Nottingham succeeds in Supreme Court sentence reduction

Dermot Nottingham has had a rare success in court. He has been successful in an appeal to the Supreme Court over the length of his second home detention sentence, which means he doesn’t have to serve any more of the sentence revised by the Court of Appeal.

This result doesn’t surprise me, as teh maximum home detention term is 12 months and Nottingham has served that in total, although it effectively means the sentence increased by the Court of Appeal has been wiped even though the original High Court sentence was found to be inadequate.

Nottingham was found by both the High Court and Court of Appeal to be largely responsible for publications on the notorious Lauda Finem website, and for campaigns of harassment against five people (I think considered by the police to be just the worst examples but I think that is debatable).

Nottingham just avoided having to serve a prison sentence both times, and although the Crown argued that the reduction of his home detention should have meant the alternative was prison, the Supreme Court disagreed.

Decision

Mr Nottingham was convicted of publishing information in breach of suppression orders and criminal harassment. On 26 July 2018, he was sentenced in the District Court to a term of 12 months’ home detention. Mr Nottingham appealed against conviction and sentence to the Court of Appeal and the Solicitor-General appealed against sentence. By the time the Court of Appeal heard the appeal, Mr Nottingham had served three and a half months of his sentence of home detention.

The Court of Appeal dismissed Mr Nottingham’s appeal against conviction and sentence. The Court allowed the Solicitor-General’s appeal, quashing the original sentence and imposing a new sentence of 12 months’ home detention.

Mr Nottingham was granted leave to appeal to the Supreme Court against
sentence. The only issue on appeal was whether the Court of Appeal erred in imposing a term of home detention which would mean that, in total, Mr Nottingham would serve 15 and a half months of home detention. The issue arose because s 80A(3) of the Sentencing Act 2002 provides that the maximum term of a sentence of home detention is 12 months.

Mr Nottingham submitted that he could not lawfully be required to serve more than 12 months’ home detention as this was the statutory maximum in s 80A(3). The Solicitor-General submitted that the sentence imposed by the Court of Appeal was permissible because the Court had imposed a new sentence. In these circumstances, the Solicitor-General argued that the old sentence ceased to exist and that the new Court of Appeal sentence started on the day it was imposed.

The Supreme Court has unanimously allowed Mr Nottingham’s appeal. The Court held that s 80A(3) was clear that the maximum term of home detention that can be imposed in relation to an offence is 12 months. Therefore, the Court of Appeal did not have jurisdiction to impose a sentence of 12 months’ home detention in circumstances where Mr Nottingham had already served some time on home detention. The practical effect of the Court of Appeal’s decision was that Mr Nottingham would have to serve more than 12 months’ home detention, contrary to the maximum in s 80A(3).

In order to get to a position where Mr Nottingham’s sentence did not exceed the statutory maximum, the Supreme Court exercised its powers to vary sentences under the Criminal Procedure Act 2011. It did so by varying the sentence imposed by the Court of Appeal to a sentence of eight and a half months’ home detention with a backdated start date of 30 July 2019.

Supreme Court judgment: Dermot Gregory Nottingham v R

Court of Appeal judgment: NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]

Both the High Court and Court of Appeal sentences seemed a bit contrived, both arriving at a 24 month prison sentence which is the maximum that can be converted to 12 months home detention.

The Court of Appeal stated:

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.

With multiple charges and different offences sentencing can be complicated.

Based on seven convictions the High Court judge arrived at a total sentence of 2 years and 4 months prison but gave a 4 month deduction:

…to reflect what he described as Mr Nottingham’s “multi-faceted and complex” health problems s, 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 the judge to consider replacing that with a 1 year home detention sentence, which he did.

He said he regarded home detention as an appropriate and sufficient response, particularly because of the ability to impose restrictive conditions limiting Mr Nottingham’s activities and assisting his rehabilitation.

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.

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”.

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

The Court of Appeal agreed that Nottingham’s various health issues needed to be taken into account and justified the 4 month reduction in sentence, despite the lack of remorse – he continued to blame others for his attacks on them.

But they arrived at a longer sentence of 31 months imprisonment, which in itself is too much to qualify him for home detention.

But they also had to take into account the 3 and a half months home detention Nottingham had also served, which equates to 7 months prison. So lo and behold, deducting that from the sentence it came to 24 months prison to be served, which again brought home detention into play. So it was converted to 12 months home detention again, but as the Supreme Court found, he shouldn’t serve the 3 and a half months plus the 12 months.

So in total Nottingham served 12 months home detention for a 31 month prison sentence. Such is our judicial system.

I don’t have a problem with him not serving prison time (although other victims of his harassment may have different ideas on that).

But time will tell whether the sentence served will deter Nottingham from further harassment.

We encourage the Department of Corrections Community Probation Service to consider a requirement that Mr Nottingham attend such counselling or courses as would assist him in management of his PTSD and in his incipient understanding (as recorded by the Judge) that his abrasive and combative approach to others may, in part, be consequential on this diagnosis.

His abrasive and combative approach is still apparent. While serving home detention and being banned from internet use Nottingham managed to start legal proceedings against Jacinda Ardern and Ashley Bloomfield:

In doing so, Mr Nottingham has engaged in political comments of a personalised nature, particularly against the Prime Minister.

