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At the time the charges were withdrawn the case was in a hopeless state.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Both APN and I had entered not guilty please, legally we were ‘not guilty’ when the charges were withdrawn by the prosecutor, and we both believe we are not guilty in fact and could have defended the charges.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 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.



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

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.


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.


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.


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

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:

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.

Expanded protection for politicians?

Vernon Small thinks that The Hagaman-Little defamation case looks to have expanded protection for politicans

…without a lot of fanfare this week the rights of politicians to speak out without forking out on defamation claims seem to have been extended.

Of course, MPs already have that protection when speaking in the House under parliamentary privilege.

But their qualified privilege, beyond the confines of parliamentary debate, appears to have been broadened in a significant way – pending an appeal – with the release of Karen Clark’s considered judgment in relation to the defamation case between business couple Earl and Lani Hagaman and Labour leader Andrew Little.

As was widely reported, the jury found in Little’s favour in respect of Lani Hagaman’s claims.

In the case of Earl Hagaman’s claims it found by a majority that in one of the six causes of action Little had defamed him, but the jury could not agree whether he had lost the protection of qualified privilege.

The jury could also not agree whether Little had defamed Hagaman on four of the other five claims.

What is interesting about Clark’s judgment – and what is likely to spark a forensic analysis by politicians and those who deal with them – is her explanation of her ruling on qualified privilege including an acknowledgement that she may have expanded the common law privilege.

(Though she notes that is “matched” by the check on misuse in the Defamation Act, which stipulates that a defence of qualified privilege fails if publication was “predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication”.)

I would expect that “predominantly motivated by ill will” could be difficult to prove on the balance of probabilities.

It may never be tested in court but could ‘ill political will’ be considered sufficient?

Whether the Hagaman case leads to a significant extension of the protections for politicians – and an erosion of individuals’ opportunity to win defamation actions against them – remains to be seen.

These cases are always determined on the facts. As much as there is a precedent being set here, the core of Clark’s judgment applies specifically to the Leader of the Opposition and the constitutional requirements on that office-holder.

So it is quite a narrow application of the law.

Little established his duty to make the comments “to an audience who had an interest in receiving those communications” and that it was in the public interest that his freedom of expression should prevail “over protection of reputation”.

But will we in future see attempts to extend Clark’s logic beyond the Opposition Leader, perhaps to those spokespeople with delegated roles, or even at a longer stretch to MPs generally?

The Court of Appeal’s view will be well worth watching.

Yes it will, if it happens. If Earl Hagaman dies first we may never have this ruled on by the Court of Appeal.

Life Without Parole appeal

Last week the Court of Appeal ruled against the Crown in two cases involving the 3 strikes legislation.

Court of Appeal Judgment R v Harrison and R v Turner

The Court of Appeal media release aimed at assisting understanding of the judgment:


R v JUSTIN VANCE TURNER (CA114/2015) [2016]


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 Court of Appeal has today dismissed the Solicitor-General’s appeal against sentence in the case of Shane Harrison but allowed the appeal against sentence in the case of Justin Turner in part, increasing the minimum period of imprisonment of his life sentence to 17 years.

These appeals were the first to challenge the application of s 86E of the Sentencing Act 2002, part of the so-called “three strikes” legislation. Section 86E requires a person convicted of murder after committing a “serious violent offence” (a “stage-1 offence”) to be sentenced to life imprisonment without parole, unless that would be manifestly unjust. In the High Court the sentencing judges, Mallon and Woolford JJ respectively, found it would be manifestly unjust to sentence Mr Harrison and Mr Turner to a whole of life sentence. A Full Court of the Court of Appeal has agreed with this conclusion.

The crux of the appeals turned on the meaning of “manifestly unjust”. The Solicitor-General contended that manifest injustice would be established in rare and exceptional circumstances only such that the exception was a very narrow one. Section 86E created a statutory presumption that there should be a higher level of punishment for repeat violent offenders, irrespective of their actual culpability. This was the basic rationale behind the three-strikes regime. The Solicitor-General accepted that the manifestly unjust exception involved a 2 judicial discretion to ensure that the presumption in s 86E did not infringe s 9 of the New Zealand Bill of Rights Act 1990 — the right not to be subjected to disproportionately severe treatment or punishment.

