence in defamation cases over the last twenty years. The Court of Appeal has just released a decision that will replace this legal precedent.

The judgment recognises the existence of a new public interest defence to defamation claims arising from mass publications. The elements of the new defence are that the subject matter of the publication must be:

  • a matter of public interest
  • and that the communication must be responsible.

Unlike the political focus of Lange v Atkinson the new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern.

This should also apply to blogging and other types of online publications.

An element not agreed on by the Court is ‘reportage’ – verification of content before publication.


COURT OF APPEAL OF NEW ZEALAND

DURIE AND ANOR v GARDINER AND ANOR [2018] NZCA 278

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at http://www.courtsofnz.govt.nz.

1. The Court of Appeal today released a judgment recognising the existence of a new public interest defence to defamation claims arising from mass publications. The elements of the new defence are that the subject matter of the publication must be a matter of public interest and that the communication must be responsible.

2. In recognising the new defence, the Court held the form of qualified privilege recognised in Lange v Atkinson [1998] 3 NZLR 424 (CA) and [2000] 3 NZLR 385 (CA) has been replaced. The new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern.

3. The Court was unable to agree on a related issue known as “reportage”: whether mass publication of an allegation without verification of its content is protected where the public interest lies in the fact of the allegation having been made, rather than the truth of the allegation.

Background

4. Sir Edward Durie and Ms Donna Hall issued defamation proceedings in response to a story broadcast by Māori TV and published on its website. Sir Edward was at relevant times co-chair of the New Zealand Māori Council. Ms Hall is a high-profile lawyer specialising in Māori legal issues and had been representing the Council before the Waitangi Tribunal.

5. Sir Edward and Ms Hall say the broadcast and website story conveyed various defamatory meanings. They also complain that the website story did not initially include Ms Hall’s response to the allegations.

6. The High Court had declined to strike out the respondents’ public interest defence that relied on legal developments in the United Kingdom and Canada. The Judge held the defence pleaded was available and would not inevitably fail on the facts. On appeal, the appellants conceded some form of public interest defence might now exist in New Zealand. The argument was on the boundaries of such a defence, and whether the respondents could tenably rely on it.

The Judgment

7. Building on English and Canadian case law, the Court of Appeal has concluded it is time to strike a new balance between the right to protection of reputation and the right to freedom of expression by recognising the existence of a new defence wider than that in the Lange v Atkinson decisions. The new defence is not confined to parliamentarians or political issues but extends to all matters of public concern.

8. The new defence requires the subject matter of the publication to be of public interest, and the communication to be responsible. Both are to be determined by the judge, not a jury. It is available to all who publish material in any medium, and is not part of the rubric of qualified privilege. Therefore, the Lange v Atkinson form of qualified privilege has been replaced.

9. In this case, it was common ground the publications were on a matter of public interest. The key issue was whether communication was responsible. The Court held the public interest defence was untenable in relation to the website story for the period of time before Māori TV published Ms Hall’s responses. Other challenges to the responsibility of the communication were held to be properly left for trial.

10. Concerning reportage, the majority held it is not a separate defence but part of the same spectrum. Reportage is a special and relatively rare situation and need not be pleaded separately. Dissenting, Brown J expressed concerns about reportage including its relationship with statutory defences. If it is to be recognised, Brown J considered it should be viewed as a discrete defence. The Court held unanimously that reportage is not available in this case as one of the most prominent assertions was portrayed as fact, not as an allegation.

Full judgment: DurievGardinerNZCA278.pdf

Court of Appeal rules Kim Dotcom eligible for extradition

The Court of appeal has upheld findings by the District Court and the High Court that Kim Dotcom is eligible for extradition to the United States, but Dotcom quickly signalled what was expected, he would seek leave too appeal from the Supreme Court.

RNZ: Kim Dotcom eligible to be extradited to US, court rules

The Court of Appeal released its finding today, upholding the decision of the High Court and District Court.

Mr Dotcom and his three co-accused – Bram Van der Kolk, Matthias Ortmann and Finn Batato – are eligible for surrender on charges of money-laundering and copyright breaches related to the defunct file-sharing website Megaupload.

The court also ruled that evidence Mr Dotcom and his co-accused said they were prevented from calling would not have affected the decision to extradite.

“The evidence the appellants say the United States wrongfully prevented them from calling would not affect the question of whether there is sufficient evidence to make out a prima facie case.”