See  NOTTINGHAM v ARDERN [2020] NZCA 144 [4 May 2020].

But this isn’t the end of this case. Nottingham is still subject to six months of post detention conditions which according to his original sentencing notes and reiterated by the Supreme Court – “The standard and special
post-detention conditions imposed by the Court of Appeal remain in place for the remainder of the 12-month and six-month post-detention periods respectively” – which mirror his home detention conditions, which include:

(a) That you attend an assessment for counselling, treatment or programme as directed by a probation officer. That you attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.

(b) You are not to associate with or contact any victim or witness of your offending without prior written approval of a probation officer, except in relation to … in relation to current proceedings. Again, the rider that it must be approved by a probation officer will cover the means by which that correspondence is to be carried out, just for the avoidance of confusion.

(c) You are not to possess or use any electronic device capable of accessing the Internet for capturing, storing, accessing or distributing images (including without limitation any personal computers, notebooks,
tablets or cellphones) without prior written approval from a probation
officer.

So those conditions are still in place for six months (I’m not sure when from).

Facebook suspends ‘disinformation network’ linked to Brazilian president

Facebook has suspended accounts they say have been using fake personas and other types of “coordinated inauthentic behaviour” to spread misinformation by employees of Brazilian President Jair Bolsonaro and two of his sons (who are also politicians).

Reuters: Facebook suspends disinformation network tied to staff of Brazil’s Bolsonaro

Facebook on Wednesday suspended a network of social media accounts it said were used to spread divisive political messages online by employees of Brazilian President Jair Bolsonaro and two of his sons.

The company said that despite efforts to disguise who was behind the activity, it had found links to the staff of two Brazilian lawmakers, as well as the president and his sons, Congressman Eduardo Bolsonaro and Senator Flavio Bolsonaro.

Nathaniel Gleicher, Facebook’s head of cybersecurity policy, said the accounts were removed for using fake personas and other types of “coordinated inauthentic behaviour” which violated the company’s rules.

He said there was no evidence the politicians themselves had operated the accounts.

“What we can prove is that employees of those offices are engaged on our platforms in this type of behaviour,” he told Reuters ahead of the announcement on the company’s blog.

The allegations by Facebook add to a burgeoning political crisis in Brazil, where Bolsonaro’s sons and supporters have been accused of running a coordinated online campaign to smear the president’s opponents.

The accusations have spurred a congressional inquiry and a separate Supreme Court investigation into so-called “fake news attacks” on the country’s judiciary, which led to police raids in May on the homes and offices of Bolsonaro allies.

Bolsonaro, who is also under mounting criticism over his handling of the coronavirus outbreak, has said the court’s investigation is unconstitutional and risks establishing censorship in Brazil by policing what people can say online.

Sounds similar to Donald Trump.

Facebook said it has also suspended three other networks on Wednesday, including one it attributed to Roger Stone, a longtime friend and adviser of U.S. President Donald Trump.

Facebook has come under increasing pressure in recent weeks to better police how political groups use its platform. Hundreds of advertisers have joined a boycott aimed at forcing the company to block hate speech on its site, and multiple employees walked out last month over CEO Mark Zuckerberg’s decision not to challenge inflammatory posts Trump.

Gleicher said his team had identified and suspended more than 80 accounts on Facebook and its photo-sharing site, Instagram, as part of the Brazilian network. The accounts had amassed 1.8 million followers, he said, and some dated back to 2018.

Researchers at the Atlantic Council’s Digital Forensic Research Lab, who spent a week analysing the activity identified by Facebook, said they had found five current and former political staffers who registered and operated the accounts.

Some of those accounts posed as fake Brazilians and news outlets to spread “hyper-partisan views” supporting Bolsonaro and attacking his critics, said researcher Luiza Bandeira. Their targets included opposition lawmakers, former ministers and members of Brazil’s Supreme Court.

More recently, the accounts also amplified Bolsonaro’s claims that the risks of the coronavirus pandemic are exaggerated. The disease has killed more than 66,000 people in Brazil and Bolsonaro himself tested positive this week.

“We have known for a long time that when people disagree with Bolsonaro they are targeted by this machine that uses online disinformation to mock and discredit them,” said Bandeira.

Also sounds similar to how Trump operates.

And from Al Jazeera: Bolsonaro taking dubious drug after testing positive for COVID-19

Brazil’s President Jair Bolsonaro has continued to tout an unproven anti-malarial drug as a treatment for the new coronavirus after testing positive for COVID-19.

After months of downplaying the virus’s severity, the 65-year-old far-right leader announced on Tuesday he had been diagnosed with the highly infectious respiratory disease but already felt better thanks to hydroxychloroquine.

Hours later, the former army captain shared a video of himself gulping down what he said was his third dose.

“I trust hydroxychloroquine,” Bolsonaro said, smiling. “And you?”

On Wednesday, he was again extolling the drug’s benefits and claimed his political opponents were rooting against it.

“To those who cheer against hydroxychloroquine, but have no alternatives, I regret to inform you that I am very well with its use and, with the grace of God, I will live for a long time,” Bolsonaro wrote on his Facebook page.

Natalia Pasternak, a research fellow at the Institute of Biomedical Sciences at the University of Sao Paulo, said Bolsonaro was setting a “bad example”.

That’s nothing new.

Meanwhile, Trump is complaining about court proceedings against him in the US.

