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New Zealand Law Commission Reports |
Last Updated: 21 June 2017
E31(140)
May 2017, Wellington, New Zealand | R E P O R T 1 4 0
REFORMING THE LAW OF
CONTEMPT OF COURT: A MODERN STATUTE
KO TE WHAKAHOU I TE
TURE MŌ TE WHAWHATI TIKANGA KI TE KŌTI: HE TURE AO HOU
May 2017, Wellington, New Zealand | REPORT
140
REFORMING THE LAW OF
CONTEMPT OF COURT: A MODERN STATUTE
KO TE WHAKAHOU I TE TURE MŌ TE WHAWHATI TIKANGA KI TE
KŌTI:
HE TURE AO HOU
The Law Commission is an independent, publicly funded, central advisory body
established by statute to undertake the systematic
review, reform and
development of the law of New Zealand. Its purpose is to help achieve law that
is just, principled and accessible,
and that reflects the heritage and
aspirations of the peoples of New Zealand.
The Commissioners are:
The Hon Douglas White QC – President
Donna Buckingham
Helen McQueen
Hon Dr Wayne Mapp QSO
The General Manager of the Law Commission is Jasmine Tietjens
The office of the Law Commission is at Level 19, 171 Featherston Street, Wellington
Postal address: PO Box 2590, Wellington 6140, New Zealand
Document Exchange Number: sp 23534
Telephone: (04) 473-3453, Facsimile: (04) 471-0959
Email: com@lawcom.govt.nz
Internet: www.lawcom.govt.nz
The Māori language version of the Report’s title was developed for the Commission by Kiwa
Hammond, Tohuao and Toi Reo
Māori.
A catalogue record for this title is available from the National Library of
New Zealand. Kei te pātengi raraunga o Te Puna Mātauranga
o Aotearoa
te whakarārangi o tēnei pukapuka.
ISBN: 978-1-877569-79-1 (Print) ISBN: 978-1-877569-78-4 (Online)
ISSN: 0113-2334 (Print) ISSN: 1177-6196 (Online)
This title may be cited as NZLC R140
This title is also available on the internet at the Law Commission’s
website: www.lawcom.govt.nz
ii Law Commission Report
24 May 2017
Hon Amy Adams
Minister Responsible for the Law Commission
Parliament Buildings
WELLINGTON
Dear Minister
NZLC R140 – Reforming the Law of Contempt of Court: A Modern Statute
Ko te Whakahou i te Ture mō Te Whawhati Tikanga ki te Kōti: He Ture Ao Hou
I am pleased to submit to you the above Report under section 16 of the Law
Commission Act 1985. Yours sincerely
Douglas White
President
Reforming the law of contempt of court: A modern statute iii
Foreword
The law of contempt of court will be unknown to many people. Yet it is important law because it provides the ultimate sanction of imprisonment for those who seek to prevent the justice system from operating fairly, effectively and expeditiously. The law of contempt of court ensures:
. court hearings are not disrupted;
. trials are not prejudiced by unfair publicity;
. jurors decide cases only on lawfully admitted evidence;
. judgments and court orders are enforced; and
. the judiciary is protected as far as practicable from false and egregious attacks which undermine
public confidence in its independence, integrity and impartiality.
All of these outcomes are essential in a constitutional democracy such as
New Zealand. They are all part of the rule of law which
New Zealanders expect
will underpin the administration of justice and which will apply to everyone,
including Parliament and the
government of the day.
Without these outcomes New Zealand’s standing as a country with an
enviable justice system, a judiciary of high standing
and an absence of
corruption would be at risk.
There are increasing signs, especially in this digital age, of people
“thumbing their noses” at the rule of law, including
examples of
court hearings being disrupted, online publicity unfairly prejudicing trials,
jurors googling information, people failing
to comply with court orders, and
false and egregious attacks on the judiciary going unanswered.
When it comes to the publication of information unfairly prejudicing trials
and false attacks on the judiciary, it is important
to recognise that such
publications are not protected by the right to freedom of expression.
Freedom of expression is of course an important right in New Zealand affirmed by the New Zealand
Bill of Rights Act 1990. But it is not an absolute right.
The New Zealand Supreme Court has held the right to a fair trial may be
more important. Fair trials may be prejudiced by the publication
of
information about a defendant and by jurors discovering information online
which is not part of the evidence at the trial.
Similarly, the publication of false attacks that undermine public
confidence in the judiciary may be in contempt of court. The
right to
freedom of expression does not protect the publication of untrue factual
allegations and opinions based on them.
Contempt of court is a serious business. People who are held in contempt may
be imprisoned or fined. People who are at risk of penalties
of this nature
– including news media representatives and users of online media
platforms such as bloggers – need to
know where the line between freedom
of expression and contempt is drawn.
At present the law is a mix of common law (court decisions) and
statutory provisions. The Law Commission was asked to review
the law to
consider whether it should be modernised and brought into one new easily
accessible and understandable Act of Parliament.
iv Law Commission Report
After consulting widely over several years, we have concluded that
the law should be brought up- to-date in one statute.
In particular, we
recommend the abolition of the various old common law contempts of court
and their replacement with
new statutory offence provisions that are
easier to understand and apply. We also propose new provisions
specifically
empowering courts to make take down orders for material on
the internet and social media platforms that is liable to affect
the
administration of justice adversely.
At the same time, we recommend the High Court should retain its inherent
jurisdiction so it may still address any conduct not otherwise
covered by the
new statute.
If Parliament accepts our recommendations and enacts our proposed
new offences, it will be important for the new offences
to be enforced in
appropriate cases. The Crown Law Office and the Police will need adequate
resources to ensure they can bring
to account those who commit the new
offences. If the new offences are not enforced, there is a real risk the rule
of law will
be undermined with the adverse consequences already
mentioned.
Douglas White
President
Reforming the law of contempt of court: A modern statute v
Acknowledgements
The Law Commission is grateful to all those who have assisted during the course of this project. In particular, we acknowledge the generous contribution of time and expertise from our independent reviewers:
. Emeritus Professor John Burrows QC
. Bruce Gray QC
. Dr David Harvey, Director of the New Zealand Centre for Information and Communication
Technology Law
. The Hon Sir John McGrath, retired Supreme Court Judge
. Professor ATH Smith
An important feature of our Report is the draft Administration of
Justice (Reform of Contempt of Court) Bill prepared by
Ian Jamieson of the
Office of Parliamentary Counsel. We are particularly grateful to Mr Jamieson
and the Office for its assistance.
The Commissioner responsible for this reference is Douglas White. The legal
and policy advisers for this Report were Jo Dinsdale,
Simon Lamain and
Kristen Ross.
We acknowledge also the valuable contribution made to this reference by former Law Commissioner Judge Peter Boshier and by former legal and policy advisers Cate Honoré Brett, Tania Chin and Lecretia Seales.
LECRETIA SEALES
Until her death in 2015 Lecretia was the senior legal and policy adviser
responsible for the Review of the Law of Contempt reference.
Lecretia was an
outstanding senior adviser at the Commission who made a real contribution
to law reform in New Zealand.
We wish to acknowledge her significant
contribution to this reference. Her professionalism, commitment and caring
personality
is greatly missed at the
Commission.
vi Law Commission Report
Contents
Foreword
..............................................................................................................................
iv
Acknowledgements
..............................................................................................................
vi
Executive summary
...............................................................................................................
3
What is the law of contempt? ............................................................................................................... 3
Why is the power important? .............................................................................................................. 3
Why should we reform the law? .......................................................................................................... 3
Overview of recommended reforms .................................................................................................... 4
Structure of the Report
.........................................................................................................................
5
Recommendations
.................................................................................................................
7
Chapter 2 Publication contempt .......................................................................................................... 7
Chapter 3 Disruptive behaviour in the courtroom
.............................................................................
8
Chapter 4 Juror contempt
..................................................................................................................
|
10
|
Chapter 5 Non-compliance with court orders
..................................................................................
|
11
|
Chapter 6 Abusive allegations and false accusations against judges and
courts ............................
|
12
|
Chapter 7 Inherent jurisdiction, prosecutions and penalties
..........................................................
|
14
|
PART 1 Our Report
..............................................................................................................
|
17
|
Chapter 1 Introduction
.......................................................................................................
18
|
|
What is contempt of court?
...............................................................................................................
|
18
|
Why is contempt of court important?
...............................................................................................
|
24
|
Why law reform is needed
................................................................................................................
|
25
|
Our review
.........................................................................................................................................
|
32
|
Chapter 2 Publication contempt
.........................................................................................
|
36
|
Introduction
.......................................................................................................................................
|
36
|
Protecting the integrity of a fair trial
................................................................................................
|
36
|
Publication contempt in civil proceedings
........................................................................................
|
44
|
The Issues Paper and submissions
....................................................................................................
|
46
|
Recommended approach
...................................................................................................................
|
51
|
Chapter 3 Disruptive behaviour in the courtroom
.............................................................
|
58
|
Introduction
.......................................................................................................................................
|
58
|
Current law
........................................................................................................................................
|
59
|
Procedure
............................................................................................................................................
|
60
|
Current guidance
...............................................................................................................................
|
62
|
Recommended reforms
......................................................................................................................
|
63
|
Chapter 4 Juror contempt
...................................................................................................
|
71
|
Reforming the law of contempt of court: A modern statute 1
Contents
Introduction
.......................................................................................................................................
|
71
|
Accessing information
.......................................................................................................................
|
72
|
Disclosing information
......................................................................................................................
|
80
|
Chapter 5 Non-compliance with court orders
....................................................................
|
88
|
Introduction
.......................................................................................................................................
|
88
|
The contempt of non-compliance
.....................................................................................................
|
88
|
Related enforcement regimes
............................................................................................................
|
95
|
Issues Paper
........................................................................................................................................
|
97
|
The Commission’s recommended reforms
.....................................................................................
100
Chapter 6 Abusive allegations and false accusations against judges and
courts .............. 104
Introduction
.....................................................................................................................................
|
104
|
Historical background
.....................................................................................................................
|
109
|
Issues with common law
.................................................................................................................
|
110
|
Other remedies
.................................................................................................................................
|
111
|
Position today
...................................................................................................................................
|
113
|
Issues Paper
......................................................................................................................................
|
114
|
Submissions on the Issues Paper
....................................................................................................
|
115
|
Our assessment
................................................................................................................................
|
116
|
Chapter 7 Inherent jurisdiction, prosecutions and penalties
...........................................
|
128
|
Introduction
.....................................................................................................................................
|
128
|
Should the High Court retain its inherent jurisdiction to hold a person in
contempt? ...............
|
128
|
“Prosecution” procedure
.................................................................................................................
|
133
|
Setting penalties
...............................................................................................................................
|
139
|
PART 2 The Bill and commentary
......................................................................................
|
145
|
Administration of Justice (Reform of Contempt of Court) Bill and
commentary ............ 146
|
|
Introduction
.....................................................................................................................................
|
146
|
Title and commencement
................................................................................................................
|
147
|
Part 1 – Preliminary provisions
......................................................................................................
|
147
|
Part 2 – Provisions to promote and facilitate administration of
justice .......................................
|
150
|
Part 3 – General provisions and consequential amendments
.......................................................
|
168
|
Schedule 1 – Transitional, savings, and related provisions
..........................................................
|
170
|
APPENDICES
.......................................................................................................................
|
171
|
Appendix 1 Court orders enforced by offence provisions
................................................
|
172
|
Appendix 2 Administration of Justice (Reform of Contempt of Court)
Bill ....................
|
177
|
Appendix 3 List of submitters and consultees
..................................................................
|
201
|
List of submitters
.............................................................................................................................
|
201
|
Consultation list
...............................................................................................................................
202
|
2 Law Commission Report
Executive summary
WHAT IS THE LAW OF CONTEMPT?
1 The law of contempt of court is essential for the
justice system to work fairly, expeditiously and cost effectively.
2 Contempt is committed by those who disrupt court
business, interfere with fair trials, fail to comply with court orders or
make false and egregious attacks on the judiciary as an institution. Contempt
is not concerned with preventing legitimate criticism
of judges or their
decisions or with protecting the feelings of individual judges.
3 The ultimate sanctions for contempt are imprisonment or a significant fine. These sanctions create a strong incentive for people to comply. Consequently, in many cases, courts are able to rely on the existence of the power to ensure court business does proceed fairly, expeditiously and cost effectively.
WHY IS THE POWER IMPORTANT?
4 If courts did not have the power or authority to
punish for contempt, there is every prospect they would cease to function
properly,
with disrupted and delayed hearings and adjourned and rescheduled
trials. The direct and indirect costs to the parties and the
state from these
outcomes would be serious and substantial.
5 Public confidence in the administration of
justice would suffer because of unenforced court orders. There would
also
be adverse financial consequences for successful parties, and
unanswered attacks on the independence, integrity and
impartiality of the
judiciary.
6 Courts need the authority or power to punish for contempt to preserve an effective, efficient and expeditious court system and to maintain the rule of law in our constitutional democracy.
WHY SHOULD WE REFORM THE LAW?
7 New Zealand should retain the law of contempt of
court, but there are three main reasons why we should reform it.