From the judgment:

[332] We accordingly confirm the eligibility determination made by the District Court. We direct that the District Court should now proceed without further delay to complete its duties under s 26 of the Extradition Act in accordance with the determination.

[333] We dismiss the appeal against Gilbert J’s decision to decline judicial review.

RNZ:

The decision on extradition now rests ith the Minister of Justice Andrew Little, according to the Extradition Act.

That may not be the case, given Dotcom’s response:

But three different courts have supported extradition.

Dotcom has the money to take this to the highest judicial level, and his money has bought him years of time, but the time at least could be running out.

Stuff:  Kim Dotcom loses appeal against extradition, will take case to Supreme Court

After losing their case against extradition in the North Shore District Court, and then on appeal in the High Court, the four men had appealed to the Court of Appeal, which on Thursday rejected their arguments.

Dotcom said he was “extremely disappointed” by the decision, and would appeal it to the Supreme Court.

“My legal team are confident that the Supreme Court will hear the appeal given there are such significant legal issues at stake,” Dotcom said.

Dotcom, in his response to the judgment, said: “The court’s interpretation of the relevant copyright provisions cannot be right.

“The precedent set is concerning and has ramifications in New Zealand outside my case. The decision exposes Internet Service Providers to criminal liability for the misuse of their services by users, as is claimed against me.

This is something that, as any rudimentary review of the legislative history makes clear, and the High Court accepted, was never intended. The Court was taken through that history but has not referred to it.

“As people will know, I am prepared to fight to get justice, whether it is for me or others,” Dotcom said.

More to the point, he is trying to avoid facing the US justice system.

However, acting Prime Minister Winston Peters said the possibility of appealing wasn’t clear cut.

“I am told he seeks to appeal, whether he can or not is a matter of debate.

I think that seeking leave to appeal from the Supreme Court will happen before it goes to the Minister of Justice for a final decision.

 

 

Williams versus Craig – retrial of damages only

The Court of Appeal has ruled in the Jordan Williams versus Colin Craig defamation, saying there should be no retrial of the defamation, but the costs should go before the Court again.

 

After noting Wiliams’ Facebook exchange with Whaleoil was “sexually crude and disparaging of women” the Court of Appeal said of the damages award: “The law must be concerned with the reputation he deserved and compensate accordingly.”

The Appeal Court on Colin Craig “We agree with Mr Mills QC that the size of the award suggests the jury’s particularly adverse judgment on Mr Craig’s character, credibility and conduct of his defence. Mr Mills pitched it at the level of the jury’s hatred for Mr Craig.”

But a different take from Stuff:  Taxpayers’ Union boss wins right to argue claim for $1.27m in damages

Taxpayers’ Union co-founder Jordan Williams may be able to claw back the $1.27 million in damages originally awarded to him in a defamation case.

The High Court judge presiding over the case later set aside the damages – the largest defamation award in New Zealand, and the maximum Williams had sought.

But on Monday, the Court of Appeal released a decision allowing part of Williams’ appeal, which would see a retrial of his claim for damages.

Other aspects of Williams’ appeal and Craig’s cross-appeal were dismissed. However, the retrial relating to the damages alone, would give Williams the chance to claw back at least some of the initial $1.27m he was initially promised.

That’s different to the headline and initial paragraph. Stuff has a copy of the decision.

[78] It will be for the retrial Judge to decide procedure for a damages claim.The process should be analogous to trial of a claim on admitted facts, or admitted pleadings, and be relatively straightforward. The Judge could properly direct the jury to this effect:

(a) Mr Craig defamed Mr Williams in two separate publications, the Remarks and the Leaflet, at least a week apart, by stating that Mr Williams had acted dishonestly, untruthfully and deceitfully for making the allegation that Mr Craig had sexually harassed Ms MacGregor, which was necessarily rejected by the first jury;

(b) Mr Williams is entitled to a compensatory award, which should be anywhere up to a maximum of $250,000 for damage to his reputation,including aggravating factors, taking into account that:

– any damage was caused primarily by the Remarks and compounded marginally by republication in the Leaflet;

– some of the allegations made by Mr Craig about Mr Williams’ conduct relating to the defamatory statements had elements of truth in that some aspects of his conduct had been dishonest, deceitful and untrustworthy, but not in making the allegation of sexual harassment;

– Mr Craig’s statements were made in a political context and in a counter-attack to criticisms made by a man whose own attitude to women was questionable;

– elements of Mr Craig’s  conduct of his defence may have compounded the original damage; and

(c)  an award of punitive damages was also available but should not be more than $10,000

That sets maximums at less than a quarter of the original award.

