New Zealand: A new look for the law of contempt in New Zealand?

Introduction

In New Zealand , a finding of contempt of court (or the risk thereof) is antithetical to the proper administration of justice.1 In particular, the shadow of contempt helps to uphold the independence, integrity and impartiality of our judiciary in order to maintain and safeguard our constitutional democracy. Ultimately, this ensures individuals and entities benefit from a fair, expeditious and effective justice system.

Currently, the law of contempt of court is a collection of both common law and statutory provisions that have been said to be lacking in accessibility, understanding and workability in today's modernised world. It is on this basis that the Law Commission was asked to "review the law [of contempt] to consider whether it should be modernised and brought into one new, easily accessible and understandable Act of Parliament."

On 21 June 2017 the Commission presented its report entitled Reforming the Law of Contempt of Court: A Modern Statute (the Report) to the House of Representatives. The Report recommends a number of sweeping reforms. The Government's preliminary response to the Report was issued on 18 August 2017 (the Response) and agrees in principle with the recommended reforms, albeit with a need for further consideration.

The purpose of this article is to provide a brief overview of the current position on the law of contempt and to summarise the Report's recommendations and the Response in order to comment on the future scope of contempt in New Zealand.

The current position in New Zealand

The law of contempt of court is a little known yet widely applicable area of law that has been defined as "anything which plainly tends to create a disregard of the authority of courts of justice".2 While this article does not intend to traverse the intricacies of the different types of contempt, it is worth providing a synopsis of the broad circumstances where an individual or entity can be held in contempt.

Contempt in the face of the court

Contempt in the face of the court includes disruptive courtroom behaviour (by words or actions) that threatens the orderly and due disposition of court business.3 While relatively mundane and low level, disruptions are not usually amenable to a contempt finding (unless incessant), the court will use contempt to ensure the course of justice is not interrupted or unduly interfered with.

In the decision of Forest v R, a finding of contempt of court for the appellant's intemperate outburst while jury members were delivering their verdicts was appealed.4 It was thought that the nature of the comments and the fact that they were made while members of the jury were in the process of delivering their verdicts "gave rise to a risk of influencing those verdicts".5 Notwithstanding the immediate apology, the outburst was considered to directly interfere in the administration of justice and a discounted sentence of four weeks' imprisonment was imposed.

Contempt outside the court

Contempt outside the court encompasses general malfeasance that broadly impedes the proper administration of justice. It is most associated with publications that are unfairly prejudicial to a fair hearing ("publication contempt"). The threshold for a finding of contempt outside the court is whether an individual knowingly carried out an act or was responsible for conduct that contains a "real risk, as distinct from a remote possibility, [and interferes] with the ... [right to] a fair trial."6 In short, when an individual or entity is charged with an offence (whether criminal or civil), the public must be assured the issues will be tried in the courts and not the media.7

In Solicitor-General v Wellington Newspapers Ltd the respondent published information on an individual who was to be tried on charges of aggravated wounding of a police officer.8 The publications included menacing photographs of the accused, his previous criminal convictions, and prominent persons criticising the leniency of the court. It was held that these publications were clearly prejudicial to the accused's right to a fair trial. The obvious argument against a prohibition of publication is an individual's right to freedom of speech. However, McGechan J held that "the loss to any journalist immediacy of publication is nothing compared to the need for a fair trial."9

Contempt by jurors

When members of a jury conduct private research about a trial, refuse to reach a verdict, refuse to consider evidence, or breach jury secrecy, it will amount to a juror being found in contempt of court. This is on the basis that an impartial jury that resists taking account of extraneous material is the historical foundation for the proper administration of justice.

It would seem developments in technology and its accessibility, exacerbate the potential for juror misconduct the most. This was illustrated in the decision of R v Harris where documents printed from the internet were found in the jury room containing information on the 'burden of proof' and 'standard of proof'.10 While the information from the United States (and therefore erroneous in New Zealand terms) was dealt with during the Judge's summing up, it nonetheless shows the concerning threat of extraneous and, in this circumstance, false information that can be obtained by the jury when deliberating.

Contempt by disobeying court orders

If a party to an order has been served with a clear, unambiguous and binding order and has deliberately not complied with it, the court may issue an order arresting the non-complying party on the application of a party entitled to the benefit of the order. This is on the basis that those who choose to ignore an order must be brought to account in order to ensure the public's confidence in the administration of justice is upheld. Indeed, in Blomfield v Slater it was thought that "if people are free to ignore court orders because they disagree with them or believe they are wrong, anarchy cannot be far behind."11

Contempt by scandalising the court

This order is to punish those whose actions constitute false and egregious attacks on the integrity and impartiality of the judiciary. Unlike government or public sector employees, judges of our courts are unable to respond or answer to criticism outside of their judgments. In the face of improper or unfair criticism, the judiciaries' integrity will be upheld by the Solicitor-General.