8 First, it is not readily accessible to those it
affects. This is because it is to be found partly in a number of different
Acts
of Parliament and partly in decisions of the courts, some recent, but
others old. The law is a peculiar mixture of legislation
and case law. Now is
the time to collect the law together in one Act. This will make it much more
accessible.
9 Second, the law is not clear or easily
understandable. Courts are still developing the boundaries of the law,
especially the
line between contempt and freedom of expression
and the relationships between the relevant legislation and the
case law.
Aspects of the law are out of date. The language of contempt is antiquated
and inappropriate in modern society.
Even the word contempt itself is odd in
this context.
10 People the law of contempt affects are entitled
to know in advance what the law is. News media representatives and
bloggers
who report court proceedings need to know where the line is
drawn between contempt and freedom of expression. Jurors,
whose work
underpins
Reforming the law of contempt of court: A modern statute 3
Executive Summary
our criminal justice system, need to know they may not make their
own inquiries on the internet, and the reasons for
the prohibition. People
should not be at risk of imprisonment or a substantial fine without this
knowledge, especially as they may
commit contempt now without being charged
with any statutory criminal offence or without having a trial. Enacting a
modern statute
will make the law much more understandable.
11 Third, in several significant respects the law is not
working as it should. In particular, it has not kept pace with the digital
age. These challenges include the ready availability of a vast amount of
online information and the unrestricted ability of people
to communicate their
views by way of the internet and social media. These developments have led to a
variety of problems for the
administration of justice.
12 Anyone, including the media, a blogger or a juror, is
able to google information about a trial and the people involved in it. This
creates real risks of prejudicial pre-trial publicity and of a jury
convicting a defendant on the basis of information not
proved in evidence
and tested at trial. This could jeopardise a defendant’s right to a fair
trial.
13 Court orders requiring people to take down
objectionable material from online sites, some of which may be overseas, are
difficult
to enforce, especially in circumstances where the material is hosted
on less reputable servers that provide a degree of anonymity
and have little
incentive to comply with the order. There are examples of people simply
ignoring or circumventing such orders
and a concerning reluctance on the part
of authorities to take action. The rule of law is undermined when courts
cannot enforce
orders.
14 False and egregious attacks on the independence,
integrity and impartiality of the judiciary, including views published
online, are frequently left unanswered. This tends to undermine public
confidence in one of the important arms of government
and hence the rule
of law. If judges face overt or covert bullying or pressure, or personal
ridicule or threats, their impartiality
or ability to adjudicate without fear or
favour may be called into question.
15 The law needs to respond to these developments by ensuring courts have adequate and up-to- date powers to address them.
OVERVIEW OF RECOMMENDED REFORMS
16 To reform the law, the Law Commission is
recommending a new statute to be called The Administration of Justice
(Reform of Contempt of Court) Act containing replacement offences, new
enforcement provisions and new processes for them.
17 To ensure courts retain all powers
necessary to maintain public confidence in the administration of
justice,
however, the Act will not codify the law completely. The High Court
will retain a residual authority to deal with any conduct
not covered by
the Act. This will reinforce the constitutional independence of the courts
and the judiciary and will uphold
the rule of law.
18 A draft Bill implementing these reforms in clear
modern language is included in our Report, together with commentary on the
Bill’s provisions.
4 Law Commission Report
STRUCTURE OF THE REPORT
19 The Report is divided into seven chapters.
Chapter 1 Introduction
20 This chapter explains what the law of contempt of
court covers, why it is important and why we need reform. It also outlines
the
process we undertook to conduct our review and introduces our
recommendations.
Chapter 2 Publication contempt
21 This chapter mainly addresses publications that interfere with a person’s right to a fair trial.
This is most often the context in which a publication interferes with
the administration of justice. The chapter also
considers publications
that interfere with access to justice by trying to influence the course of
those proceedings or pressuring
a litigant to settle or withdraw. The chapter
focuses on temporary suppression of information that poses a real risk of
prejudice
to a fair trial. Accredited media will receive a right to be
heard in relation to any suppression decision under the
recommenced
provisions. We also recommend a new statutory offence to replace the common
law in this area.
Chapter 3 Disruptive behaviour in the courtroom
22 This chapter looks at how the courts deal with
disruptions in the courtroom. The primary issue we consider for the
purpose of our recommendations is whether there should be a statutory
procedure for managing disruptions in the courtroom.
The chapter also
considers and recommends some changes to the scope of disruptive behaviour.
Under the proposed new provision
there will be an increase in the level of
maximum fines available.
Chapter 4 Juror contempt
23 This chapter considers the law of contempt as it
applies to jurors. In this chapter we address the problem of the googling
juror, who undertakes his or her own research, and the problem of jurors
or others disclosing confidential jury deliberations
during or after the
trial. Our recommendations aim to clarify the law as it applies to jurors as
well as proactively managing
the risk that jurors will unwittingly jeopardise
a fair trial.
Chapter 5 Non-compliance with court orders
24 This chapter concerns the contempt of failing or
refusing to comply with a court order. In civil proceedings, contempt is an
important
enforcement mechanism that is available to litigants if court
orders made in their favour are not complied with. Here we consider
whether
Parliament should enact a new statutory regime to respond to non-compliance
with court orders in civil proceedings.
Chapter 6 Abusive allegations and false allegations against judges
and courts
25 This chapter deals with the contempt of undermining
confidence in the court itself by false and egregious attacks on the
judiciary.
We consider whether this contempt, known as “scandalising the
court” or “scandalising the judiciary”, should
be abolished
as a form of contempt under the common law. We recommend that it should, but
that there should be a new offence enacted
in its place to address untrue
allegations or accusations that pose a real risk of undermining public
confidence in the judiciary
and the courts.
Reforming the law of contempt of court: A modern statute 5
Executive Summary
Chapter 7 Inherent jurisdiction, prosecutions, and
penalties
26 This chapter considers whether, in view of the new
statutory offences we have recommended throughout the Report, we should
abolish all common law contempt and replace it with statutory offences,
perhaps including a general residual offence.
The chapter also discusses
the prosecution procedure for the new statutory offences and whether we
need some special arrangements
for prosecuting these new offences. Finally,
it explains the rationale behind penalty levels for the new
offences.
6 Law Commission Report
Recommendations
CHAPTER 2 PUBLICATION CONTEMPT
RECOMMENDATIONS
R1 For the purpose of preserving the right to a fair
trial, a new statutory provision should be enacted prohibiting publication
or
reporting of an arrested person’s previous convictions and any concurrent
charges. The provision should require the pre-trial
or trial court to keep the
prohibition under review and authorise the court to lift, extend or vary
the prohibition as necessary
in any particular case. The prohibition
should apply from the time a person is arrested and only where the person
is arrested
for an offence for which he or she is liable to be tried by a jury
(a category 3 or 4 offence).
R2 A new statutory provision should authorise a court to
make an order postponing publication of other information if the court is
satisfied that this appears to be necessary to avoid a real risk of prejudice
to a fair trial. The court might make such an order
at any time after a person
is arrested and before the trial has been completed and must make it for a
limited period, not extending
beyond the completion of the
proceedings.
R3 A new statutory provision should authorise a court to
make an order that an online content host take down or disable public access
to any specific information covered by the statutory prohibition in R1, or any
suppression order made under R2.
R4 A provision modelled on section 210 of the Criminal
Procedure Act 2011 should give members of accredited media, and any
other
person reporting on the proceedings with the permission of the court,
standing to initiate or be heard on any application
for an order in respect
of R1 to R3 or any application to renew, vary or revoke any order.
R5 Subpart 7 of Part 6 of the Criminal Procedure Act 2011
should be amended to give a right of appeal against any decision to make or
refuse to make a suppression order under R2 or R3 or to renew, vary, or revoke
a suppression order under R2 or R3 or lift, extend
or vary the prohibition
in R1.
R6 A new statutory offence provision modelled on section 211 of the Criminal Procedure Act
2011 should provide:
(a)
(b)
It is an offence for any person, knowingly or recklessly, to publish
material in breach of the statutory prohibition in R1 or any
suppression
order under R2 or take down order under R3.
The offence in (a)
should be punishable:
(i)
(ii)
in the case of an individual, by a term of imprisonment not exceeding 6
months or a fine not exceeding $25,000; or
in the case of a body
corporate, by a fine not exceeding $100,000.
(c)
It is a strict liability offence for any person to publish material in breach
of the statutory prohibition in R1 or any suppression
order under R2 or take
down order under R3.
Reforming the law of contempt of court: A modern statute 7
Recommendations
(d)
The offence in (c) should be punishable:
(i) (ii)
in the case of an individual, by a fine not exceeding $10,000;
or
in the case of a body corporate, by a fine not exceeding
$40,000.
R7 There should be a new offence to replace the
common law contempt of publishing information that interferes with
a
fair trial, which should be abolished: see R61 below. The new offence should
apply from the time a person (the arrested
person) is arrested for an
offence for which he or she is liable to be tried by a jury (a category 3 or 4
offence). Under the
new offence provision, a person would commit an offence
if:
(a)
(b)
he or she intentionally publishes information that is relevant to
an arrested person’s trial; and
there is a real risk that the publication prejudices the arrested
person’s right to a fair trial.
R8 The maximum penalty for the offence in R7 should be a term of imprisonment for up to 6 months or a fine not exceeding $25,000, or in the case of a body corporate a fine not exceeding $100,000.
R9 It should be a defence for a person prosecuted for the
offence in R7 to prove on the balance of probabilities that:
(a) (b)
(c) (d)
after taking all reasonable care the person was unaware and had no
reason to be aware of the possibility or existence of the trial;
or
the
person was the online host or distributor of the publication and after
taking all reasonable care he or she
was unaware and had no reason
to be aware that it contained the information that created a real risk of
prejudicing the
arrested person’s right to a fair trial; or
the
publication was a good faith contribution to a discussion of public affairs;
or
the publication was a fair and accurate report of court proceedings
held in public and published at the time and in good faith.
R10
Appeals in respect of the offences in R6 and R7 should be under subpart 3
(Appeals against conviction) and subpart 4 (Appeals
against sentence) and
not under subpart 5 (Appeals against finding of or sentence for contempt of
court) of Part 6 of the Criminal
Procedure Act
2011 because the
offences in R6 and R7 are ordinary offences and not contempt of
court.
CHAPTER 3 DISRUPTIVE BEHAVIOUR IN THE COURTROOM
RECOMMENDATIONS
R11
New statutory provisions dealing with disruptive behaviour in the court
should:
(a)
Authorise the judge to deal with the immediate disruption by
citing the person for disrupting the court and, if necessary,
ordering
the person to be taken into the court cells until the rising of the court
that day.
8 Law Commission Report
(b)
(c) (d)
(e) (f) (g)
(h)
(i)
Give the person the opportunity to exercise his or her right to consult
and instruct a lawyer under section 24(c) of the New
Zealand Bill of Rights
Act 1990.
Allow the person a reasonable opportunity to apologise to the
court.
Require the judge to review the matter before the rising of
the court that day and decide whether he or she considers further
punishment
may be necessary by having the matter set down for determination.
Apply
the Bail Act 2000, with the necessary modifications, as if the person
cited for disrupting the court was charged with
an offence that carries the
penalties required by that Act.
If the matter is set down for
determination, require the judge to give the person written reasons specifying
the behaviour the
judge believes constitutes disruptive behaviour in the
court and makes the person liable for further punishment.
If the matter
is set down for determination, direct the judge to consider whether
exceptional circumstances warrant a
different judge hearing the
case.
Give the judge hearing the case the discretion to receive any
explanation offered by the person to ensure the case proceeds on a
reliable
factual platform.
Clarify that a person found guilty of, and punished for, disruptive behaviour
in the court is not convicted of an offence.
R12
R13
R14
R15
R16
R17
Conduct giving rise to a potential determination of disruptive behaviour
in court should be focused on conduct that interrupts
proceedings and poses a
threat to the due administration of justice.
On making a finding that a
person is guilty of disruptive behaviour in court, the court may sentence the
person to a term
of imprisonment not exceeding 3 months or a fine
not exceeding $10,000.
The Sentencing Act 2002 should apply in respect
of any sentence imposed by the court under the new provision as if the person
had been convicted of an offence.
Appeals against any finding that a
person is guilty of disruptive behaviour under the new provision should be
heard under
subpart 5 of Part 6 (sections 260 to 269) of the Criminal
Procedure Act 2011.
The new statutory provisions that deal with
disruptive behaviour in court should apply to all courts, the Human Rights
Tribunal,
and any other tribunals that currently have the power to impose
sanctions for disruptive behaviour.
The new statutory provisions dealing with disruptive behaviour in court
should be located in a new Administration of Justice (Reform
of Contempt of
Court) Act.
Reforming the law of contempt of court: A modern statute 9
Recommendations
CHAPTER 4 JUROR CONTEMPT
RECOMMENDATIONS
R18
R19
R20
R21
R22
R23
R24
R25
It should be an offence for a member of the jury constituted for a
trial intentionally to investigate or research information
when he or she knows
or ought reasonably to know that it is or may be information relevant to the
case.