The Court of Appeal considered the likelihood of grossly disproportionate sentences arising from the application of s 86E to be high. A key reason included the breadth of the qualifying catchment, namely a previous conviction for a “serious violent offence”. The offences within that definition number 40 and are extremely wide-ranging, producing an infinite range of circumstances of offending.

The consequences of the application of a whole of life sentence also contributed to the potential for gross disproportionality. Such a sentence provides no opportunity for review. For a sample of actual murder cases from 2009–2010, the length of time spent in prison, on average, was calculated to be upwards of 35 years, significantly longer than an offender sentenced for murder would usually serve.

Given the high likelihood of a sentence imposed under s 86E being grossly disproportionate, the Court concluded that the meaning of “manifestly unjust” must be interpreted broadly. Its application requires an intensely factual consideration of the circumstances of the offending and the offender, including: the sentence that would otherwise be appropriate for this offending, the consequences of a whole of life sentence, the actual culpability of the offending and the risk posed by the offender. Ultimately, the judicial approach to the scope of the manifestly unjust exception is intended to avoid wholly disproportionate sentencing outcomes.

Applying this approach to Mr Harrison’s and Mr Turner’s cases, the Court agreed it would be manifestly unjust to impose a sentence of life imprisonment without parole in each case. For Mr Harrison, the Court agreed with Mallon J that the low culpability of Mr Harrison’s stage-1 offence, together with his attempts to rehabilitate, his age and the views of the victim’s family, would have made a whole of life sentence grossly disproportionate. The Court also noted that Mr Harrison was only a secondary party to the murder.

In Mr Turner’s case, the Court concluded that although the circumstances of his offending were brutal, his age, guilty plea and mental health difficulties culminated to make a whole of life sentence grossly disproportionate. However, the Court agreed with the Solicitor-General that the appropriate minimum period of imprisonment was 17 years rather than 15 years as imposed by Woolford J.

Mr Harrison and Mr Turner also sought a declaration of inconsistency with the Bill of Rights Act, contending both s 9 and s 22 were breached by s 86E of the Sentencing Act. The Court declined such a declaration on the basis that a rights-consistent interpretation of s 86E was possible. The Court noted, however, that if the manifestly unjust safeguard did not operate to prevent gross disproportionality, this could be addressed at a later time.

As an ACT MP David Garrett was the driving force behind the 3 strikes legislation. He responds to this decision in detail in a guest post at Kiwiblog: Guest Post: Appeal Court refuses to apply LWOP


Court of Appeal versus Corbyn

It’s hard to keep up with the swings in legal action involving the UK Labour Party and their fractious leadership contest.

Guardian: Corbyn’s team incensed as new members denied Labour vote again

Jeremy Corbyn’s leadership campaign suffered a setback on Thursday after an unexpected Court of Appeal victory for the party’s ruling body that will bar thousands of the leader’s supporters from voting.

Angry recriminations from Corbyn’s team followed the court’s decision, which will mean about 130,000 new members who joined less than six months ago will not be able to vote in the forthcoming poll between Corbyn and Owen Smith for the Labour leadership.

Corbyn’s campaign team openly attacked both the court of appeal judges and the party’s HQ for fighting the appeal, castigating the decision as wrong “both legally and democratically.” Shadow chancellor, John McDonnell, said lawyers had used “a grubby little device” to win the appeal.

But Paddy Lillis, chair of the Labour NEC, insisted the party had a right to defend its processes.

The ruling comes at the end of a stormy week for the party, with relations collapsing between Corbyn and his deputy Tom Watson after a public spat over the latter’s claims in the Guardian that the party was at risk of “Trotskyist entryists”. That was dismissed by Corbyn and then repeated by Watson who produced a document of far-left activists now involved in the party. The two leadership rivals, Corbyn and Smith, also clashed at a bitter hustings in Gateshead on Thursday, with Smith saying he would refuse to serve in a future shadow cabinet under Corbyn should his rival win the election.

On Friday there had been expectations the appeal by the NEC would most likely be rejected by the court

About the only good thing going for Labour at the moment is there won’t probably be an election for a few years.

What a mess.

Slater’s response to Court of Appeal judgment

Cameron Slater has responded to Thursday’s Court of Appeal judgment on ongoing proceedings in Matthew Blomfield’s defamation case against Slater.

It’s notable that this wasn’t in a post, it was in the General Debate thread:

Just for the record people. There are two news stories and some excited tumbleweed blogs who think that I lost an appeal yesterday.

