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

Last Updated: 15 September 2017
Article by James Anson-Holland

Most Read Contributor in New Zealand, October 2017

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-ŕ-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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.