The maximum penalty for the offence in R18 should be a
term of imprisonment not exceeding 3 months or a fine not exceeding
$10,000.
The Ministry of Justice should be invited to review educational
information provided to those called for jury service and to jurors
to ensure it
provides adequate guidance on the problems, risks and consequences if jurors
undertake their own investigations or research.
It should be standard
practice in cases that have attracted public attention for the trial judge to
clarify whether potential jurors
have already been exposed to information
about the case to a degree that means they may not be able to try the case
fairly on
the evidence presented in court. The judiciary should be invited to
consider how to promote more standard practices amongst jury
warranted judges in
this area.
The juror oath and affirmation should be changed to ensure
the juror expressly agrees to decide the case according to the
evidence
presented in court, and not to undertake their own investigations or
research.
The judiciary should be invited to review guidelines to ensure
jurors are put on notice that undertaking their own investigations
or
research will be an offence punishable by fine or imprisonment. More
comprehensive and consistent directions that provide
jurors with a clear
explanation of why their decision must be based only on the evidence presented
in court and the risks if they
undertake their own investigations or
research should be developed and should become standard practice.
It
should be an offence for any person, including a person who is or has
served on a jury, intentionally to disclose, solicit
or publish details of a
jury’s deliberations.
The offence in R24 should be
punishable:
(a)
(b)
in the case of an individual, by a term of imprisonment not exceeding 3
months or a fine not exceeding $10,000; or
in the case of a body
corporate, by a fine not exceeding $40,000.
R26
It should not be an offence under R24:
(a) (b)
for a juror to disclose information and to raise concerns about
misconduct with the trial judge during the proceedings; or
for any
person after the proceedings have been completed or the jury has been
discharged, to disclose information to one
or more listed agencies if
that person has reason to believe that an offence may have been committed
or that the conduct of a juror may provide grounds
for a mistrial or an
appeal. The listed agencies to which a disclosure may be made are the
Police, the Solicitor-General, counsel who acted for the
Crown or
counsel who acted for the defence.
10 Law Commission Report
R27
R28
R29
R30
R31
It should not be an offence under R24 for a juror or former juror to
disclose any information to any researcher who has an authorisation
from the
Judicial Research Committee for the conduct of research about juries or jury
service or for any researcher working under
such an authorisation to solicit
such information.
It should not be an offence under R24 for a juror or
former juror to disclose any information to a health practitioner (including
a counsellor) registered under the Health Practitioners Competence
Assurance Act 2003.
The Ministry of Justice should be invited to review
educational information provided to those called for jury service and to jurors
to ensure it provides adequate and clear guidance on the problems, risks and
consequences if jurors disclose information about
the case.
The
judiciary should be invited to review guidelines to promote standard practice
among jury warranted judges regarding giving directions
to jurors about the
problems, risks and consequences if jurors disclose information about the
case.
Appeals in respect of the offences in R18 and R24 should be under
subpart 3 (Appeals against conviction) and subpart
4 (Appeals against
sentence) of Part 6 of the Criminal Procedure Act 2011 because the
offences in R18 and R24 are
ordinary offences and not contempt of
court.
CHAPTER 5 NON-COMPLIANCE WITH COURT ORDERS
RECOMMENDATIONS
R32
R33
R34
R35
R36
New statutory provisions should be enacted to replace the common
law in respect of contempt involving a breach of or
failure to comply with an
applicable court order.
Under the new provisions, a person who has
obtained an applicable court order may apply to the court for an order that the
other
party has failed to comply with the order.
Under the new
provisions, the Solicitor-General should have discretion to apply to the courts
for an order that a person has failed
to comply with an applicable court
order.
For the purposes of the new provisions, an applicable court
order means, whether or not the order is in a judgment, a court order to do
or abstain from doing something that is not paying a sum
of money or any
undertaking given to the court where, on the faith of that undertaking, the
court has sanctioned a particular
course of action or inaction. Orders for
the recovery of land should also be excluded. The relevant court would be the
court
in which the applicable court order was made or any court to which
the proceedings have been transferred for enforcement,
or any court of appeal
hearing an appeal in respect of the proceedings.
The court may make an order finding the person has failed to comply with
an applicable court order if satisfied beyond reasonable
doubt that:
(a)
(b)
the applicable court order has been made in clear and
unambiguous terms and is binding on the person;
the person has knowledge or proper notice of the terms of the
court order being enforced; and
Reforming the law of contempt of court: A modern statute 11
Recommendations
(c)
the person has, without reasonable excuse, intentionally failed to
comply with the applicable court order.
R37
R38
Where the person who has failed to comply with the applicable court order is a company or incorporated society the court may make an order finding any director or officer of the company or incorporated society has failed to comply with an applicable court order under R36.
On making a finding that a person has failed to comply with an applicable court order, the court may sentence the person to:
(a) (b)
a term of imprisonment not exceeding 6 months; or a fine not exceeding
$25,000.
R39
R40
R41
On making a finding that a person has failed to comply with an applicable court order, the
High Court may issue a sequestration order against the property of the
non-complying party.
The Sentencing Act 2002 should apply in respect
of any sentence imposed by the court under the new provision as if the person
had been convicted of an offence.
Appeals against any finding that a person has failed to comply with an
applicable court order under the new provision should be heard
under subpart 5
of Part 6 (sections 260 to 269) of the Criminal Procedure Act
2011.
CHAPTER 6 ABUSIVE ALLEGATIONS AND FALSE ACCUSATIONS AGAINST JUDGES AND
COURTS
RECOMMENDATIONS
R42
R43
R44
R45
The common law of contempt of scandalising the court should be
abolished.
It should be an offence for any person (i) to publish
an untrue allegation or accusation against a judge or a court (ii)
when
there is a real risk that the publication could undermine public confidence
in the independence, integrity or impartiality
of the judiciary or a
court.
The maximum penalty for the offence in R43 should be a term of
imprisonment up to but not including two years or a fine not exceeding
$50,000
or, in the case of a body corporate, a fine not exceeding $100,000.
It should be a defence for a person prosecuted for the offence in R43
to prove on the balance of probabilities that:
(a)
(b)
the allegation or accusation was true (i.e. a defence of truth should
be available to the person publishing the material); or
the person was the online host or distributor of the publication and
was unaware it contained the allegation or accusation.
R46
The Solicitor-General should be responsible for receiving complaints and
filtering potential prosecutions by investigating and
deciding whether there
is a sufficient evidential base to bring a prosecution and whether prosecution
is in the public interest.
In deciding whether there is sufficient evidence,
the Solicitor-General would be able to take account of
the
12 Law Commission Report
R47
absence of any complaint about the judge’s conduct to the
Police or the Judicial Conduct
Commissioner and the adequacy of any explanation.
If the
Solicitor-General has reason to believe that a person may have committed an
offence against R43, the Solicitor-General
may, but is not obliged to,
take any of the following action:
(a) (b) (c)
(d)
request the alleged offender to retract the allegation or accusation or
apologise for it, or both:
request the alleged offender to retract the
allegation or accusation pending the hearing of the charge:
request an
online content host to take down or disable public access to any specified
information relating to the allegation or
accusation that the host has made
accessible to members of the public: or
apply to the High Court for
an order under R48.
R48
If the Solicitor-General makes an application under R47(d), the High Court may, if satisfied that there is an arguable case that a person has committed an offence against R43, order the person to:
(a) (b) (c) (d) (e)
take down or disable public access to material;
retract the
allegation or accusation;
not encourage any other persons to engage in
similar communications;
publish a correction; or publish an apology.
R49
The Court may:
(a) (b) (c)
make any order under R48 on an interim basis, pending the filing of a
charge;
vary or discharge any interim order; or
make an interim
order permanent, but only if the interim order is accepted or a person is
convicted of the charge.
R50
R51
In addition to any of the orders the Court may make under R48, the Court should have power to order that an online content host take down or disable public access to any material related to the suspected offence that the host has made accessible to members of the public.
When making an order that a correction or apology be published under
R48, the Court should, subject to the New Zealand Bill
of Rights Act 1990, be
able to include requirements relating to:
(a) (b) (c)
the content of the correction or apology;
the time of publication
of the correction or apology; and
the prominence to be given to the
correction in the particular medium in which it is
published.
Reforming the law of contempt of court: A modern statute 13
Recommendations
R52
R53
R54
R55
A provision modelled on section 210 of the Criminal Procedure Act
2011 should give members of accredited media, and
any other person
reporting on the proceedings with the permission of the court, standing to
be heard on any application
for a take down order under R48(a) or any
application to renew, vary or revoke any order.
Subpart 7 of Part 6 of
the Criminal Procedure Act 2011 should be amended to give a right of appeal
against any decision to make
or refuse to make any order under R48 or R50
or to renew, vary, or revoke an order made under R48 or R50.
It should
be an offence for a person knowingly or recklessly to breach any order made
under
R48 or R50.
The offence in R54 should be
punishable:
(a)
(b)
in the case of an individual, by a term of imprisonment not exceeding 6
months or a fine not exceeding $25,000; or
in the case of a body
corporate, by a fine not exceeding $100,000.
R56
R57
It should be a strict liability offence to fail to comply with an order made
under R48 or R50.
The offence in R56 should be punishable:
(a) (b)
in the case of an individual, by a fine not exceeding $10,000;
or
in the case of a body corporate, by a fine not exceeding
$40,000.
R58
Appeals in respect of the offences in R43, R54, and R56 should be under
subpart 3 (Appeals against conviction) and subpart 4
(Appeals against
sentence) of Part 6 of the Criminal Procedure Act 2011 because the
offences in R43, R54, and R56 are
ordinary offences and not contempt of
court.
CHAPTER 7 INHERENT JURISDICTION, PROSECUTIONS AND PENALTIES
RECOMMENDATIONS
R59
R60
R61
The new Administration of Justice (Reform of Contempt of Court) Act should
not limit or affect any authority or power of the
High Court to punish any
person for contempt of court in any case to which the provisions in the new Act
do not apply. Section 9(a)
of the Crimes Act 1961 should be amended so that
the inherent jurisdiction of the High Court to punish for contempt is subject
to the Administration of Justice (Reform of Contempt of Court) Act.
In
any case to which the provisions in the new Administration of Justice
(Reform of Contempt of Court) Act applies the
jurisdiction of a court to punish
any person for contempt of court is replaced fully by the jurisdiction of the
courts under the
Act.
The new Administration of Justice (Reform of Contempt of Court) Act should abolish as part of the common law of New Zealand the following forms of contempt:
(a) (b) (c)
contempt in the face of the court;
publishing information that
interferes with a fair trial;
contempt by
jurors;
14 Law Commission Report
(d)
(e)
contempt by disobeying court orders; and
scandalising the
court.
R62
R63
R64
To address any doubt over the contempt powers of the Supreme Court and
the Court of Appeal a new provision should be enacted
to make it clear that
both appellate courts have the same authority over contempt as the High Court
has under its inherent jurisdiction.
The new offences recommended in
chapter 2 (R7), chapter 4 (R18) and (R24) and chapter 6 (R43) should, subject
to the recommendations
in (R64) to (R68) below, be prosecuted in the usual way
in the District Court.
Where charges in respect of the following new offences relate to a trial in the High Court, the prosecution should be transferred to the High Court for trial:
(a) (b) (c)
publication of information that poses a real risk of prejudice to a fair
trial (R7), intentional investigation or research by
a juror into the case they
are hearing (R18); and disclosure of jury deliberations (R24).
R65
R66
R67
R68
All prosecutions for the new offence of publishing an untrue allegation or
accusation against a judge or a court where there
is a real risk that the
publication could undermine public confidence in the independence,
integrity or impartiality of the
judiciary or a court (R43) should be
transferred to the High Court for trial.
The Solicitor-General should be
responsible for receiving and investigating complaints and filing a
charging document for
the new offence of publishing an untrue
allegation or accusation against a judge or a court where there is a real
risk that the publication could undermine public confidence in the
independence, integrity or impartiality of the judiciary
or a court
(R43).
The Police should be responsible for receiving and
investigating complaints and laying charges for all the other new offences
recommended in this Report for inclusion in the new Administration of Justice
(Reform of Contempt of Court) Act.
The Crown Prosecution Regulations 2013 should be amended to include
the following offences in the Schedule:
(a) (b)
publication of information that poses a real risk of prejudice to a fair
trial (R7); and publication of an untrue allegation or
accusation against a
judge or a court where there
is a real risk that the publication
could undermine public confidence in the independence, integrity or
impartiality
of the judiciary or a court
(R43).
Reforming the law of contempt of court: A modern statute 15
Recommendations
16 Law Commission Report
Part 1
OUR REPORT
CHAPTER 1: Introduction
Chapter 1
Introduction
WHAT IS CONTEMPT OF COURT?
1.1
Contempt of court promotes the fair, expeditious and cost effective
administration of justice. Courts have developed today’s
contempt laws
over centuries to prevent or punish conduct seen as interfering with the
administration of justice. Over recent
years, however, there have been
significant statutory inroads into contempt.