I didn’t.

I made an application to Court of Appeal to introduce new evidence that has come to light.

Unfortunately the Court of Appeal declined to allow me to introduce the new evidence. It seems it doesn’t matter to them that the High Court was misled or witnesses are being intimidated. Just another challenge and hurdle for me to overcome.

The Appeal is still live before the Court of Appeal and sometime next year it will be heard. Don’t believe everything you read in news reports or on tumbleweed blogs.

That is like if England had claimed they didn’t win this year’s world cup (and had also been beaten by Fiji and Uruguay).

The Court of Appeal ruled that the evidence was either not new, not shown to be new by Slater, or could have been obtained in time for the High Court Trial so was deemed not new.

Tumbleweeds are survivors in harsh conditions.

Greg M responded to Slater’s comment:

Saw that, unbelievable. The next time the IPCA comes out with a finding does this mean we can now all ignore it as “hearsay” ? 
The only good thing to come out of it is that now you know how ridiculously high the hurdles has been set.

Cam Slater:

Yeah astonishing…an IPCA report, and Police records are now hearsay.

On the hearsay from the IPCA report and Police records:

[26] Next, Mr Slater referred to intimidatory acts against Mr Price. He alleges at para 14 of his affidavit that he holds “contemporaneous emails” (unspecified as to date) relating that Mr Price was threatened with being “done over” by Mr Blomfield’s “gang associates”. He refers to Mr Price stating that he believes that Mr Blomfield is a psychopath, and also asserts that Mr Price related to another person that he (Mr Price) had been unlawfully detained and then assaulted by Mr Blomfield. These allegations are backed up by a police report mentioning that Mr Blomfield had coerced Mr Price into swearing an affidavit by “threats of being sued for defamation”. This evidence is all hearsay, and inadmissible.

If the Police report quoted something someone had said then I presume that’s hearsay.

[38] Mr Slater now seeks to adduce evidence in the form of police reports showing that the question of whether the information had been stolen has been investigated by the police who have reached the view that there was insufficient evidence of criminal conduct “on the part of the appellant or any source or alleged source”. The reports attached to Mr Slater’s affidavit have dates between January and May 2013. Mr Slater has made no attempt to explain why he could not have obtained this information earlier and in time to adduce it at the trial. He would have been aware from the statement of claim that Mr Blomfield complained that the material was taken from him unlawfully, and asserted that it contained a large number of “copyrighted, privileged and confidential items belonging to the plaintiff, his clients and his family”. The evidence on which he now seeks to rely could have been called in the High Court, but Mr Slater chose not to do so. It is not fresh.

[39] The material is in any event hearsay and inadmissible for that reason. The same applies in relation to a letter of the Independent Police Conduct Authority dated 13 June 2014. Mr Slater seeks to rely on that letter for its statement that the police investigation had found the missing hard drive “to have never been stolen”. He says that he endeavoured to produce the letter in the High Court “from the bar” but it was successfully opposed. Again, it is a hearsay statement which ought not to be admitted at this point.

Can anyone with legal and court knowledge explain whether the police reports and IPCA letter are correctly classified as hearsay by the Court of Appeal judges?

The full judgment:

UPDATE: Hearsay evidence

An important part of our legal system is that any witnesses (with some defined exceptions, notasbly that the witness is now dead) giving evidence should present it in court so they are able to be cross examined.

Hearsay evidence is covered by sections 16-22 of the Evidence Act 2006. Pursuant to s 4(1) of the Act, a hearsay statement is a statement made by someone other than a witness (in the proceedings) that is offered to prove the truth of its contents. Under section 17 of this Act a hearsay statement is generally not admissible in any court proceeding. Though section 18 states when a hearsay statement may be able to be given in court. This is when the statement is reliable, the statement maker is unavailable to be called as a witness or it would provide undue expense and delay if that person was required to be a witness. There are also a number of specific exceptions such as statements in business records. Other exceptions include state of mind evidence (see R v Blastland) and whether the statement is tendered to prove the fact it was uttered or made, rather than to prove the truth of its contents (see DPP v Subramaniam).

It is covered in the Evidence Act 2006:

Part 2
Admissibility rules, privilege, and confidentiality

Subpart 1Hearsay evidence

Slater and his legal advisers might benefit from reading and understanding that (I have and will).