DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144

DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019]NOTE: HIGH COURT ORDER IN [2014] NZHC 550 PROHIBITINGPUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFDEFENDANTS IN [2014] NZHC 550 AND [2014] NZHC 1848 REMAINSIN FORCE.NOTE: DISTRICT COURT ORDER IN [2018] NZDC 15368 PROHIBITINGPUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF T, C, H, BAND M REMAINS IN FORCE.IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 83/2019[2019] NZSC 144BETWEEN DERMOT GREGORY NOTTINGHAMApplicantAND THE QUEENRespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: Applicant in personC A Brook for RespondentJudgment: 12 December 2019JUDGMENT OF THE COURTA The application for an extension of time is granted.B The application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] Mr Nottingham was convicted following a jury trial of two charges ofpublishing information in breach of suppression orders1 and five charges of criminalharassment.2 He was sentenced by the trial Judge, Judge Down, to a term of 12 monthshome detention and 100 hours of community work.3 His appeal to the Court of Appealagainst conviction and sentence was dismissed.4 The Court allowed theSolicitor-General's appeal against sentence. The Court quashed the part-servedsentence of home detention and imposed a new sentence of 12 months home detentiontogether with 100 hours of community work.[2] Mr Nottingham seeks leave to appeal against conviction and sentence.5Background[3] The charges relating to the suppression orders concerned orders for permanentname suppression made by Winkelmann J in relation to the two young men chargedwith assaulting Stephen Dudley.6 Mr Dudley subsequently died. The Crown case wasthat Mr Nottingham published, or had published, an article on the bloglaudafinem.com headed The Murder of Stephen Dudley – New Zealand's Culture ofRugby, Thuggery & Coverup. The article included photographs and the names of thetwo young men.[4] The criminal harassment charges also related to publications on Lauda Finem.The publications related to five complainants who had each crossed paths withMr Nottingham in some way.[5] Brief reference needs to be made to three of the five complainants, Ms H,Ms B, and Mr M. Ms H worked for her husband in a real estate business. Mr H hadpreviously worked with another real estate agency, AB, with which Mr Nottinghamwas later associated. Mr Nottingham's claim, in essence, was that by running twowebsites Mr H diverted enquiries being made to AB to the website associated with hisnew agency. Mr Nottingham said this diverted business away from Mr Nottingham to1 Criminal Procedure Act 2011, s 211(1).2 Harassment Act 1997, s 8(1).3 R v Nottingham [2018] NZDC 15373.4 Nottingham v R [2019] NZCA 344 (Wild, Thomas and Muir JJ) [CA judgment].5 His application is out of time, but only just. There is no objection to our granting an extension oftime.6 R v M [2014] NZHC 1848; and R v Q [2014] NZHC 550.Mr and Ms H. The Crown case was that over the period 2011–2015, Mr Nottinghamundertook a course of conduct harassing Ms H.[6] Ms B was approached by Mr H in her professional capacity. Mr H raisedconcerns about his dealings with Mr Nottingham. Ms B passed on information aboutMr Nottingham's conduct to the Minister of Internal Affairs. The Crown case allegeda course of criminal conduct amounting to criminal harassment of Ms B over theperiod November 2011–June 2014.[7] Mr M was involved in a review of Mr Nottingham's real estate agent's licence.He ultimately decided Mr Nottingham's licence would not be renewed. The Crownsaid Mr Nottingham's conduct over the period November 2011–February 2015comprised criminal harassment of Mr M.The proposed appeal[8] Mr Nottingham seeks leave to appeal essentially on the basis a miscarriage ofjustice has occurred. The main points he wishes to raise can be summarised as follows:(a) There is evidence which Mr Nottingham says shows Ms H perjuredherself in relation to what she told the Court she knew or did not knowabout the websites. Mr Nottingham says that her falsity on this matteris linked to Mr M and Ms B's subsequent actions.7(b) The Judge (and the prosecution in closing) was wrong to then tell thejury that truth was of limited assistance to them in determining whetherwhat occurred was harassment.(c) Other acts, for example telephone calls, were relied on by theprosecution but there was no evidence substantiating Mr Nottingham'sinvolvement in these acts.7 Mr Nottingham points also to other witnesses at trial whom he says perjured themselves.(d) The charges alleging publications in breach of name suppression shouldhave failed because Mr Nottingham's responsibility for this conductwas not established.(e) Mr Nottingham's physical health affected his ability to stand trial.(f) The Court of Appeal's approach to sentence ignored time served.[9] The only proposed grounds we need to address in any detail are the first two.We can deal with these together as they essentially raise a question about the way theCourt of Appeal dealt with Mr Nottingham's submission in that Court that truth was acomplete answer to the charges under the Harassment Act 1997.[10] The Court of Appeal said first that there was no error in the way the Judgedirected 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 ofoffensiveness, but it was only one part of a composite of considerations relevant inthat respect".8[11] Second, the Court noted that, in any event, on the particular facts the "truth orfalsity analysis" on which Mr Nottingham's submission was based was "academic".9In this respect the Court said:10Much of what was published could at best be described as virulent opinionwith only a tangential connection to anything arguably true. And in respect ofmany of the comments, we regard even that description as excessivelygenerous. As the Crown said in closing, the posts were littered with"hate-filled [invective]" and were strongly misogynistic.[12] The Court went on, after discussing various examples of the type of languageand descriptions used, to say:[54] It was not unreasonable for the jury to identify such material asoffensive. The assessment was one appropriately informed by the compositeof community values which it represented. It is one that an appellate courtwould be more than usually reluctant to interfere with. And to the extent truth8 CA judgment, above n 4, at [50].9 At [51].10 At [51].or falsity did impact on the analysis (as the Judge recognised it had thepotential to do, at least at the margins), assessment of the honesty andreliability of witnesses was again a classic jury function.[13] As is apparent from these excerpts, the observations about the question of truthvery much reflected the particular factual context and were limited to those facts. Noquestion of general or public importance accordingly arises.11 Against that factualbackground, nor does anything raised by Mr Nottingham give rise to the appearanceof a miscarriage of justice arising from the Court's assessment.12[14] The other proposed questions can be dealt with shortly. The issue as to theevidence about telephone calls was a jury matter. It does not meet the criteria forleave. The next of the proposed questions relating to the reasonableness of the verdictson the suppression charges was considered by the Court of Appeal and the proposedquestion would reprise those arguments.13 The Court, having set out the relevantevidence, accepted the Crown submission the circumstantial evidence provided a"very strong, if not overwhelming" Crown case.14 Nothing raised by Mr Nottinghamgives rise to the appearance of a miscarriage of justice as a result of this assessment.[15] Nor does anything advanced by Mr Nottingham give rise to any appearance ofa miscarriage of justice arising in respect to the other two proposed grounds of appealwe have set out.[16] For these reasons, the application for an extension of time is granted and theapplication for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent11 Senior Courts Act 2016, s 74(2)(a).12 Senior Courts Act, s 74(2)(b).13 Mr Nottingham called evidence at trial to challenge his connection with the blog.14 CA judgment, above n 4, at [28].