Contempt of court defined and described
1.2
1.3
1.4
1.5
1.6
For the purposes of our review, it is convenient to identify different
types of contempt. The principal types of conduct
are contempt in the face
of the court, contempt outside the court (which includes publication
contempt), contempt by jurors,
contempt by disobeying court orders and
contempt by scandalising the court.1
Contempt in the face
of the court covers conduct that disrupts or is likely to disrupt court
proceedings, such as interrupting
the proceedings by words or actions,
insulting a judicial officer, juror or lawyer or, in the case of a witness,
refusing,
without justification, to be sworn or answer questions. Much of this
form of contempt is now in statutory form.2
Contempt outside
the court covers publication contempt, but also other conduct that interferes
or is likely to interfere with
the fair administration of justice, such
as actions interfering with or abusing court processes, including
interfering
with parties, judges, juries or witnesses. Publication contempt
covers publications that are prejudicial to a fair hearing
or publications
that prejudge issues in pending proceedings.3
Contempt by
jurors covers matters such as refusal to be sworn or give a verdict or
accessing information about a trial through
private research or discussing
the trial or jury deliberations with outside parties.
Contempt by
disobeying court judgments or orders and breaching undertakings given to a
court is self-explanatory. Whereas the other
types of contempt are viewed
as criminal contempts, historically this type has generally been classified
as civil contempt.
The Supreme Court has, however, decided there is no
relevant distinction between imprisonment for criminal and civil contempts,
and the protections for defendants in criminal contempt proceedings under
the New Zealand Bill of Rights Act 1990 (NZBORA)
should apply equally to
defendants in civil contempt proceedings.4 Aspects of this contempt
are now also in statutory form.5
1 See generally David Eady and ATH Smith Arlidge, Eady & Smith on Contempt (4th ed, Sweet & Maxwell, London, 2011); David Eady and ATH Smith Arlidge, Eady and Smith on Contempt: Second Cumulative Supplement to the Fourth Edition (Sweet & Maxwell, London, 2015); Laws of New Zealand Contempt of Court (online ed).
2 See below at [1.19].
3 Attorney-General v Times Newspapers Ltd [1974] AC 273 (HL). This decision was challenged in the European Court of Human Rights, which found the United Kingdom law of contempt of court as it was applied in that case to be a breach of the right to freedom of expression affirmed in Article 10 of the European Convention on Human Rights: Sunday Times v United Kingdom [1979] ECHR 1; (1979) 2 EHRR 245 (ECHR). The Contempt of Court Act 1981 (UK) was enacted subsequent to that decision.
4 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [57].
5 See below at [1.18(c)] and Appendix 1.
18 Law Commission Report
1.7
Scandalising the court covers conduct that brings a court into
disrepute, lowers a judge’s authority or interferes
with the lawful
process of the court, such as “scurrilous” abuse of the court,
attacks on the personal character
of a judge and allegations of bias or
partiality on the part of a judge or court.
The common law origins of contempt of court
1.8
1.9
New Zealand adopted contempt of court, originally part of the common
law of England, by virtue of the English Laws Act
1858. The English
judges who created the common law of contempt relied on the inherent
jurisdiction of the superior courts
to do so. The High Court has an inherent
jurisdiction to deal with matters that are necessary to administer the laws
of New Zealand.6
In New Zealand the common law authority of
the High Court under its inherent jurisdiction to punish for contempt is
preserved by:
(a) (b)
section 12 of the Senior Courts Act 2016, which confirms that the
inherent jurisdiction of the English High Court is retained by
the New Zealand
High Court;7
section 9 of the Crimes Act 1961, which
provides:
No one shall be convicted of any offence at common law, or of any offence
against any Act of the Parliament of England or the
Parliament of Great Britain
or the Parliament of the United Kingdom: provided that
and
(a)
nothing in this section shall limit or affect the power or
authority of the House of
Representatives or of any court to punish for contempt, ...
(c)
section 165(3) of the Senior Courts Act, which clarifies an express
contempt of court provision by providing:
1.10
1.11
Nothing in this section limits or affects any power or authority of a court
to punish any person for contempt of court in any case
to which this section
does not apply.
Section 9 of the Crimes Act is an important provision
because it recognises that the “power or authority of any
court”
to punish for contempt, including the High Court’s
common law authority under its inherent jurisdiction, is an exception
to the
rule that all criminal offences in New Zealand are statutory. The common law
inherent jurisdiction has survived the codification
of the criminal law and the
abolition of common law offences.8
In this context it is
important to recognise the distinctions between the substantive jurisdictions
and ancillary or procedural
powers of the different courts:
(a)
The High Court has an inherent substantive jurisdiction to hear and
determine a range of matters, including contempt of
court.9
6 The Senior Courts Act 2016, s 12, which came into force on 1 March 2017, replaced s 16 of the Judicature Act 1908.
7 The Senior Courts Act 2016, s 12(a) and (b).
8 See below at [1.57]–[1.63].
9 See McGechan on Procedure (online looseleaf ed, Thomson Reuters)
at [SC 12.02]; Sir Jack Jacob “The Inherent Jurisdiction of the
Court” (1970)
CLP 23; R Joseph “Inherent jurisdiction and inherent
powers in New Zealand” [2005] CanterLawRw 10; (2005) 11 Canta LR 220; and MR Ferrere “The
Inherent Jurisdiction and its Limits” (2013) 13 Otago LR 107.
Reforming the law of contempt of court: A modern statute 19
CHAPTER 1: Introduction
(b) (c)
Courts with substantive jurisdiction conferred solely by statute, such as the
District Court, do not have an inherent jurisdiction
but do have inherent
powers that are incidental or ancillary to their statutory
jurisdictions.10
The Supreme Court and the Court of
Appeal, which have statutory jurisdictions, do not have any inherent
jurisdiction as such.
Their contempt jurisdiction is therefore limited to any
relevant statutory powers such as those conferred by section 165 of the
Senior
Courts Act or, possibly, to exercising the powers of High Court Judges in their
capacities as judges of the High Court.11 With the repeal of section
35(4) of the Supreme Court Act 2003, which provided that the Supreme Court
had the same power and
authority as the High Court to punish for contempt,
the Supreme Court itself no longer has that express power and
authority.
We recommend in chapter 7 that any doubt about the contempt
powers of the Supreme Court and the Court of Appeal should
be avoided
by the enactment of new provisions making it clear that, at least in respect
of contempt of court, both appellate
courts have the same authority as the High
Court has under its inherent jurisdiction.12
1.12
1.13
1.14
1.15
The authority of the High Court to commit for contempt is
exercised under the inherent jurisdiction of that Court and
under any
statutory powers conferred expressly or by necessary implication on that
court.13
The power of the District Court to commit
for contempt is incidental or ancillary to its substantive statutory
jurisdiction
either because the power is conferred expressly by
statute,14 or because it is necessarily implied to enable the
Court to discharge its statutory jurisdiction effectively. As the Supreme
Court put it in Zaoui v Attorney-General:15
Courts which do not possess an inherent substantive jurisdiction (as is the
case where their substantive powers are entirely statutory)
nevertheless have
inherent or implied procedural powers necessary to enable them to give effect
to their statutory substantive
jurisdiction.
To avoid confusion between
the “authority” of the High Court under its inherent jurisdiction
and the “inherent”
or “implied” powers of statutory
courts under their statutory jurisdictions,16 we propose to describe
the common law contempt authority of the High Court as its “authority
under its inherent jurisdiction”
and the “inherent” or
“implied” ancillary power of the District Court as an
“implied power”.
In our view this reflects the differences between
the authority or power of the two Courts and recognises the more limited
nature of the implied powers under the statutory jurisdiction of the District
Court.17
In some areas of contempt (publication contempt,
common law contempt by jurors, and scandalising the court) the District
Court has no authority or power at all, express or implied. To address these
areas of contempt, the High Court’s inherent
jurisdiction extends to
upholding the authority of statutory courts and tribunals.18 Under
its inherent jurisdiction, subject to any
10 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [113]–[114].
11 Senior Courts Act 2016, ss 103 and 104.
12 See chapter 7 at [7.22] and R62.
13 As to the meaning of “necessary implication” see R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, [2003]
1 AC 563 at [45]; B v Auckland District Law Society [2003] UKPC 38, [2004] 1 NZLR 326 at [58]; and Cropp v Judicial Committee [2008] NZSC
46[2008] NZSC 46; , [2008] 3 NZLR 774 at [26].
14 For example, see District Court Act 2016, s 212.
15 Zaoui v Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577 (SC) at [35]. The Supreme Court was here considering the inherent jurisdiction more generally and in relation to the power to grant bail.
16 In some cases the courts have used the term “inherent powers” instead to refer to these, which can cause confusion with inherent jurisdiction.
See for example KLP v RSF [2009] NZFLR 833 (HC); McMenamin v Attorney-General [1985] 2 NZLR 274 (CA).
17 For example, see below at [2.2] and [7.4].
18 Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union
[1983] NZLR 612 (CA) at 616.
20 Law Commission Report
1.16
1.17
qualification by statute or statutory rule, the High Court has authority to
punish for contempt of a lower court’s processes
in order to enable that
court to act effectively as a court.19
In recent years the
High Court in New Zealand has exercised its common law authority under its
inherent jurisdiction to hold persons
in contempt of court in cases
involving:
. approaches by a Radio New Zealand reporter to
jurors from the trial of David Tamihere for
the murder of two Swedish tourists after the discovery of the body of
one of the tourists nearly a year after the trial;20
.
newspaper reports of the previous convictions and bail status
of a person charged with
further offences while on bail, which infringed the fair trial rights
of the person;21
. statements in a radio
interview by a plaintiff in a civil proceeding, criticising the
defendant;22
. attempts by a Member of
Parliament, TV3 and Radio New Zealand to influence the outcome
of a case before the Family Court by criticising the Court’s decision and attempts by the
Member of Parliament to persuade a party to give up the
case;23
. releasing material to the media
in breach of a court order;24
.
non-compliance with a High Court interim injunction requiring a
litigant in person not to
publish certain allegations against a chartered accountant and his
firm;25
. breaches of a pre-trial High
Court suppression order by publication of suppressed material
on a website by a person who was not a party in the criminal
proceeding;26
. publishing hyperlinks to a
spreadsheet on an overseas website from which EQC claimants
could download information in breach of a High Court injunction prohibiting
disclosure of the spreadsheet information;27
.
breach by a blogger of undertakings given to the District Court
to take down posts on his
website;28
. failures by company
directors and former directors to comply with court orders
requiring
company documents to be delivered up to liquidators;29
and
. an intemperate outburst by a member of
the public when a jury was delivering its
verdicts.30
Recent examples of High Court cases where
persons have been held not to be in contempt are:
.
newspaper publication of material sympathetic to a defendant,
published before his retrial;31
19 Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union, above n 18, at 616.
20 Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC). Discussed in chapter 4 at [4.58]–[4.64].
21 Solicitor-General v Wellington Newspapers Ltd [1995] 1 NZLR 45 (HC); Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 (CA).
22 Duff v Communicado Ltd [1996] 2 NZLR 89 (HC).
23 Solicitor-General v Smith [2004] 2 NZLR 540 (HC); Solicitor-General v Smith [2004] 2 NZLR 570 (HC) (penalty decision).
24 Solicitor-General v Miss Alice [2007] NZHC 48; [2007] 2 NZLR 783 (HC).
25 Siemer v Solicitor-General [2010], above n 4. Discussed in chapter 5 at [5.30].
26 Siemer v Solicitor-General [2011] NZHC 804; [2011] 3 NZLR 101 (HC); Siemer v Solicitor-General [2012] NZCA 188, [2012] 3 NZLR 43; and Siemer v Solicitor- General [2013], above n 10. Discussed in chapter 5 at [5.41].
27 Solicitor-General of New Zealand v Krieger [2014] NZHC 172 at [49]. Mr Krieger, by providing hyperlinks to the overseas websites, facilitated disclosure of the spreadsheet in breach of the court order. The Court considered that it did not matter that the websites were overseas, as the information was disclosed in New Zealand when EQC claimants downloaded it.
28 Blomfield v Slater [2015] NZHC 2239. Discussed in chapter 5 at [5.69].
29 Grant v Grewal [2016] NZHC 1564; Grant v Bhana [2016] NZHC 2755.
30 Forest v R [2016] NZHC 3198.
31 Solicitor-General v W & H Specialist Publications Ltd [2003]
3 NZLR 12 (HC).
Reforming the law of contempt of court: A modern statute 21
CHAPTER 1: Introduction
. a media and billboard campaign by a supermarket chain criticising another supermarket chain for appealing against a High Court decision overturning a local authority planning decision;32 and
. publication of newspaper articles relating to the Police search of training camps in the
Urewera and the seizure of military-style weapons in breach of District
Court suppression orders made at bail hearings and the
Crimes Act provision
relating to intercepted communications.33
Statutory incursions into the law of contempt of
court
1.18
New Zealand has retained the common law of contempt of court, but
over time it has also been replaced, modified or supplemented
in several
significant respects by various statutory provisions. The replacement
provisions are contained in:
(a)
(b) (c)
The Crimes Act with administration of justice offences such as
perjury,34 making false oaths,35 false statements or
declarations,36 fabricating evidence,37 conspiring to
bring false accusations,38 conspiring to defeat the
course of justice39 and corrupting juries and
witnesses.40
The Criminal Procedure Act 2011 with
offences for breaches of name and evidence suppression
orders.41
Particular statutes with specific provisions making
it an offence to breach or fail to comply with particular types of court orders
made under those statutes.42
1.19
The statutory provisions modifying or supplementing the common law
are:
(a) (b)
(c)
Specific provisions replacing in part the High Court’s common law
power to commit for contempt in the face of the
court.43
Specific provisions conferring limited jurisdiction
on other courts, particularly the District Court, to commit for contempt in
the face of the court and disobeying court judgments or
orders.44
Specific provisions in Court Rules relating to the
procedures for the enforcement of court judgments and
orders.45
1.20
As a result of the enactment of these various statutory provisions, the
law of contempt of court in New Zealand is now a mix of court
decisions based on
the common law inherent jurisdiction and on legislation, including powers
implied under that legislation.