He followed that with a string of tweet rants.

CNN: Trump loses battle on financial records, but Supreme Court ruling buys him time

The Supreme Court on Thursday blocked House Democrats from accessing President Donald Trump’s financial records, but ruled that the President is not immune from a subpoena for his financial documents from a New York prosecutor.

The cases were sent back to lower courts for further review, all but ensuring that Trump’s financial documents, which he has long sought to protect, will not be handed over before the November presidential election.

Chief Justice John Roberts penned the 7-2 opinion in the New York prosecutor case, and was joined by Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh. Justices Clarence Thomas and Samuel Alito filed dissenting opinions.

“(W)e cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause. Our dissenting colleagues agree,” the chief wrote, noting that the court is unanimous that there is no absolute immunity.

He added: “We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.”

So no absolute immunity for the president, but Trump seems a bit unhappy about it:

We have a totally corrupt previous Administration, including a President and Vice President who spied on my campaign, AND GOT CAUGHT…and nothing happens to them. This crime was taking place even before my election, everyone knows it, and yet all are frozen stiff with fear…

No Republican Senate Judiciary response, NO “JUSTICE”, NO FBI, NO NOTHING. Major horror show REPORTS on Comey & McCabe, guilty as hell, nothing happens. Catch Obama & Biden cold, nothing. A 3 year, $45,000,000 Mueller HOAX, failed – investigated everything…

Won all against the Federal Government and the Democrats send everything to politically corrupt New York, which is falling apart with everyone leaving, to give it a second, third and fourth try. Now the Supreme Court gives a delay ruling that they would never have given for another President.

This is about PROSECUTORIAL MISCONDUCT. We catch the other side SPYING on my campaign, the biggest political crime and scandal in U.S. history, and NOTHING HAPPENS. But despite this, I have done more than any President in history in first 3 1/2 years!

This is a now familiar ‘poor me but I’m still great’ spiel.

 

Trump versus judges, courts and attorneys

If it hadn’t been clear in the past it is becoming more obvious now – Donald Trump thinks that judges and courts should be acting in his interests regardless of the laws. And it seems that his Attorney General William Barr is on trump’s side rather than the side of the law.

Two Supreme Court jugdments have gone against Trump in the last week, and his reaction is to criticise the judges and promote new ‘conservative’ judges – he really means judges who will ignore the law and do what he wants.

And Barr is also stepping in, trying to dump a New York US Attorney who has investigated associates of Trump.

Politico:  After week of Supreme Court defeats, Trump says he’ll release new shortlist of potential justices

President Donald Trump on Thursday pledged to unveil a new list of potential Supreme Court nominees ahead of November’s general election, reprising a campaign tactic that helped him shore up conservative support during his 2016 White House run.

The announcement came hours after the high court dealt the president his second major defeat this week, rejecting his administration’s attempt to end the Deferred Action for Childhood Arrivals program’s protections for roughly 650,000 immigrants — most of whom entered the U.S. illegally as children more than a decade ago.

Since assuming office, Trump has routinely touted his presidency’s rapid rate of judicial confirmations — including the hard-won installations of Gorsuch and Justice Brett Kavanaugh on the high court — to energize his base in public remarks and at political rallies.

But the fruits of those efforts to remake the federal judiciary were not evident earlier this week, after Gorsuch and Chief Justice John Roberts sided Monday with the Supreme Court’s Democratic appointees in a landmark anti-discrimination case.

What he means is vote for him to get judges who will favour Trump over the laws of the US.

Do you get the impression that Trump doesn’t like it when the Supreme Court doesn’t do whatever he wants?

Yeah, right. Trump has always acted in what he thinks are his own best interests.

And he seems to have an ally in Attorney General Barr. Fox News: Trump nominates SEC Chairman Jay Clayton to replace Geoffrey Berman as US attorney in New York

President Trump nominated the Chairman of the Securities and Exchange Commission, Jay Clayton, to replace Geoffrey Berman as the United States Attorney for the Southern District of New York, late Friday night in what appears to be political shakeup.

It is sometimes hard to separate politics and justice in the US, especially with Trump in charge.

“For the past three years, Jay has been an extraordinarily successful SEC Chairman, overseeing efforts to modernize regulation of the capital markets, protect Main Street investors, enhance American competitiveness, and address challenges ranging from cybersecurity issues to the COVID-19 pandemic,” Attorney General William Barr said in a statement.

Shortly after the announcement by the Department of Justice, ABC News reported via Twitter that Berman was fired after declining other positions within the department.

Berman responded:

He has no choice but to ‘step down’ if dumped. But this could be a contentious dumping.

Jerry Nadler heads the House Judiciary Committtee.

Lindsey Graham, Republican Chair of the Senate Committee on the Judiciary, is also not jumping in on trump’s behalf.

Fox News: Graham says he won’t advance Trump nominee for SDNY prosecutor without Schumer, Gillibrand consent

Sen. Lindsey Graham said Saturday he will not take up President Trump’s nomination for a new U.S. attorney for Manhattan unless New York’s Democratic senators sign off.

Graham, a Republican from South Carolina who chairs the Senate Judiciary Committee, said he will honor the “blue slip” tradition and require the consent of home state senators to proceed — in this case, Chuck Schumer and Kirsten Gillibrand.

