Jock Anderson

In a peculiar case that won’t go away Miss Alice has lost the latest round in a fight to escape being done for contempt of court.

Frock-wearing Miss Alice, before he changed his name by deed poll earlier this month, used to be known as Robert Alexander (Bob) Moodie, a lawyer who enjoys dressing up in women’s clothing.

In 2004, when he was then known as Dr Bob Moodie, he was instructed to act for King Country farmers Keith and Margaret Berryman.

Mr and Mrs Berryman challenged a decision of the Solicitor General not to order a further coroner’s inquest into the 1994 death on their farm bridge of a beekeeper, whose death an original inquest deemed them to have been largely responsible for.

In the course of acting for the Berryman’s Miss Alice came into possession of documents held by the New Zealand Defence Force including a report known as the Butcher report, originally prepared by the army on the causes of the bridge collapse.

The documents were said to have been provided on certain conditions, including a condition that the Butcher report not be admitted in evidence.

A High Court attempt by the Berrymans to have the conditions lifted was unsuccessful.

However, in March 2005, Miss Alice released the Butcher report to Television New Zealand, which prompted the High Court to immediately order Miss Alice to return all NZDF documents, including the report.

In April last year Miss Alice received a further copy of the report from another source and gave copies to the media as well as posting it on the Internet.

Feathers were well and truly ruffled by now so Robert Dobson QC was appointed by the High Court as an amicus curiae to identify whether Miss Alice was in contempt of court in releasing the Butcher report.

In general terms an amicus is a person who advises a court on things they have particular knowledge of.

In this case Mr Dobson was considered something of a specialist in the murky and widely untried field of contempt of court.

He concluded that it was tolerably clear that Miss Alice was in contempt when he gave the Butcher report to TVNZ and he was arguably so when he disseminated further copies a short time later.

To give the court a bit more help Robert Lithgow, a lawyer experienced in contempt proceedings, was roped in as an additional amicus.

This brace of amici suggested how contempt proceedings might be handled but eventually the Solicitor General decided that it was “constitutionally appropriate” for him to present the case against Miss Alice.

Miss Alice sought an order preventing Messrs Dobson and Lithgow from appearing for the Solicitor General in the proceedings, which was granted in the High Court in July by Justice John Fogarty.

The Solicitor General appealed Justice Fogarty’s ruling to the Court of Appeal with an argument that the role Messrs Dobson and Lithgow would perform in acting for the Solicitor General was one that had always been envisaged they would play and thus there was no change of function.

He also argued the pair would have no improper advantage in any substantive hearing.

If that wasn’t enough the Solicitor General reckoned Justice Fogarty got the wrong end of the stick by not coming to grips with what contempt of court was all about nor appreciating the Solicitor General’s awful part in the great scheme of things contemptuous.

In a decision out today (October 26) Justices Susan Glazebrook, Robert Chambers and Lester Chisholm took little time in siding with the Solicitor General and set aside Justice Fogarty’s prevention order.

Among other things they agreed that Justice Fogarty did not pay “proper regard” to the special character of contempt proceedings and the role of the Solicitor General as Law Officer representing the public interest.

The Solicitor General got $6,000 costs.

The contempt case against Miss Alice can now proceed.

Feedback on this story to jockanderson@ihug.co.nz