32 Progressive Enterprises Ltd v North Shore City Council [2005] NZHC 1211; [2006] 2 NZLR 262 (HC).
33 Solicitor-General v Fairfax New Zealand Ltd HC Wellington CIV 2008-485-000705, 10 October 2008. Discussed in chapter 2 at [2.17]–[2.18].
34 Crimes Act 1961, ss 108 and 109.
35 Crimes Act 1961, s 110.
36 Crimes Act 1961, s 111.
37 Crimes Act 1961, s 113.
38 Crimes Act 1961, s 115.
39 Crimes Act 1961, s 116.
40 Crimes Act 1961, s 117.
41 Criminal Procedure Act 2011, s 211.
42 See Appendix 1.
43 Senior Courts Act 2016, s 165.
44 District Court Act 2016, ss 134, 135 and 212.
45 See High Court Rules, Part 17 and r 7.48; District Court Rules 2014,
Part 19 and rr 7.41 and 14.19.
22 Law Commission Report
Features of contempt
1.21
The principal distinguishing feature of the contempt jurisdiction is that
it is summary. This means contempt matters are dealt
with by a judge
alone, rather than a judge and jury, and sometimes by the judge
immediately on the spot. The summary
procedure allows prompt intervention
because judges need to be able to control their courtrooms. Ordinary
criminal processes
were historically regarded as too slow and
cumbersome to provide adequate protection for the administration of
justice. Describing the summary procedure, McGrath J
noted:46
[6]
[7]
Under the summary procedure, there is no preliminary inquiry,
committal procedure or requirement for an indictment.
Historically the judge
could take the initiative in the proceeding, determine the grounds of
complaint, identify witnesses and
inquire into what they had to say. The
judge would then determine guilt or innocence and the sentence to be
imposed. More
recently, when out of court conduct is involved, contempt
proceedings have been brought by a law officer, usually the
Solicitor-General.
Over the years, the summary process has come to
include the safeguards normally available to accused persons to protect their
rights
with the exception of the right to trial by jury.
1.22
1.23
1.24
1.25
1.26
Punitive measures for contempt of court were typically a fine or a
sentence of imprisonment. At common law, there was no limit
on the term of
imprisonment that a judge might impose. It could be for any finite
period determined by the judge or
for an indeterminate period, ending
only when the person held to be in contempt apologised and purged their
contempt by
complying with the relevant order of the court.
At common
law there was no right of appeal in cases of criminal contempt, but that
omission was rectified by legislative amendment.47
Currently,
because contempt is summary, the maximum penalty that may be imposed must
be less than two years’ imprisonment.48 A person charged with
an offence punishable by imprisonment of two years or more has a right under
NZBORA to a jury trial.49
Traditionally, forms of contempt
were either criminal or civil, depending on their purpose. Conduct
requiring punishment
for undermining the administration of justice was
criminal contempt, while civil contempt was reserved for situations involving
enforcement of compliance with a court order or judgment in a civil action.
As discussed in chapter 7, that distinction is
less relevant
today.
Unlike other conduct resulting in criminal penalties,
criminal contempt cases receive a civil file number in the court system
because they are commenced by way of an originating or interlocutory
application. There is no formal charge or plea, and
convictions are not
recorded on the offender’s criminal record. Proceedings are generally
brought by Crown counsel
in the name of the Solicitor-General, rather than
by the Police Prosecution Service. For some forms of contempt, the Court may
also
act on its own initiative.
46 Siemer v Solicitor-General [2010], above n 4.
47 Criminal Procedure Act 2011, pt 6, subpt 5.
48 Siemer v Solicitor-General [2010], above n 4.
49 New Zealand Bill of Rights Act 1990, s 24(e).
Reforming the law of contempt of court: A modern statute 23
CHAPTER 1: Introduction
WHY IS CONTEMPT OF COURT IMPORTANT?
1.27
1.28
1.29
1.30
1.31
Public confidence in the justice system is essential for the courts to
uphold the rule of law and ensure the fair administration
of justice. Contempt
of court plays a crucial role in protecting the justice system and public
confidence in its fair, expeditious
and cost effective
administration.
Some of the ways in which the authority,
independence and impartiality of courts may be undermined – or held in
contempt
– are more obvious than others. For example, courts cannot
operate effectively if people behave abusively in court or disobey
a
judge’s lawful instructions. In the same way, people who are
brought before the courts on a criminal charge
cannot be assured of
their fundamental right to a fair trial if, as a result of a prejudicial media
campaign, a fair trial is
put at risk.
But there are also more subtle
ways of interfering with a court’s ability to uphold the rule of law.
For example, if judges
are subjected to overt or covert bullying or pressure
from politicians not observing the principle of comity between the different
branches of government,50 or from others, then people may call
judges’ independence, integrity and impartiality into question.
Similarly, people
such as lobbyists or social media bloggers may subject
a judge to personal ridicule or threats in which case, arguably,
the
judge’s ability to adjudicate without fear or favour may be compromised
or may be seen to be compromised.
Although the ways in which people
may commit contempt differ considerably, they all have in common a tendency
to undermine
the administration of justice. Contempt safeguards the
administration of justice.
The administration of justice depends on
unhindered access to courts which, under our constitutional
arrangements,
are separate from the executive and legislative branches
of government. We require courts to provide fair and expeditious
hearings
before impartial judges and juries. New Zealanders expect:
(a) (b)
(c)
(d)
impartial courts will hear and determine court proceedings, both criminal
and civil;51
juries will base their verdicts only on facts
proved by properly adduced evidence, able to be tested in court, and reached
after
free, frank and confidential discussions, and the finality of verdicts,
subject to appeals and legal challenges, will be
protected;52
bearing in mind the costs to the country and
the parties as well as the volume of cases, courts will hear and determine
individual
cases as expeditiously and efficiently as possible;53
and
except in unusual circumstances, proceedings will be open to
the public and news media.54
1.32
To achieve these outcomes, courts need the authority or power to make and
enforce appropriate orders and sanctions such as pre-trial
suppression orders
or orders prohibiting the publication of prejudicial reports about a case
before it is heard. It is well-established
that a defendant’s
right
50 The principle of comity between the various branches of government means that each branch (the legislative, executive and judicial) should recognise and respect the functions the others perform in our constitutional arrangements and try not to do anything that may improperly interfere with those functions.
51 New Zealand Bill of Rights Act 1990, ss 25 and 27.
52 Discussed in chapter 4 at [4.5]–[4.10].
53 For example see High Court Rules, r 1.2, which provides that “[t]he objective of these rules is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”.
54 The New Zealand Bill of Rights Act 1990, s 25(a) and the Criminal
Procedure Act 2011, s 196(1) give statutory recognition to
this presumption that
court hearings will be open. See also Erceg v Erceg (as trustees of Acorn
Foundation Trust) [2016] NZSC 135 at [2]; Y v Attorney-General [2016]
NZCA 474, [2016] NZAR 1512 at [25]–[29].
24 Law Commission Report
1.33
1.34
1.35
1.36
to a fair trial, affirmed by NZBORA, may justify orders of this nature
taking priority over the right to freedom of
expression.55
The effective and expeditious enforcement of
court orders and undertakings is in the public interest. This reflects a
public
expectation that those who ignore court orders will be brought to account
quickly.56 The ultimate sanction may be imprisonment.
Courts
maintain public confidence in the justice system by ensuring they hear and
determine proceedings, civil and criminal, impartially
and without disruption.
Courts should also be able to enforce their judgments and orders and deal
with false and egregious
attacks on them or the judiciary. Public
confidence in the judiciary needs to be maintained because the general
acceptance
of judicial decisions, by the public and governments, is
essential for the peace, welfare and good government of the
country.57
It is important to emphasise, however, that,
contrary to some public perceptions, contempt of court is not concerned with
archaic
deference to the court or with protecting the feelings of
individual judges. What is in issue is the safekeeping of an
impartial and
effective system of justice.58 As Eichelbaum CJ and Greig J put it
in Solicitor-General v Radio New Zealand:59
... the objective of the law of contempt is not to shield the
judiciary or the judicial system from criticism. Least of all
is it a matter
of protecting the decision of the Judge or the jury in an individual case from
appropriate comment. It is justice
itself that is flouted by contempt of
Court, not the individual Court or Judge attempting to administer it
...
By protecting the administration of justice and maintaining public
confidence in the justice system, contempt of court plays
a crucial role in
our justice system.
WHY LAW REFORM IS NEEDED
1.37
No-one has seriously called for the abolition of the law of contempt of
court, but at the same time there have for many years
been suggestions
that the law is outdated and confusing and should be clarified and
modernised.60 There have also been suggestions it should be
completely, or at least substantially, codified in statutory form and the power
to
punish for contempt under the inherent jurisdiction
abolished.61
Problems and issues with contempt of court
1.38
These calls for reform reflect a number of significant problems and issues
with the accessibility, understandability and workability
of the law
today.
55 Siemer v Solicitor-General [2010], above n 4, at [37]; and Siemer v Solicitor-General [2013], above n 10, at [158].
56 Siemer v Solicitor-General [2010], above n 4, at [26]–[27].
57 Murray Gleeson “Public Confidence in the Judiciary” (2002) 76 ALJ 558 at 560; and James Plunkett “The role of the Attorney-General in defending the judiciary” (2010) 19 JJA 160 at 162.
58 See Solicitor-General v Radio New Zealand Ltd, above n 20, at 53; Solicitor-General v Wellington Newspapers Ltd, above n 21, at 47 (upheld by CA); Siemer v Solicitor-General [2010], above n 4, at [27]; R v Cara [2005] 1 NZLR 823 (HC) at [13]; Blomfield v Slater, above n 28, at [47]; N v M [2014] NZHC 239 at [29]; Queen Elizabeth the Second National Trust v Netherland Holdings Ltd [2014] NZHC 1094, [2015] NZAR 1815 at [22]–[24]; and Re Swaptronics [1998] All ER (D) 407 (Ch) at [20].
59 Solicitor-General v Radio New Zealand, above n 20, at 53.
60 Lord Phillimore Report of the Committee on Contempt of Court (House of Commons, Cmnd 5794, December 1974); Law Reform Commission of Canada Contempt of Court (LRCC Report 17, 1982); Australian Law Reform Commission Contempt (ALRC Report 35, 1987); and Law Reform Commission of Western Australia Report on Review of the Law of Contempt (LRWA, PN 93, 2003); and Siemer v Solicitor-General [2009] NZCA
62[2009] NZCA 62; , [2009] 2 NZLR 556 at [116].
61 Law Reform Commission of Canada, above n 60; Australian Law Reform Commission, above n 60; and Law Reform Commission of Western
Australia, above n 60.
Reforming the law of contempt of court: A modern statute 25
CHAPTER 1: Introduction
Accessibility
1.39
1.40
The rule of law means a country’s citizens should be able to
ascertain its laws, particularly if a breach of those laws could
result in a
prison sentence or significant fine.62 The common law of contempt,
being judge-made and therefore contained in individual court decisions, is not
always easy for the public
to find or necessarily understand. Since ignorance of
the law is no defence in a contempt proceeding, people should have an
opportunity
to know what the law requires. It is difficult to see why these
laws should not be in a statute.
At the same time, it needs to be
recognised that while expressing contempt law in legislative form will
assist its credibility,
there will still be limits on how precisely legal
obligations are able to be expressed. Legislation will need to state principles
in relatively broad terms and leave their application to be resolved in the
context of particular situations. For example, contempt
law needs to
accommodate freedom of expression values as far as
possible.63
Understandability
1.41
1.42
1.43
1.44
1.45
The nature and scope of the different types of conduct constituting
contempt at common law is uncertain. There are uncertainties
over the
remaining differences between criminal and civil contempt, the authority of
the High Court under its inherent jurisdiction
and the implied powers of
other courts to punish contempt summarily and the adequacy of the
processes for doing so. There
is also a lack of certainty as to what conduct
actually amounts to committing contempt and the requisite mental element in
respect of that behaviour.
Given the criminal nature of most
contempt, it is important members of the public know what behaviour is
unacceptable and
what the consequences of such behaviour may be. It is
problematic, therefore, that the scope of contempt remains unclear.