Graham’s statement signals an uphill climb for Trump to get a new Senate-confirmed federal prosecutor in one of the nation’s most high-profile districts.

Graham’s committee is the first stop for Senate confirmation of the nominee.

Graham said in a statement:

“According to Attorney General Barr, the Trump Administration intends to nominate Mr. Jay Clayton to be U.S. Attorney for the Southern District of New York, I have not been contacted by the Administration in this regard. However, I know Mr. Clayton and believe him to be a fine man and accomplished lawyer.”

“As to processing U.S. Attorney nominations, it has always been the policy of the Judiciary Committee to receive blue slips from the home state senators before proceeding to the nomination. As chairman, I have honored that policy and will continue to do so.”

A statement from Gillibrand:

“I will not be complicit in helping President Trump and Attorney General Barr fire a U.S. attorney who is reportedly investigating corruption in this administration. Jay Clayton should withdraw his name from consideration immediately and remove himself from this sham. President Trump cannot be allowed to desecrate our nominations process further.”

Maybe the political and judicial systems are a bit stronger at standing up to Trump than he would like.


Meanwhile conflicting claims about the Bolton book.

Trump claims that Bolton’s book is fake and lies, but that he is publishing classified information.  But:

More from Fox News:  Judge allows Bolton book to be released, but says he ‘gambled’ with national security

A federal judge on Saturday allowed the forthcoming publication of John Bolton’s memoir to go ahead next week despite concerns it contains classified information – but tore into the former national security adviser for having “gambled” with national security.

“Defendant Bolton has gambled with the national security of the United States. He has exposed his country to harm and himself to civil (and potentially criminal) liability,” Judge Royce Lamberth said in a ruling.  “But these facts do not control the motion before the Court. The government has failed to establish that an injunction will prevent irreparable harm.”

Another failed court action.

But Bolton’s team has claimed that the administration is just trying to suppress embarrassing information about President Trump’s conduct.

“We are grateful that the Court  has vindicated the strong First Amendment protections against censorship and prior restraint of publication,” Adam Rothberg, Simon & Schuster’s senior vice president of corporate communications, said in a statement. “We are very pleased that the public will now have the opportunity to read Ambassador Bolton’s account of his time as National Security Advisor.”

It’s hard to see anything exposing the US to harm more than Trump.

But Trump sees this failure as a win.

 

Nottingham on bail pending Supreme Court appeal of length of home detention

Dermot Nottingham has had a couple of rare successes in court – The Supreme Court recently granted him leave to appeal the length of his home detention sentence, and he has been granted bail pending that appeal.

But there us some risk with his appeal as there is a possibility that the sentence of home detention would have to be replaced with a sentence of imprisonment. And he failed to get leave to appeal a failed application for habeas corpus.

In 2015 Nottingham was charged on two counts of breach of suppression and five counts of criminal harassment.

After a number of delays he was found guilty by a jury in 2018 and a 24 month prison sentence was calculated. This is the maximum that can be converted to a home detention sentence, so this was changed to 12 months home detention, largely on illness grounds despite the sentence being served in the home from which a lot of the offending had occurred via the Lauda Finem website. This was the maximum length home detention sentence allowed under law.

Nottingham appealed both the conviction and sentence and failed with both appeals.

The Solicitor General also appealed the sentence as inadequate and won, so the original sentence was quashed. A new sentence of 31 months home detention was calculated, but as Nottingham had already served three and a half months home detention before getting bail 7 months was deducted, leaving a 24 month prison sentence. This again was the maximum possible that could be converted to home detention, so a new sentence of 12 months home detention was imposed.

NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]

Nottingham appealed this new sentence at the Supreme Court, claiming that the maximum home detention sentence available was 12 moths and he would effectively serve 15 and a half months home detention.

DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019]

He then went back to the Supreme Court and was granted a recall and leave to appeal.

 DERMOT GREGORY NOTTINGHAM v R [2020] NZSC 23 [20 March 2020]

He went back to the Supreme Court seeking bail. This was heard on 24 April.

Bail is opposed by the Crown on a number of bases. The key submissions can be summarised as follows. First, it is said that the appeal has no merit. This submission relies primarily on the proposition that the previous sentence was of no effect once quashed by the Court of Appeal and also on the fact that the time served was taken into account by that Court. On this basis, the sentence imposed was lawful.

We accept the submission for the Crown that the application for bail should be treated as an application for bail pending determination of the sentence appeal. It is therefore necessary to decide whether a grant of bail is in the interests of justice.

We consider that test is met primarily because there is a risk that Mr Nottingham’s sentence appeal would otherwise be rendered nugatory. The point of Mr Nottingham’s appeal is to establish he could not lawfully be required to serve more than 12 months’ home detention. It is not disputed that Mr Nottingham has now served 12 months’ home detention.

But “rendered nugatory” is just one possibility.

Second, the submission is that there is no risk that the appeal will be rendered nugatory if bail is not granted. This is essentially because, the Crown says, that if Mr Nottingham succeeds on his appeal then the sentence of home detention would have to be replaced with a sentence of imprisonment.

I wonder if Nottingham considered the possibility that if he succeeded with his appeal against sentence the outcome could be prison. But that’s not certain.