The circumstances where an action for scandalising the court will be brought must not be fleeting or involve fair and robust criticism. Rather, conduct must be considered somewhat extravagant or scurrilous. In Solicitor-General v Van der Kaap a defendant was imprisoned for six weeks for describing a High Court judge as "one-sided, even criminal", and saying that he had turned the judicial system "into a public toilet, defecating on the principles of justice and the laws of God".12

Concerns with the current law of contempt

The Report calls for the current law of contempt to be reformed based on its lack of accessibility, understandability and workability in our modernised world. Each of these concerns is considered below:

  1. Accessibility - it is foundational that all laws should be readily accessible and their potential punishments (if any) clearly explained. Because the large portion of the current law of contempt is judge-made, the punishments and reasoning for those punishments are contained in individual decisions and not easily accessible to the general public. The preference is to ensure the principles of the law of contempt are incorporated into statute, thus allow a necessary degree of flexibility while still providing an easily accessible means to understanding the law.
  2. Understandability - at times, the scope and content of the law of contempt can be confusing. The piecemeal nature of the law makes it difficult to understand the interrelationship between statutory laws of contempt and the remaining common law provisions. The statutory provisions do not always expressly clarify the position vis-à-vis the common law and have led to incremental appellate court decisions to clarify the position.
  3. Workability - the new age of technology and the internet has created a paradigm shift in the way information is disseminated to the world. This advent of instant information is not lost on the law of contempt.13 In order to ensure the proper administration of justice is upheld, the law needs to better position to deal with the current and future developments in the way people communicate with each other and the world in the digital age.

Recommended changes to the law

The Report represents several years of consultation and consideration with the assistance of a wide range of individuals, entities and overseas authorities. With this in mind it is not so surprising that the Report makes a total of 68 recommendations to the law of contempt, the overarching recommendation being the consolidation of the law into one statutory regime. To this end, the Report contains a draft statute to be called the Administration of Justice (Reform of Contempt of Court) Act that looks to refine, clarify and incorporate the above-mentioned short comings of the current law.

While it is not this article's intention to repeat the recommendations in their entirety, it is worth summarising the proposed changes as follows:

  1. The proposed statutory provisions abolish the existing common law of contempt to the extent that contemptable conduct falls within the new provisions.
  2. The High Court will retain its inherent jurisdiction over any matter falling outside the scope of the proposed statutory provisions.
  3. Save for disruptive behaviour in the courtroom and non-compliance with a court order, new provisions will replace the current civil procedure for contempt with an ordinary criminal prosecution procedure by way of the Criminal Procedure Act 2011.14
  4. A new offence of publishing a false allegation or accusation against the judiciary will carry a significant penalty up to but not exceeding two years' imprisonment, or a fine not exceeding $50,000.00 for individuals, or $100,000.00 for a corporate defendant.
  5. For all other new offences (publication of prejudicial information, intentional juror investigation or research and disclosure of jury deliberations) individuals may be imprisoned for no more than six months, or fined up to $25,000.00, or $100,000.00 for a corporate defendant.
  6. The new offences for publication of prejudicial information and publication of false allegations or accusations against the judiciary will be dealt with by Crown Prosecutors, while the Police will be responsible for investigating and laying charges in all other statutory offences.
  7. The District Court will prosecute all the new offences that do not relate to a trial in the High Court.

These recommendations look to amalgamate this complicated and nuanced area of law that has become somewhat antiquated in our modern society. The Law Commission President, Hon Douglas White QC, has averred that "we [(the Law Commission)] have taken a complicated area of law and made recommendations that give everyone much more certainty. That will make it fairer and easier for everyone, including the media to do its job effectively."

Government response

While the Response accepts that the law of contempt requires modernisation and clarification, the Government wishes to give further consideration to the Report's recommendations. This is on the basis that implementing the recommendations would require significant changes to pre-existing laws, systems and processes that currently govern contempt.

In order to fully consider the Law Commission's stance, the Government has directed the Ministry of Justice to complete a thorough review of the Report and its recommendations. However, it is unlikely that the Government will consider a more fulsome response anytime soon given the impending general election.

It is important to note that the current law of contempt has worked satisfactorily for sometime and will continue to ensure the proper administration of justice until such recommendations are implemented. In principle, little fault can be found with the recommendations to ensure the law of contempt is as clear as possible and more accessible to those that it affects in the face of digital evolution. It is with this in mind that we patiently await further comment from the Government.

Footnotes

1This article is limited to a discussion on contempt of court and does not include contempt of Parliament.
2 Peter Spiller Butterworths New Zealand Law Dictionary (7th ed., LexisNexis New Zealand, 2011) at 64.
3 Morris v Crown Office [1970] 2 QB 114, CA at 122B-C.
4 Forest v R [2016] NZHC 3198.
5 Forest v R [2016] NZHC 3198 at [4].
6 Solicitor-General v Radio New Zealand [1994] 1 NZLR 48 (HC) at 55-56; and Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 (CA) at 567.
7 Solicitor-General v Wellington Newspapers [1995] 1 NZLR 45 (HC).
8 Solicitor-General v Wellington Newspapers [1995] 1 NZLR 45 (HC).
9 At 395.
10 R v Harris CA121-06, 27 September 2006.
11 Blomfield v Slater [2015] NZHC 2239 at [8] paraphrasing Canada (Human Rights Commission) v Taylor (1990) 75 DLR (4th) 577 (SC) at [184] per McLachlin J.
12 Solicitor-General v Van der Kaap HC Hamilton M 155/97, 30 May 1997.
13La Rue v Ministry of Justice Collections Unit [2016] NZHC 666 (criticism of a Judge on Facebook); Solicitor-General v Cox [2016] EWHC 1241 (QB) (mobile phone camera being used in the courtroom); Attorney-General v Dallas [2012] EWHC 156 (Admin) (juror googling information about taking it into account during deliberations).
14The new offences will all be category 1 and 2 offences with no right to elect to be tried by a jury.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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