The
relationship between various statutory provisions that Parliament has enacted
in place of contempt and the remaining common
law is also not as clear as it
should be. There is some uncertainty whether provisions such as those in
the Criminal Procedure
Act, making it an offence for any person to breach
a suppression order made under that Act have replaced the common law
contempt of disobeying this type of court order or whether such conduct
could alternatively be proceeded against as a contempt
of court.
There
are currently various statutory provisions of this kind dealing with
conduct that was previously dealt with by the
common law of contempt.
These provisions do not all expressly state whether they are in
substitution for the common law,
and it can be difficult to assess whether
they have replaced it. In Solicitor-General v Fairfax New Zealand Ltd,
a Full Court of the High Court considered that breaches of suppression
orders should have been pursued as criminal charges
under the relevant
statutory offence provisions rather than as common law contempt.64
On the other hand, a recent English case has taken the view the fact
that conduct was also covered by a statutory offence was
not a barrier to
prosecuting that conduct also as common law contempt.65
The
interrelationship between common law contempt and statutory provisions
continues to cause difficulties. We could clarify
the position more
easily by statute than by relying on incremental rulings of appellate
courts.
62 See Tom Bingham The Rule of Law (Penguin, London, 2011) at ch 3.
63 Gisborne Herald Co Ltd v Solicitor-General, above n 21, at 574; and Siemer v Solicitor-General [2013], above n 10, at [158].
64 Solicitor-General v Fairfax New Zealand Ltd, above n 33, at [135]–[138]; see also chapter 2 at [2.17] and chapter 5 at [5.43].
65 Solicitor-General v Cox [2016] EWHC 1241 (QB), [2016] 2 Cr App R
15 at [31]; see also chapter 2 at [2.18] and chapter 5 at [5.44].
26 Law Commission Report
1.46
1.47
1.48
The antiquated language and technical legal meaning of several expressions
used in the law of contempt create further problems today:
.
The ordinary modern meaning of contempt is “a feeling that a
person or a thing is beneath
consideration or worthless, or deserving scorn or extreme
reproach”.66 The technical legal meaning of contempt of
court is “anything which plainly tends to create a disregard of the
authority
of Courts of justice; as the open insult or resistance to the Judges
who preside there, or disobedience to their
orders”.67
. The ordinary modern meaning
of “in the face of” is “despite” or
“confronted by”.68 The
technical legal meaning of “contempt in the face of the court”
is “some form of misconduct in the course of proceedings,
either within
the court itself or, at least, directly connected with what is happening in
court”.69 Another definition is “any word spoken or
act done, in or in the precincts of the Court, which obstructs or interferes
with the due administration of justice or is calculated to do
so”.70
. The ordinary modern meaning
of “to scandalise” is to “offend the moral
feelings,
sensibilities, etc, of; shock”.71 The technical legal
meaning of “scandalising the court” is “something published
which was calculated to
lower the authority of a Judge and the
Court”.72
With the differences between the ordinary
modern meanings of these expressions and their technical legal meanings,
the
time has come for the old jargon of the law to be replaced with
understandable modern language.
Some have also called for the
historical forms of legal contempt, such as scandalising, to be
abolished.73
Workability
1.49
1.50
In several significant respects the law is no longer working adequately.
In particular, it has not kept pace with the digital
age. By the digital age we
mean the growth of the internet with its websites and social media platforms
and their widespread
use in New Zealand to record, report, obtain, communicate
and share information, opinions and comments of all types. It is not
an
exaggeration to suggest the advent of the digital age has had and will
undoubtedly continue to have profound effects on the
practical application of
the law of contempt of court. These effects were simply unforeseeable when the
courts developed the common
law and when Parliament enacted many of the
relevant statutory provisions.
The digital age now
sees:74
. 3.1 million New Zealanders aged over 10
personally owning a mobile device;
. 79 per cent of
New Zealand households connected to the internet;
. 3.4
million New Zealanders using the internet every week;
66 Tony Deverson and Graeme Kennedy (eds) New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 234.
67 Peter Spiller Butterworths New Zealand Law Dictionary (6th ed, LexisNexis NZ, Wellington, 2005) at 62.
68 New Zealand Oxford Dictionary, above n 66, at 379.
69 Eady and Smith Arlidge, Eady and Smith on Contempt, above n 1, at [10-2].
70 Laws of New Zealand Contempt of Court (online ed) at [8].
71 New Zealand Oxford Dictionary, above n 66, at 1005.
72 Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA) at 231.
73 We discuss this in chapter 6 at [6.37].
74 The Nielsen Company Media Trends 2016: How New Zealanders consume newspapers, magazines, TV, radio and digital content (The Nielsen
Company, 2016).
Reforming the law of contempt of court: A modern statute 27
CHAPTER 1: Introduction
. 88 per cent of online New Zealanders visiting social media every month (75 per cent Facebook, 61 per cent YouTube, 23 per cent Google, 20 per cent LinkedIn, 20 per cent Instagram); and
. 25 per cent of online New Zealanders subscribing to
digital content.
1.51
1.52
1.53
1.54
The ready availability of vast amounts of information online means that
anyone is now able to obtain detailed information
about people, places,
events and issues involved in court cases. That information together with
opinions or comments, both
informed and uninformed, can be disseminated to the
world instantaneously, permanently, and directly or indirectly.
These
developments have had a significant impact on the law of contempt of court. For
example:
. the media and other interested people, such as
bloggers, are able to obtain information about
a defendant’s previous convictions and publish the information
online;
. there have been breaches of District Court
name suppression orders by a blogger;75
.
jurors are able to google information about issues in criminal
trials and take the information
into account in reaching their verdicts;76
.
there has been Facebook criticism of
judges;77
. a juror has posted on
Facebook;78 and
. mobile phone
cameras have been used in court.79
Practical
difficulties also arise when a court order requires a publisher
to take down objectionable material
from an online site. In the
absence of a reputable server it can be especially difficult to require
the publisher
to comply. In a recent case a party ordered by the court
to take down material simply transferred the material
to another
website on a server located outside New Zealand, which remains active more
than six months later.80 When material is located on overseas
websites but accessible in New Zealand, jurisdictional issues can also arise for
the courts
and enforcement agencies.81
Courts need adequate
and up-to-date powers to address these problems, especially when a
defendant’s right to a fair
trial may be prejudiced.
Jurisdiction issues
1.55
1.56
While, as we discussed in [1.8] to [1.15], there is no question the High
Court has authority under its inherent jurisdiction
to deal with all forms of
contempt, people have sometimes been confused over the extent to which the
implied powers of courts
created by statute enable those courts to address
some forms of contempt.
Currently, as we have discussed, the High
Court’s protective jurisdiction fills any perceived jurisdictional
“gap”
in this area. Where the High Court possesses inherent
jurisdiction to do
75 Police v Slater [2011] DCR 6 (DC); Slater v New Zealand Police HC Auckland CRI 2010-404-379, 8 July 2011; Slater v R [2011] NZCA 568.
76 Attorney-General v Dallas [2012] EWHC 156 (Admin); Dallas v United Kingdom (2016) 63 EHRR 13 (ECHR). Discussed at [4.17] and n 321 below.
77 R v Bonacci [2015] VSC 121; La Rue v Ministry of Justice Collections Unit [2016] NZHC 666.
78 Attorney-General v Davey [2013] EWHC 2317 (Admin).
79 Solicitor-General v Cox, above n 65.
80 Blomfield v Owner and/or Administrators of www.laudafinem.com [2016] NZHC 2425.
81 See Law Commission Extradition and Mutual Assistance in Criminal
Matters (NZLC, IP 37, 2014) and Law Commission Modernising New
Zealand’s Extradition and Mutual Assistance Laws (NZLC, R137, 2016)
for a discussion on some of the issues that arise under the Mutual
Assistance in Criminal Matters Act
1992.
28 Law Commission Report
something that cannot be done by a District Court, the High Court may use
its powers in aid of the District Court.82
Codification of the law
1.57
1.58
1.59
1.60
1.61
1.62
1.63
A related issue is whether, in a modern democracy, the authority or power
to punish people by imprisonment or by a fine should
be authorised by
legislation rather than being left to the judges who exercise the power. Would
the law have greater democratic legitimacy
if Parliament made
it?
Contempt is now the only conduct where criminal punishment may be
imposed in New Zealand without the authority of statute. When
the Criminal
Code Act 1893 codified the general criminal law of New Zealand,
Parliament decided, as a matter of principle,
that the scope of the criminal
law is a matter for Parliament rather than the courts. The Criminal Code
Act 1893 did not,
however, expressly mention or exclude the law of
contempt. Instead, it contained a provision stating:83
Every one who is a party to any crime or misdemeanour shall be proceeded
against under some provision of this Act, or under
some provision of some
statute not inconsistent therewith and not repealed, and shall not be
proceeded against at common
law.
On the face of it this provision and
its successor in the Crimes Act 190884 abolished the common law
contempt jurisdiction. But the then Supreme Court did not agree. In
Attorney-General v Blomfield a majority of the Full Court of the
then Supreme Court decided the common law jurisdiction to commit for
contempt survived.85
In accordance with the interpretation
favoured by the courts, Parliament added a proviso in
1961 to the relevant section, stating:86
[N]othing in this section shall limit or affect the power or authority of the
House of Representatives or of any court to punish
for
contempt.
Consequently, the authority of the High Court under its
inherent jurisdiction to punish for contempt at common law remains
in
existence alongside the offences in the Crimes Act and other statutes.
Rosara Joseph notes that “the earliest
legal history shows that
courts have assumed the power to punish those who obstruct the
administration of justice”.87 The High Court’s
inherent authority to punish contempt is part of the remaining vestige of the
historical power of the sovereign
to punish by committal to prison.88
Its origins pre-date the creation of a representative Parliament in
England and later in New Zealand.
Codifying the law of contempt today
would therefore bring contempt into line with every other criminal offence in
New Zealand.
From a constitutional perspective, replacing the current
common law contempt with statutory offences would also enable the
public
to have its say on the shape of the contempt laws and the values the laws
should embody today. If Parliament votes
on the contempt laws,
this
82 Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union, above n 18, at 616.
83 Criminal Code Act 1893, s 6.
84 The Crimes Act 1908 contained a similar provision (section 5), though the words “any crime or misdemeanour” were replaced by “any offence”, which was defined in section 2 as including “any act or omission for which any one can be punished, either on indictment or summary process”.
85 Attorney-General v Blomfield [1913] NZGazLawRp 241; (1913) 33 NZLR 545 (SC) per Stout CJ at 555–556, Williams J at 561, and Denniston J at 564–565. See also: Nash v Nash, In re Cobb [1924] NZGazLawRp 3; [1924] NZLR 495 (SC) at 498 per Salmond J; In re Gregory [1940] NZLR 983 (SC); Attorney-General v Blundell [1942] NZLR
287 (SC); Siemer v Solicitor-General [2010], above n 4, at [60]–[63].
86 Crimes Act 1961, s 9; discussed above at [1.9].
87 Joseph, above n 9, at 228.
88 For a full historical account, see Eady and Smith Arlidge, Eady
and Smith on Contempt, above n 1, at ch 1.
Reforming the law of contempt of court: A modern statute 29
CHAPTER 1: Introduction
should encourage public acceptance of the laws and may, ultimately, give
rise to greater public confidence in the administration
of justice.
Other relevant developments
1.64
Other relevant developments have also highlighted problems with the law of
contempt in recent years. These include the greater recognition
of freedom of
expression and open justice, the focus on the costs of the justice system,
reforms in overseas jurisdictions and New
Zealand appellate court
decisions.
Freedom of expression
1.65
1.66
1.67
1.68
The right to freedom of expression is well-established, but with its
affirmation in section 14 of NZBORA in 1990 there is greater
recognition of
its significance generally and in the context of the law of contempt
specifically.89 This has led to understandable media concerns about
the chilling effect of contempt of court on reporting court proceedings
and criticisms of judges because of the uncertainties in the
law.90
At the same time, however, the Supreme Court has
made it clear that the power of the High Court to hold those who disobey court
orders in contempt, when exercised in accordance with established principles,
is a justified limitation on the right to freedom
of
expression.91
The digital age has also brought challenges for
freedom of expression. These challenges are well described in Ash Free
Speech: Ten Principles for a Connected World:92
Television, the internet and social media have both magnified and
dramatised the tensions between free speech and fair trial.
Occasionally, they
have helpfully revealed jurors’ prejudices that undoubtedly existed in
earlier times....
The main question, though, is whether the tropical storms of publicity
around cases involving well known people and sensational
circumstances make
it more difficult to achieve a fair trial.
The importance of responsible
media that know where the line between freedom of expression and contempt is
drawn has perhaps never
been greater.93 Burrows and Cheer: Media
Law in New Zealand observes:94
It is fundamental that, in the absence of a suppression order, the media
can fully report proceedings at a public trial. However,
this protection
extends only to a fair and accurate report. If the report is seriously
inaccurate, and if a juror or witness
reading it could be misled by it, this
could be a contempt.