The submission for the Crown that the appeal is not otherwise rendered nugatory relies on the proposition that a sentence of imprisonment would inevitably be imposed on Mr Nottingham should his appeal succeed. But that is not necessarily so. The Court would have the usual powers applicable on a sentence appeal.

Nevertheless there is a risk of an own goal (or own gaol).

But bail was granted pending the hearing of the appeal, with some strict conditions:

  • (c) not to associate or have contact, directly or indirectly, with any of the witnesses who gave evidence for the Crown (or whose evidence was read or admitted by consent) in the District Court trial, other than with written consent from Crown counsel;
  • (d) not to associate or have contact, directly or indirectly, with the victims in the District Court trial (T, C, H, B and M);
  • (e) not to access the Lauda Finem website other than for the purpose of preparing material directly relevant to the appeal;
  • (f) not to post information on, or provide information to be posted on, the Lauda Finem website; and
  • (g) not to post information on, or provide information to be posted on, any website relatable directly or indirectly to the victims in the District Court trial (referred to in (d) above).

Getting bail during Covid lockdown is only a partial reprieve.

Interesting to see the explicit ban on using Lauda Finem. In his trial Nottingham was found to be the primary person responsible for many attack posts on Lauda Finem, but the blog was shut down (via another court action) and a mirror site hasn’t had any new posts for three years.

But the ban also includes ‘any website’ relatable to the offences.

Also:  The proposed habeas corpus appeal

The habeas corpus appeal is essentially brought on the same basis, that is, detention beyond the period of 12 months is unlawful.

The habeas corpus application was dismissed by van Bohemen J on two bases. First, the Judge considered that the respondent in that case had established the lawfulness of the detention because Mr Nottingham was subject to detention under a lawful order of the Court. Second, the Judge found that habeas corpus was not an appropriate remedy where Mr Nottingham was using habeas corpus to pursue his sentence appeal.

We are satisfied that there are no exceptional circumstances to justify a direct appeal to this Court. That is because, as van Bohemen J found, the question Mr Nottingham would have the Court consider is “classically a question for appeal” and Mr Nottingham will have that on 14 May 2020. His position in the interim is preserved by the grant of bail.

So  the application for leave to appeal against the decision declining habeas corpus was dismissed.

Dermot Gregory Nottingham v R

From the High Court judgment:

It is apparent that Mr Nottingham is asking the High Court to hold that the Court of Appeal’s decision to impose a sentence of 12 months’ home imprisonment is wrong in law. That is a matter for appeal. It is well beyond the jurisdiction of this Court.

NOTTINGHAM v DEPARTMENT OF CORRECTIONS [2020] NZHC 332 [28 February 2020]

Nottingham was applying for habeas corpus to the High Court for essentially the same purpose as his concurrent Court of Appeal action (now at the Supreme Court).

The Supreme Court will hear Nottingham’s appeal against the length of his home detention sentence on 14 May 2020.

Dermot Nottingham leave to appeal to Supreme Court dismissed

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

This isn’t a surprise.

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

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

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

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

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

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

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

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

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

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

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

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

The other proposed questions can be dealt with shortly.

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

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

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

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

Full decision:  Dermot Gregory Nottingham v The Queen

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

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

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

Tikanga could be appropriate for posthumous appeals law?

From Gezza:

Peter Ellis, controversially convicted of child sexual abuse in the Christchurch Civic Creche case, died of advanced bladder cancer before his appeal, seeking to clear his name, could be heard.

Courts in commonwealth countries have traditionally considered that someone’s interest in an appeal ends when they die, as it will not affect them either way.

But Justice Joe Williams threw a curveball into the arguments from both sides when he suggested that New Zealand didn’t need to follow decisions set in any other country, and could establish an entirely new rule based on tikanga Māori.

“There’s nothing to say that the appellant’s case dies when they do … This is a very western idea that on demise you have nothing to protect.

“If we are serious about tikanga, should New Zealand divert from that very anglo approach?” he said. “In a tikanga context … an ancestor has even more reputation to protect. There’s more tapu, more mana to protect.”

This generated some heated discussions across the bench, as Justices debated whether that would open the floodgates for too many cases to be brought forward, and asked for someone to find some statistics.

Neither had prepared arguments either for or against a tikanga approach when preparing for the hearing, though the Crown did concede that it was something “the court must be open to”.

The case was adjourned for five weeks to allow both sides to bring submissions addressing the issue of tikanga, and will continue in the new year.

https://www.stuff.co.nz/national/117435500/peter-ellis-appeal-derailed-by-legal-curveball-on-possible-tikanga-mori-approach
… … …
This is an interesting development. Given that not just Peter Ellis is affected by his conviction, if in fact he was wrongly convicted. His family are too.

The only other circumstances I can think of off hand where a person subsequently held to have been wrongfully convicted has had their convictions effectively quashed – long after their deaths (by execution) – have occurred as pardons, as part of Treaty Settlements (Mokomoko, Kereopa Te Rau).

Rua Kēnana was wrongfully convicted of sedition & sentenced to a year in prison, then released. Eventually Rua moved to Matahi, a community he had founded on the Waimana River in the eastern Bay of Plenty in 1910, where he lived until his death on 20 February 1937, and was survived by five wives, nine sons, and 13 daughters. – Wikipedia

These pardons haven’t generated a flood of requests for posthumous pardons as far as I know.