79]

The Judge’s approach will ultimately be influenced by the parties’ decisions.

[80]
There is of course a more pragmatic and sensible solution. The parties can simply agree that Katz J should determine damages.  The Judge alluded to this option in her retrial decision.  She invited counsel for the parties to submit memoranda.Both sides have since shadow boxed on this proposal, which remains in limbo. It isthe most obvious path to resolution if the parties are genuinely seeking finality. Katz J is fully familiar with all the evidence and would only require focused submissions from counsel to complete the exercise.

Can they be pragmatic?

[118]  The appeal is allowed in part. The order made in the High Court for a retrial of the appellant’s claim for liability and damages is set aside.

[119]  Judgment is entered for the appellant in accordance with the jury’s verdict onliability. An order is made directing a retrial of the appellant’s  claim for damages.

[120]  In all other respects the appeal and cross-appeal are dismissed.

[121]  The respondent is ordered to pay the appellant 50 per cent of costs as calculatedfor a standard appeal on a band A basis with usual disbursements. This reductionreflects the fact that the appeal was only partially successful. There is no order for costs on the cross-appeal. All costs issues arising in the High Court are to be determined in that Court in accordance with this judgment.

The decision online: http://www.courtsofnz.govt.nz/cases/williams-v-craig-1/@@images/fileDecision?r=514.731640769

Statement from Jordan Williams re Court of Appeal decision

Naturally, I am delighted with the success of my appeal at the Court of Appeal overturning Justice Katz’s earlier decision to set aside the jury verdict in my defamation claim against Colin Craig. Justice Katz had ordered a full re-trial on the basis that the $1.27 million damages award was so high.

I am very relieved that there will not be a full re-trial, and that the issue is now simply damages. It means Mr Craig has failed in his efforts to re-litigate, yet again, this whole matter.

The judgment is totally clear that I was defamed by Mr Craig, and that the jury’s findings, now confirmed, have vindicated me.

No one can take away from the fact the jury were unanimous in my favour. The jury believed me, believed Rachel MacGregor, and not Mr Craig. Today’s decision has confirmed all of that.

As I said immediately after the jury verdict, I never entered into these proceedings for the money, nor did I want these proceedings at all. It was only Mr Craig’s own threats of legal action against me which saw us in Court. I sought to prove that Mr Craig’s allegations were wrong and to put a stop to Mr Craig’s egregious assault on my reputation.

But overplaying his hand on money has resulted in this legal mess.

[58] Mr Williams must take primary responsibility for the jury’s delivery of anunsustainable award. His claim was pitched at a plainly extravagant level. There was no request for a direction about the appropriate parameters of an award. In this case an appropriate direction would have been up to $250,000 for compensatory damages including aggravation, and for punitive damages no more than $10,000.

Williams v Craig appeal – reserved decision

Not surprisingly the Court of Appeal has reserved it’s decision after a two day appeal hearing in the defamation case between Jordan Williams and Colin Craig.

Stuff:  Jordan Williams might be victim of his own success in defamation case

The Court of Appeal has reserved its decision on his attempt to recapture the $1.27 million award for defamation the jury made against Conservative Party founder and former leader Colin Craig.

It was such a big win  – the largest defamation award in New Zealand, and the maximum Williams had sought – that a High Court judge set it aside, and the Court of Appeal looks unlikely to reinstate it.

After the jury’s award was set aside and a new trial ordered, Williams appealed to have the jury’s verdicts upheld.

The Court of Appeal indicated that the damages probably could not stand.

If damages alone had to be assessed again, it was a question of whether the original trial judge could fix them; whether a jury might do so, based on a more limited body of evidence; or whether the whole case had to be run again.

Williams’ other lawyer, Peter McKnight, said Williams would agree to having the original trial judge fix damages, even though she appeared to have an adverse view about Williams in some respects.

That sounds like an acceptance that a lower award is inevitable, at best, and Williams obviously wants to retain the verdict.

Craig’s lawyer Stephen Mills, QC, said the Court of Appeal had to be satisfied the jury had not reached its decisions through “gross prejudice”.

Craig wants a new trial to have another chance at defending himself.

The original judgment took a long time. The judgment in Slater v Craig is taking a long time – the case was hear in May.

It seems unlikely a decision will be made here before the end of the year.