The public’s expectation the media will act
responsibly when exercising freedom of expression rights is reinforced by the
standards in the various codes of conduct adopted for the
media.95
89 Siemer v Solicitor-General [2013], above n 10, at [20]; Solicitor-General v Fairfax New Zealand Ltd, above n 33, at [78]; Progressive Enterprises Ltd v North Shore City Council, above n 32, at [17]; Bouwer v Allied Press Ltd [2001] NZCA 131; (2001) 19 CRNZ 119 (CA) at [7]; Gisborne Herald Co Ltd v Solicitor- General, above n 21, at 571 and 575.
90 Ursula Cheer Burrows and Cheer: Media Law in New Zealand (7th ed, LexisNexis, Wellington 2015) at ch 9.
91 Siemer v Solicitor-General [2010], above n 4, at [24]–[25]; Siemer v Solicitor-General [2013], above n 10, at [158]–[159] and [229].
92 Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (Yale University Press, New Haven, 2016) at 297.
93 Siemer v Solicitor-General [2013], above n 10, at [173].
94 Cheer, above n 90, at 589.
95 Cheer, above n 90, at ch 14; Broadcasting Standards Authority
Broadcasting Standards in New Zealand Codebook <www.bsa.govt.nz>; New Zealand Press Council
Statement of Principles <www.presscouncil.org.nz>.
30 Law Commission Report
The importance of open justice
1.69
The community has an interest in court proceedings being open to the
public.96 The media have a role in attending as surrogates of
the public and reporting on proceedings. Freedom of the media as a vehicle
for comment on public issues is fundamental to our constitutional
democracy.97 Section 14 of NZBORA expresses the right to
freedom of expression in terms of the right to “seek, receive and impart
information
and opinions”. This right to seek information protects open
justice. It is often this aspect of open justice, implicit
in freedom of
expression, which weighs more strongly in favour of the media and others
reporting on court proceedings than
other aspects of freedom of expression.
At the same time, courts have recognised the fair trial rights of a
defendant
in a criminal trial may sometimes require an exception to the
presumption of open justice.98
The focus on the costs of the justice system
1.70
The justice system in New Zealand is expensive.99 It is
therefore important to ensure cases are heard efficiently, expeditiously and
without undue delay or interruption. The law
of contempt has a significant
role to play in achieving these crucial outcomes and in avoiding the significant
costs inevitably
involved in abandoned trials.100
Overseas reforms
1.71
1.72
1.73
1.74
A number of overseas jurisdictions have reviewed the common law of
contempt and enacted a range of measures to clarify the law.
It is significant
that reforms in other jurisdictions have tended to focus on specific
aspects of the law rather than
attempting full codification. For instance,
in England and Wales the Contempt of Court Act 1981 only modified the
way
in which the common law relating to strict liability operated, and the
Criminal Courts and Justice Act 2015 only created new
offences relating to
juror contempt in the form of amendments to the Juries Act
1974.101
In Australia, there are variations in the way
in which contempt fits into the framework of criminal law in the states
and territories.102 Australia has partially codified its criminal
law, but both statutory and common law offences, including contempt of court,
continue
to exist outside the statutes.
In Canada, contempt of court
is the only surviving common law offence. In 1982, the Law Reform
Commission of Canada
published a report proposing to abolish the common
law of contempt and replace it with four new offences to be incorporated
into the Criminal Code.103
This proposal has not, however,
been implemented.
In Ireland, the law of contempt is almost
entirely governed by common law. In 1994, a report by the Irish Law
Reform
Commission recommended that some statutory offences should be
introduced to replace the existing common law. Those
recommendations were not
96 L v R [2015] NZCA 279, [2016] 2 NZLR 21 at [24].
97 Gisborne Herald Co Ltd v Solicitor-General, above n 21, at 571.
98 Siemer v Solicitor-General [2013], above n 10, at [158]–[159]; L v R, above n 96, at [25].
99 The Ministry of Justice’s Annual Report for the year ending 30 June 2015 shows a total expenditure on courts of $436,820,000. Operating costs included $6,320,000 for juror fees and expenses.
100 See chapter 2 below at [2.7].
101 See ATH Smith “Repositioning the law of contempt: the Criminal Justice and Courts Act 2015” [2015] Crim L Rev 845 at 849.
102 David Barker Essential Australian Law (2nd ed, Cavendish Publishing, Sydney, 2005). See Law Commission of England and Wales Contempt of
Court – A consultation paper (LC, CP209, 2012) at Appendix C: Contempt in overseas jurisdictions.
103 The four proposed offences were: disruption of judicial proceedings,
defiance of judicial authority, affront to judicial
authority and interference
with judicial proceedings. Law Reform Commission of Canada, above n 60, at
21–31.
Reforming the law of contempt of court: A modern statute 31
CHAPTER 1: Introduction
implemented, but the courts have continued to reiterate the need for
reform.104 In June 2016, the Commission published an issues paper
on contempt of court.105 The Commissioner responsible for the
project has advised us that the Irish Law Reform Commission is actively
considering
the submissions it received on the issues paper and carrying
out follow-up consultation with interested parties. The Commission
intends to
complete work and publish its report by the end of 2017.
New Zealand appellate court decisions
1.75
In 2009, the Court of Appeal commented on the difficulties of reconciling some aspects of the law of contempt with NZBORA, suggesting “consideration should be given to legislative reform in this area of the law as happened in the United Kingdom”.106 Since then two Supreme Court decisions involving Mr Siemer have clarified several aspects of the law of contempt. These two cases, because of their significance, are discussed in some detail in our Report. In the first case Mr Siemer, who had been held in contempt for breaching a court order, argued unsuccessfully that he had a right to elect trial by jury.107 In the second case, Mr Siemer appealed unsuccessfully a finding of contempt by challenging the validity of the suppression order he had been found in contempt for breaching.108 For completeness, we note that Mr Siemer has now been declared a vexatious litigant.109
OUR REVIEW
The Terms of Reference
1.76
1.77
1.78
In 2013, the then Minister Responsible for the Law Commission, Hon Judith
Collins, asked the Law Commission to undertake a first
principles review of
the law of contempt and to make recommendations to ensure the law was
appropriate for modern New Zealand.
The Terms of Reference
specifically asked the Commission to consider whether the common law of
contempt should be amended or
replaced by statutory provisions and, in
particular, asked for an examination of:
. contempt by
publication, including the dissemination of information by members of
the
public via social media;
. juror
contempt;
. the contempt known as “scandalising
the court”;
. civil contempt and enforcement of
court orders; and
. other contempts relating to
interference with the administration of justice.
In conducting this
review, the Commission was to take into account:
. the
rights and freedoms recognised in NZBORA;
. the
development of the internet and new media; and
104 Irish Bank Resolution Corp Ltd v Quinn [2012] IESC 51 at [32] per Hardiman J dissenting.
105 Law Reform Commission of Ireland Contempt of Court and Other Offences and Torts involving the Administration of Justice (LRC IP 10, 2016)
available at <www.lawreform.ie>.
106 Siemer v Solicitor-General, above n 60, at [116].
107 Siemer v Solicitor-General [2010], above n 4 [‘the first Siemer case’]. This is discussed in further detail in chapter 5 at [5.30]–[5.34]
108 Siemer v Solicitor-General [2013], above n 10 [‘the second Siemer case’]. This is discussed in further detail in chapter 2 at [2.36]‒[2.38].
109 Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411
(leave to appeal to Supreme Court declined: [2016] NZSC 75).
32 Law Commission Report
. the need for the laws of New Zealand to be understandable and as
accessible to the public as possible.
Conduct of the review
1.79
The Commission began work on the reference in 2013. In doing so, it had the
benefit of:
(a) (b)
(c)
Dr Julie Maxton’s Auckland University 1990 doctoral thesis on the law
of contempt which described the history and development
of the law and
identified issues and problems with it.110
Professor ATH
Smith’s 2011 discussion paper prepared for the Attorney-General which
provided a complete overview of
the current law and raised a number of
questions about reform of aspects of the law.111
Discussion
papers and reports prepared by overseas law reform agencies over recent years
providing an overview of the law in
comparable jurisdictions and
recommendations for reform.112
1.80
1.81
1.82
1.83
In May 2014, the Commission produced an Issues Paper Contempt
in Modern New Zealand, which outlined the Commission’s proposals
for modernisation and reform. The Commission invited public submissions
and
comments on the Issues Paper, with the period for submissions closing at the
end of August 2014. The Commission received 26
formal submissions, including
submissions from the law societies, some media organisations, interested
academics and students,
the Police and the Crown Law Office and comments
from the Chief District Court Judge.
Following the consultation
period, the Commission undertook targeted discussion with members of
the judiciary, the
Crown Law Office and a number of academics with a
view to settling policy and completing a report that would include
a
draft Bill by March 2015. Parliamentary Counsel prepared a draft Bill for the
Commission during this period.
Due to the Government prioritising
other Commission work, the contempt reference was put on hold at the
end of 2014.
In February 2016, work recommenced under the lead of a new
Commissioner, as the Commissioners previously involved in
the project had
left the Commission.
Because of the delays in completing our
Report and the changes in Commissioners, the Commission made some changes
in
its approach to some of the issues raised by this reference. During 2016 we
therefore referred a preliminary draft of our Report
to a group of independent
reviewers: Emeritus Professor John Burrows QC, Bruce Gray QC, Dr David
Harvey, Director of the New
Zealand Centre for Information and Communication
Technology Law, the Hon Sir John McGrath, retired Supreme Court Judge, and
Professor ATH Smith of Victoria University of Wellington. We also referred
the draft Report to the Heads of Bench,113 the Solicitor-General,
Ministry of Justice officials, the Judicial Conduct Commissioner and
representatives of the defence
bar for their comments, and we had further
meetings with the Solicitor-General, the Deputy Solicitor-General (Criminal)
and
the Police.
110 Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990).
111 ATH Smith Reforming the New Zealand Law of Contempt: An Issues/Discussion Paper (Crown Law Office, April 2011).
112 Australian Law Reform Commission, above n 60; Law Reform Commission of Western Australia, above n 60; Law Reform Commission of Ireland, above n 105; Law Commission of England and Wales Contempt of Court: Scandalising the Court (LawCom No 335, 2012); Law Commission of England and Wales Contempt of Court: Juror misconduct and internet publications (Law Com No 340, 2013); and Law Commission of England and Wales Contempt of Court: Court Reporting (Law Com No 344, 2014).
113 The Chief Justice of New Zealand, the President of the Court of
Appeal, the Chief High Court Judge and the Chief District
Court Judge.
Reforming the law of contempt of court: A modern statute 33
CHAPTER 1: Introduction
1.84
1.85
The Commission received valuable comments from everyone who reviewed
our draft Report. These have been taken into account
by the Commission
in making its policy decisions and recommendations and in finalising this
Report.
We reengaged Parliamentary Counsel to assist with drafting a
new Administration of Justice
(Reform of Contempt of Court) Bill.
Our principal recommendation: an Administration of Justice (Reform of
Contempt of Court) Act
1.86
1.87
1.88
1.89
1.90
1.91
1.92
The Commission has concluded that the common law and existing statutory
contempt of court provisions should be replaced by a new
Act.
As
discussed above, the common law is outdated and confusing and there are
a number of problems only legislation can address.
It is unrealistic and also
inefficient to leave the courts to clarify the law incrementally. The Commission
considers that a new
Administration of Justice (Reform of Contempt of Court)
Act is necessary to clarify and modernise the law.
Our conclusion has in
part been driven by the following general principles:
. In
accordance with the rule of law, it is desirable that the laws of New Zealand be
as clear and
accessible to the country’s citizens as possible. This includes
modernising language where appropriate.
. Parliamentary
authority for all criminal offences is desirable from a
constitutional
perspective.
. Whether in statute or common
law, we cannot always achieve certainty and predictability in
areas of law where judgement must be exercised between competing
values.
. The courts retain the confidence of the
community by being able to do their work through
appropriate processes and by ensuring independent, fair and impartial
adjudication.
A new Act would resolve current uncertainties over
what conduct constitutes contempt at common law. Legislation would make
the
law in this area as clear as possible and much more accessible to those it is
likely to affect. A new Act would also address
the jurisdictional issues
discussed earlier.114 It would abolish antiquated forms of contempt
and modernise the language and procedures applying to contempt of
court.
Arguably legislation also gives greater constitutional legitimacy
to the law because the legislative process enables the public
to have its
say on the shape of the law and the values the laws embody.
In
our Report we propose a substantial but partial codification of the law.
The Commission favours retaining the High Court’s
common law inherent
jurisdiction to address matters not otherwise covered by the proposed new
statutory provisions. Contempt
is an area of law where we cannot always
achieve certainty and predictability. We need some continued flexibility
which
the Court’s inherent jurisdiction can provide. The new
Administration of Justice (Reform of Contempt of Court)
Act would, however,
clarify the interrelationship between the High Court’s remaining common
law contempt and the new statutory
provisions.
In considering statutory
reform options, we have also assessed our recommendations carefully in an
endeavour to ensure they are
economically sound and are unlikely to have
unintended consequences.