I think the suggestion that NZ could develop its own law around this situation, rather than simply follow British law – as I assume we do – is a good one & look forward to seeing the Court’s eventual decision & reasoning.

Peter Ellis appeal to be heard by Supreme Court

Peter Ellis was found guilty on 13 charges of abusing children at the Christchurch Civic Creche in 1993. He served seven years of a 10-year prison term, being released in 2000.

There were a number of controversial aspects of the investigation and trial of Ellis, including a range of bizarre allegations, and I think the case is deserving of being re-examined.

In 2015 Justice Minister Amy Adams declined a request from supporters for a commission of inquiry, saying it did not contain new evidence and would not determine guilt – see Peter Ellis considers Privy Council bid

The Supreme Court has now accepted an appeal from Ellis.

Case Name Peter Hugh McGregor Ellis v The Queen
Summary Criminal Appeal – Whether there was a miscarriage of justice arising from risks of contamination of or improperly obtained complainant evidence – Whether there was a miscarriage of justice arising from lack of expert evidence on the reliability of children complainants’ evidence – Whether there was a miscarriage of justice due to unreliable expert evidence being led at trial.
Judgment appealed from – Court of Appeal CA 120/98 14 October 1999

Court of Appeal decision: The Queen v Ellis [1999] NZCA 226; [2000] 1 NZLR 513; (2000) 17 CRNZ 411 (14 October 1999)

Introduction

[1] Peter Hugh McGregor Ellis faced trial in the Christchurch High Court on 28 counts alleging sexual offences against a number of young children attending the Christchurch Civic Childcare Centre. The trial commenced on 26 April 1993 and at its conclusion some six weeks later he was convicted on 16 counts. Three were the subject of a discharge by the Judge during trial, and 9 verdicts of acquittal were entered. On 22 September he was sentenced to an effective term of 10 years imprisonment. On appeal to this Court, in a judgment delivered on 8 September 1994 now reported as R v Ellis (1994) 12 CRNZ 172, three of the counts against one complainant were because of her retraction quashed and verdicts of acquittal directed, but the appeal was otherwise dismissed. Following two applications made to the Governor-General, acting pursuant to s406(a) of the Crimes Act 1961 His Excellency referred the question of the 13 convictions to this Court for hearing and determination. The Order in Council is dated 12 May 1999, identifies five broad grounds contained in the applications, and records these as forming the reasons for the reference.

Result

[95] For the reasons stated, we are not persuaded that any individual ground of appeal has been made out. Neither are we persuaded that their cumulative effect constitutes a miscarriage of justice. The appeal is therefore dismissed.

Now from Stuff:  Peter Ellis asks Supreme Court to hear his appeal over Civic Creche convictions

Ellis, now 61, served seven years of a 10-year jail sentence, before being released in February 2000.

The lawyer who represented him at his trial in 1993, Rob Harrison, is once again on the case and says thousands of hours of work had been done looking at the field of child psychology and what impacts on young interview subjects.

“It deserves to be aired and looked at again,” Harrison said.

Developments in research undertaken over the past 25 years gave better information about how children respond and how to get information from them.

“I would have often thought about the case and it’s one of those cases that is always there.

“It needs to be resolved and it’s a shame it has taken us this long.”

Ellis stood trial at the High Court in Christchurch in 1993, and was convicted of 16 charges after a six-week trial. He had been discharged on some charges and acquitted on others.

Three of the convictions were overturned on appeal in 1994 when one of the complainants retracted her allegations.

Following applications to the governor-general to exercise the prerogative of mercy, the case was referred back to the Court of Appeal in 1999, but the remaining 13 convictions stood.

Throughout, the case called into question the techniques used to interview child complainants and the risk that their evidence might have been contaminated.

It was suggested parents and professional interviewers had asked direct and suggestive questions of children, and that the children were spoken to repeatedly about the allegations.

The Supreme Court has a two-step appeal process.

The court first decides if it will hear the appeal, based on whether it is in the interests of justice. The judges consider whether it is a matter of general public importance, and whether a substantial miscarriage of justice has occurred or will occur if the appeal is not heard.

It is only if the court gives permission that an appeal can be heard.

Since Ellis was first convicted the Supreme Court has taken over from the Privy Council in London as New Zealand’s highest court. The Crown had agreed to Ellis taking his case to the Supreme Court rather than seeking a Privy Council appeal.

The Ellis case has prompted more scrutiny than almost any other in New Zealand’s legal history, involving three court hearings, four petitions seeking his pardon, and numerous other campaigns.

A senior Christchurch lawyer who had previously represented Ellis, Nigel Hampton, QC, has continued to take an interest.

“I think it is a festering sore,” he said recently.

Hampton said then he would not want judges appointed to a commission, and favoured allowing reviews to continue even after the subject of them had died.

“Peter Ellis comes to mind. If he were to die. I think [that] is an extraordinary miscarriage of justice.”

“In contrast to most miscarriage cases, where the wrong person is convicted of something, Ellis has been convicted of crimes that never existed. If he were to die, he would still die a convicted man.”

Obviously this is an important case for Ellis, and a test of the way in which child abuse cases are investigated, but it is also a very important test of the New Zealand judicial system, which seems averse to challenging questionable verdicts.

 

 

Williams v Craig defamation retrial ordered

The legal war of attrition looks set to continue in the defamation  battle between Jordan Williams and Colin Craig.

