Juror who refused to take oath 'caught in bind'

SIOBHAN DOWNES
Last updated 16:43 25/02/2014

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An Auckland man found in contempt of court for refusing to sit on a jury genuinely believed it would be wrong to take the oath, the Court of Appeal has been told.

Engineering consultant James McAllister was sentenced to 10 days' jail in July last year after he refused to take an oath or affirmation swearing him on to a jury in the Auckland District Court.

He said he was too busy with work to serve on the jury.

McAllister was found guilty of two acts of contempt against the court, first for refusing to take the oath and second for later backtracking and saying he had reorganised his work schedule and could serve impartially on the jury.

He took his case to the High Court and successfully appealed against the second instance of contempt.

His sentence was reduced to a $750 fine.

In the Court of Appeal in Wellington today lawyer David Jones, QC, appeared on McAllister's behalf to appeal the first act of contempt.

McAllister had a "strong sense of civic duty" and had been genuine in his belief he could not take the oath to be an impartial member of the jury, Jones said.

"An oath is an intensely personal thing ... they can say either yes or no depending on what the oath asks them."

But Justice Forrest Miller said jury service was the "obligation of the citizen" and taking the oath was "not entirely optional".

The judges questioned whether McAllister was putting his work first, and simply had not wanted to be on the jury.

"I see refusing to take the oath and refusing to serve on the jury as the same thing," Justice Mark O'Regan said.

If McAllister had had a good reason to be excused, he should have told the judge beforehand, the judges said.

Jones said McAllister had turned up to the first two days for service and had mistakenly believed he would not be required again.

"If he didn't want to be there, he wouldn't have turned up ... there are hundreds of people who do that every week in this country.

"This is not someone trying to weasel his way out of serving on a jury, he's caught in a bind."

Crown lawyer Mathew Downs said there was no relationship between why McAllister could not be impartial and his work commitments.

"Being busy does not affect partiality," he said.

The judges reserved their decision.

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