Stuff:  Colin Craig wins latest defamation duel with Jordan Williams, retrial ordered

Former Conservative Party leader Colin Craig has won a retrial of the case in which he was accused of defaming Jordan Williams.

The bitter and hard-fought case between Craig and Williams, the executive director of the Taxpayers’ Union, went all the way to the Supreme Court, which on Thursday found the High Court jury had been materially misdirected and the case should be run again.

In the first High Court case a jury had found overwhelmingly for Williams and awarded him $1.27 million in damages.

The damages sum was all that Williams had claimed and set a record for defamation awards in New Zealand.

But the High Court judge said it was excessive, set it aside, and ordered a retrial of both the size of the award and whether Williams had been defamed at all.

The Court of Appeal refused to reinstate the damages but said only the part of the case that dealt with damages should be reheard.

Williams was at the Supreme Court in Wellington to hear its 3-2 majority decision delivered. Later he said he would not comment on the decision. Craig could not be contacted.

Neither Williams nor Craig have come out of the initial attacks by Williams via Whale Oil and counter attack via media and mass mail out by Craig, or the 4 week defamation trial, or the subsequent court actions with their reputations enhanced – to the contrary.

And they have added substantially too their loss of reputation by huge and mounting costs.

Decision: https://www.courtsofnz.govt.nz/cases/craig-v-williams/@@images/fileDecision?r=564.327631828

Trump keeps attacking US Supreme Court

Donald Trump is having another spat, this time with the US Supreme Court. Presidents are supposed to keep a distance from Justice branch and not interfere, but Trump continues to do as he pleases.

NY Times:  Trump Takes Aim at Appeals Court, Calling It a ‘Disgrace’

President Trump lashed out on Tuesday against the United States Court of Appeals for the Ninth Circuit, based in San Francisco, calling it a lawless disgrace and threatening unspecified retaliation.

“That’s not law,” he said of the court’s rulings. “Every case that gets filed in the Ninth Circuit we get beaten.”

“It’s a disgrace,” Mr. Trump said.

Mr. Trump’s remarks came after a federal trial judge ordered the administration to resume accepting asylum claims from migrants no matter where or how they entered the United States.

NY Times: Chief Justice Defends Judicial Independence After Trump Attacks ‘Obama Judge’

Chief Justice John G. Roberts Jr. defended the independence and integrity of the federal judiciary on Wednesday, rebuking President Trump for calling a judge who had ruled against his administration’s asylum policy “an Obama judge.”

The chief justice said that was a profound misunderstanding of the judicial role.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

That blunt statement may represent a turning point in the relationship between the heads of two branches of the federal government, which until Wednesday had been characterized by slashing attacks from the president and studied restraint from the chief justice.

Chief Justice Roberts, who was appointed by President George W. Bush, made his statement as he is adjusting to a new dynamic on the Supreme Court. The arrival last month of Mr. Trump’s second appointee, Justice Brett M. Kavanaugh, thrust the chief justice into the court’s ideological center, a spot that had long belonged to Justice Anthony M. Kennedy, who retired in July.

Trump bit back.

Fox news: Trump continues war of words with Chief Justice Roberts; calls 9th Circuit Court a ‘total disaster’

President Trump on Thursday continued his attack on Supreme Court Chief Justice John Roberts and the Ninth Circuit Court of Appeals, calling the court in California a “total disaster” with a “horrible reputation.”

While Trump was correct that 79 percent of the Ninth Circuit Court’s ruling that the Supreme Court heard were overturned – at least between 2010 and 2015 – its reversal rate is not the absolute highest in the country. That title would go to Sixth Circuit, which serves Ohio, Michigan, Kentucky and Tennessee, with an 87 percent average between 2010 and 2015.

The president’s tweet on Thanksgiving morning is just the latest in a series of social media postings slamming the Ninth Circuit Court after U.S. District Judge Jon S. Tigar issued a temporary restraining order late Monday against Trump’s plan to refuse asylum to immigrants who cross the southern border illegally if they do not arrive at a port of entry.

At a press conference Trump talked about the 9th Circuit, saying “everybody knows it is out of control”.

It will raise a few judicial eyebrows if trump keeps attacking judges who deliver judgments that he doesn’t like. It should also raise political eyebrows, but Trump is likely to be given a pass again by GOP politicians.

Presidents have a lot of power. Some want to exercise more power than they are able to. The judiciary is an important check on authoritarian power.

Another Nottingham court failure highlights failures of courts

Dermot Nottingham keeps clocking up failures in courts. The latest is in the Supreme Court, which dismissed an extension of time to appeal a prior appeal.

There is some history going back over four years (with related proceedings that go back to events in 2009). The judgment being appealed: NOTTINGHAM v DISTRICT COURT AT AUCKLAND [2018] NZCA 75 [28 March 2018]:

[1] On 27 April 2017 Gilbert J granted the second respondents’ application to strike out Mr Nottingham’s statement of claim in a judicial review of the District Court at Auckland alleging a criminal conspiracy to pervert the course of justice. The Judge ruled that the claim was replete with scandalous and outrageous allegations without any attempt having been made to provide supporting factual particulars, almost all of the relief sought could not be granted in the context of an application for judicial review and that the flaws in the claim were of such a fundamental character that they could not be saved by amendment.

[2] Mr Nottingham did not file a notice of appeal of that judgment within the required time…

Background

[3] In March 2014 Mr Nottingham commenced a private prosecution in the Auckland District Court against the second respondents. Following a Judge alone trial extending over 17 sitting days, on 20 June 2016 Judge Paul dismissed all charges, acquitted the second respondents and made an order that the appellant pay costs totalling $117,000. Mr Nottingham’s application for leave to appeal pursuant to s 296 of the Criminal Procedure Act 2011 was declined by Davison J.

[4] The prequel to the criminal proceedings were complaints by both Mr Nottingham and Mr Honey to the Real Estate Agents Authority which culminated in a decision of the Real Estate Agents Disciplinary Tribunal,
an appeal to the High Court and a further appeal to this Court.

The prequel goes back a long time – to 2009.

[5] On 12 September 2016 Mr Nottingham commenced this judicial review proceeding alleging that Judge Paul had conspired with court staff and with the second respondents to defeat the course of justice in order to wrongfully acquit the second respondents of the criminal charges Mr Nottingham had brought against them in the private prosecution.

[8] In the present case the delay of six months is substantial. While the notice of application states there are reasonable grounds including medical reasons for the delay, there is nothing in the extensive materials filed in support of the application that provides any detail of such a reason.

[9] Indeed it is difficult to understand how it could credibly be said that Mr Nottingham was precluded on medical grounds from lodging a simple notice of appeal within the 20 working day period provided in the Court of Appeal (Civil) Rules when he was actively involved in other litigation. On 15, 22 and 23 May 2017 he appeared in the High Court at Auckland in support of the application for leave to appeal heard by Davison J. He also appeared in the High Court on 12 June 2017 in support of an appeal from the District Court at Auckland finding him in contempt of Court for wilfully insulting a judicial officer.

[10] In Almond v Read the Supreme Court stated that a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. One of the examples given of a hopeless appeal was where there was an abuse of process such as a collateral attack on issues finally determined in other proceedings. We consider that Mr Nottingham’s judicial review proceeding is an example of such a collateral attack.

[11] Mr Nottingham’s private prosecution was dismissed. An application for leave to appeal was declined. An application under s 303 to this Court is still extant. In those circumstances we consider the nature of Mr Nottingham’s judicial review proceeding offends the general rule of public policy explained in Hunter.

[12] The implications of this collateral attack by a still further litigation process has obvious relevance to the third and fourth of the Almond v Read considerations.

[13] Having regard to all of these factors we conclude that the interests of justice plainly require that we should decline to exercise the discretion to extend time under r 29A for the filing of an appeal against the judgment of Gilbert J.

Result

[14] The application for an extension of time to appeal is declined. The appellant must pay the second respondents costs for a standard application on a band A basis with usual disbursements.

The latest judgment from the Supreme Court dated 20 November 2018 – Nottingham v Auckland District Court and Honey, Honey and Taka.

[1] Mr Nottingham wanted to appeal to the Court of Appeal against a decision of the High Court. He did not file his notice of appeal within time so applied for an extension of time. The Court of Appeal declined to grant an extension of time. Mr Nottingham seeks leave to appeal out of time to this Court against that decision.

[4] The principles applicable to the Court of Appeal’s decision whether or not to grant an extension of time were set out recently by the Court in Almond v Read. Mr Nottingham does not challenge those principles; rather, he seeks to challenge their application by the Court of Appeal to the particular facts of this case. No point of general or public importance accordingly arises. Nor does anything raised by Mr Nottingham give rise to the appearance of a miscarriage of justice. We add that his delay in filing in this Court is unexplained.

[5] For these reasons the application for an extension of time to appeal is dismissed. The applicant is to pay costs of $2,500 to the second respondents.

So a simple judgment, but again using court time and imposing further time and costs on the respondents after an extensive amount of litigation over nearly a decade.

In 2015 Nottingham told me that if ongoing litigation took him ten years he was up for it.

This judgment follows a similar judgment and a similar award of costs earlier this month: DERMOT GREGORY NOTTINGHAM v HEMI TAKA, MARTIN RUSSELL HONEY AND STEPHANIE FRANCIS HONEY [2018] NZSC 102 [5 November 2018]

Costs are supposed to be a deterrent to frivolous, vexatious and hopeless litigation, but they don’t deter Nottingham, who has clocked up hundreds of thousands of dollars in costs awarded against him which led to him being adjudicated bankrupt in September – see HONEY v NOTTINGHAM [2018] NZHC 2382 [11 September 2018].  I was involved in that proceeding and am owed court awarded costs by Nottingham for another failed private prosecution.

I met with the Safe and Effective Justice Advisory Group on Monday to have my say, making suggestions on what I want from the criminal justice system and and how we might make it better. This focused on much of what is again highlighted in this judgment – successive courts have allowed Nottingham to proceed through multiple stages of litigation, incessantly  breaching laws, court rules and timetables, and not paying costs that are supposed to deter these sorts of abuse of the judicial system.

The Advisory group will make recommendations to the Minister of Justice next year, and then it is over to the Minister, Cabinet and Parliament as to what they change.

As per what is highlighted above, requiring judges to enforce procedural legislation and timetables could make a significant difference in limiting vexatious and hopeless litigation.