114 See above at [1.55]‒[1.56].
34 Law Commission Report
1.93
1.94
A draft Administration of Justice (Reform of Contempt of Court)
Bill is included in our Report. The Bill is designed
to implement our
various recommendations and is drafted in modern language. In accordance
with good practice,115 the Bill includes a provision (clause 3)
explaining the principal purposes and objectives of the new legislation. We
have also
provided commentaries on the Bill’s provisions and refer to the
relevant clauses of the Bill in the course of our Report.
If the Bill is
enacted, the success of our various recommendations will depend at least in
part on those responsible for enforcing
the new offences having the resources
and willingness to do
so.
115 Law Commission A New Interpretation Act: To Avoid
“Prolixity and Tautology” (NZLC R17, 1990) at [224] and Law
Commission Legislation Manual: Structure and Style (NZLC R34, 1996) at
[30]; and Legislation Advisory Committee Guidelines on Process and Content
of Legislation (Wellington, 2014) at 46. See also: Hessell v R [2010]
NZSC 135, [2011] 1 NZLR 607 at [42]‒[43]; and Ross Carter Burrows and
Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at
ch 8.
Reforming the law of contempt of court: A modern statute 35
CHAPTER 2: Publication contempt
Chapter 2
Publication contempt
INTRODUCTION
2.1
2.2
2.3
Publishing material that prejudices the administration of justice may
be contempt of court. Contempt arises when a publication
crosses the line
between fair and accurate reporting and interference with the course of
justice. The contempt may take the form
of interference with a particular case
that is before the courts or may more generally prejudice the course of justice
by eroding
access to justice or public confidence in the justice
system.
Contempt by publication is one of the few areas of contempt that
remains purely judge-made common law.116 The authority to punish
the contempt falls within the High Court’s inherent jurisdiction. Only
the High Court has jurisdiction
to punish for this form of contempt, even
where it occurs in relation to proceedings in another
court.117
In this chapter we consider the current law of
contempt applying to publications that interfere with the right to a fair trial
and examine the case law applying to public statements and other publications
seeking to improperly influence a litigant or the
courts. We then outline
proposals contained in our Issues Paper and feedback from the
submissions we received. The chapter
concludes with our recommendations for
reforming publication contempt.
PROTECTING THE INTEGRITY OF A FAIR TRIAL
2.4
2.5
The authority and power of the courts to control information in the
lead-up to, during and after a criminal trial is fundamental
to the integrity
of the trial process. Judges have powers to determine what information can be
disclosed publicly and at what point
before, during and after a trial.118
They also have jurisdiction to punish those who disregard these
prohibitions. Courts have inherent authority or implied powers
to protect
“the fair trial rights of an accused”119 from the point
when the laying of charges is “highly likely”.120
From that point onwards, a case is described as sub judice or literally
“before the court or judge for
determination”.121
Throughout the protected fair trial
period, which is generally the period between when a person is arrested and the
trial is completed,122 the law of contempt together with statutory
and implied suppression powers serve the function
of:123
116 Courts also have statutory and implied powers to suppress publication of specific information. These powers are discussed below.
117 See the discussion on the difference between inherent jurisdiction and the more limited implied powers of courts in chapter 1 at [1.11]–[1.16].
118 As we discussed at [1.15] the District Court, not having inherent jurisdiction, is not able to punish contempt where a publication interferes with a fair trial.
119 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [114].
120 Television New Zealand Ltd v Solicitor-General [1989] NZCA 67; [1989] 1 NZLR 1 (CA) at 3.
121 Bryan A Garner (ed) Black’s Law Dictionary (9th ed, Thomson Reuters, Boston, 2009) at 1562.
122 Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 (CA) at 569-571. Discussed below at [2.20].
123 For example, the courts have suppression powers under s 19 of the
Bail Act 2000 and ss 200, 202 and 205 of the Criminal Procedure
Act 2011, and
the High Court has authority under its inherent jurisdiction to make orders
suppressing publication of its judgments:
Siemer v Solicitor- General
[2013], above n 119, at [175].
36 Law Commission Report
. preventing the general public, from whom the jury pool will eventually be drawn, being exposed to information that is prejudicial and that may make it difficult for jurors to approach the trial with open minds;
. ensuring the court’s authority to determine what evidence will be admitted at trial is not pre-
empted by the publication of information; and
. preserving the integrity of evidence including, for example, the reliability of witness
statements about matters such as identity.
2.6
2.7
2.8
2.9
Contempt in this context is a preventative jurisdiction concerned
with protecting the administration of justice. Contempt
is expected to have
a chilling effect on people publishing material that poses a risk to a fair
trial. It is of course also
punitive because the Court may impose
sanctions, including imprisonment for up to two years, after the
event.124
Where a person’s fair trial rights are
compromised, the trial judge may have no option but to discharge the jury and
abandon
the trial. There is a significant cost for the state whenever a trial
is abandoned. A retrial is expensive and time consuming.
The Ministry of
Justice advises that the typical cost incurred during the 2014/15 Financial
Year for a District Court jury trial
was
$8,170 per day or $26,144 per
trial. These figures include court costs, juror costs, judicial costs and
legal aid costs, but
exclude investigation or prosecution costs incurred by
other agencies such as the Police, Crown Law, Crown Solicitors or the
Department
of Corrections. The figures also do not include any private costs
incurred by a defendant. The average cost of a High Court trial
is likely to be
higher because High Court trials are generally longer and the judicial
costs will be higher.125 Abandoning a trial also impacts upon
complainants and their families who have to endure the stress of a trial
all over
again. There is also stress and inconvenience for defendants and
other witnesses.
Arguably suppression orders protect the integrity of
the trial process more effectively than contempt because they prohibit
outright the publication of certain information. For this reason, however,
suppression orders also restrict freedom of expression
more, so courts must use
them with caution.
The Commission’s overall approach to reform
is to emphasise the importance of certainty in the law. We focus more on
temporary suppression orders that prevent information posing a real risk of
prejudice to a trial from being published and less
on contempt to deter
publication. Such an approach reduces the need for people, especially the
media, to second guess the courts
as to whether a publication may be in
contempt. It also avoids the costs and other detriments inevitably involved in
an abandoned
trial and the costs of contempt proceedings.
The common law strict liability test for publication
contempt
2.10
The established common law test New Zealand judges apply for
publication contempt is whether “there [is] a real
risk, as
distinct from a remote possibility, [that the publication interferes]
with the ... [right to] a fair trial”.126 Real risk has been
defined as a risk that is “more than speculative. It must be likely
that the administration of justice
could be
prejudiced”.127
124 The Supreme Court in Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 determined that the maximum penalty allowed by the common law for contempt must be less than that specified in s 24(e) of the New Zealand Bill of Rights Act 1990, which guarantees a person charged with an offence the right to a trial by jury. Since 2013 this has been two years’ imprisonment as a result of an amendment to s 24(e): New Zealand Bill of Rights Amendment Act 2011, s 4.
125 In the United Kingdom the Attorney-General’s department estimated that one particular abandoned trial resulted in the waste of approximately
£80,000 ($145,000 NZ) of costs to the Court Service and Court Prosecution Service; Attorney General’s Office (UK) “Two jurors found guilty of contempt of court” (press release, 9 June 2016).
126 Gisborne Herald Co Ltd v Solicitor-General, above n 122, at 567.
127 Solicitor-General v W & H Specialist Publications Ltd
[2003] 3 NZLR 12 (HC) at [19] (emphasis added).
Reforming the law of contempt of court: A modern statute 37
CHAPTER 2: Publication contempt
2.11
2.12
The standard of proof is the criminal standard of beyond reasonable
doubt.128 Critically, this assessment is not dependent on
whether the real risk associated with a publication actually
materialises.129 A publication can be in contempt even though a
fair trial eventuated.130
Nor does the test require an
intention to interfere with the administration of justice. All that is required
is that the defendant
knowingly published the information. A Full Court of
the High Court in Solicitor-General v Radio New Zealand has said
“[this] element is satisfied by proof that the defendant knowingly
carried out the act or was responsible for the
conduct in
question”.131
Furthermore, whether any harm to the
trial actually eventuated is not relevant. First, it is not permissible to
establish empirically
whether a jury’s deliberations were improperly
influenced by exposure to prejudicial pre-trial publicity because
jury
deliberations are confidential.132
Second, the purpose of
contempt is preventative.
The High Court’s approach
2.13
It is not possible to formulate from the common law any bright line
as to when it will be contempt to publish.133 Whether a
publication meets the threshold and poses a real risk to a trial is highly
circumstantial. As the High Court has put
it, “what counts is the
overall impact”.134
The Court considers both the nature
of the information published and the broader context of the particular case
when determining
whether there is a real risk. The Court recognises that
particular circumstances may diminish the degree of prejudice so judgement
is
important. As already noted,135 the advent of the internet and the
consequential durability and potential reach of any publication now pose
significant challenges
for the Court when applying the “real
risk” test. Some internet-based publications and social media posts go
viral.
Consequently, they have much greater potential impact than those with
more limited circulation or dissemination.
Publication of prior criminal convictions or information indicating
bad character
2.14
Prohibiting the publication of a defendant’s prior convictions or
concurrent charges while his or her case is before the
court is as close to a
bright line as it is possible to have in publication contempt. In what is still
regarded as one of New
Zealand’s leading contempt cases, Gisborne
Herald Co Ltd v Solicitor-General, the Court of Appeal
said:136
[T]o publish the criminal record of an accused or comment on the
previous bad character of an accused before trial is
a prime example of
interference with the due administration of justice and, subject to
considerations such as time and place,
almost invariably is regarded as a
serious contempt.
Publication of disputed or crucial evidence
2.15
Where publications canvass issues that are likely to be disputed in court,
including, for example, questions of identity, they
are likely to pose a
real risk of interference. Again, this is not a
128 Solicitor-General v Wellington Newspapers Ltd [1995] 1 NZLR 45 (HC) at 47.
129 See for instance Solicitor-General v TV3 Network Services Ltd HC Christchurch M 520/96, 8 April 1997 at 7 per Eichelbaum CJ.
130 Solicitor-General v TV3 Network Services Ltd (1998) 16 CRNZ 401 (HC) at 410. See also Solicitor-General v Fairfax New Zealand Ltd HC Wellington CIV-2008-485-705, 10 October 2008 at [84].
131 Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC) at 55–56.
132 See below in chapter 4 from [4.58].
133 See Ursula Cheer Burrows and Cheer: Media Law in New Zealand (7th ed, LexisNexis, Wellington, 2015) at 567: “... it is not possible to lay down an exhaustive checklist of items which it is contemptuous to publish. Attempts have been made to do so, but are subject to objection for at least two reasons. In the first place, it is impossible for anyone to foresee accurately and with omniscience every type of publication which is capable of creating prejudice. In the second place, it is not just the type of publication which is relevant, but also the circumstances of its publication.” (emphasis in original).
134 Solicitor-General v TV3 Network Services Ltd, above n 129, at 10.
135 See chapter 1 at [1.49].
136 Gisborne Herald Co Ltd v Solicitor-General, above n 122, at
568.
38 Law Commission Report
bright line, but publication of the photographs of suspects or an accused may
create a risk where identity is in issue.137 Similarly, witness
statements published in the media can cause problems if they traverse matters
that may prove either critical
to the trial or, conversely, are inadmissible
as evidence in court.138 Social media, through which people can
quickly disseminate photos or videos captured on smartphones, makes it very
difficult
to stop the publication of what may become disputed eyewitness
accounts.
Specific content and overall context are
considered
2.16
2.17
2.18
The courts consider the content, its accuracy and tone, as well as the
medium and durability of a publication. Sensational
aspects of a case may make
a publication more enduring.139 While factual errors in reporting
can generally be corrected by a subsequent judicial direction, courts consider
sensationalism
more difficult to eradicate.140 The medium of
publication is also relevant when assessing impact. Over 10 years ago in
Solicitor-General v Smith, a Full Court of the High Court said
“television is widely acknowledged to have a more powerful reach than
does radio, or
the print media” due to television’s
“ability to depict people and places in a way that can manipulate
the
emotions of viewers”.141 Today pictures and video can be
posted on social media and have an even greater reach.
At the same time,
however, even sensational and sustained reporting of high-profile cases has
not always been held to be contempt.
A significant example of this
occurred when Fairfax Media published excerpts of intercepted
communications which led
to the Urewera raids. The raids had generated a
substantial amount of publicity and public interest due to the use of
roadblocks and the prospect of New Zealand’s first prosecutions
under the Terrorism Suppression Act 2002. The intercepted
communications were
inadmissible due to the Solicitor- General’s decision not to grant
consent to prosecution for terrorism
charges, and were subject to suppression
orders from pre-trial decisions and a statutory prohibition of
publication.142
Notwithstanding this, a Full Court of the High
Court in Solicitor-General v Fairfax New Zealand
Ltd concluded that the Solicitor-General:143
[H]as not proved beyond reasonable doubt that, as a matter of
practical reality, the actions of the respondents in publishing
the Fairfax
articles caused a real risk of interference with the administration of justice
by compromising the fair trial rights
of the accused.
In part the
Court reached that conclusion because it considered the breaches of
suppression orders and other unlawful conduct
by the respondents should
have resulted in their being prosecuted under the relevant statutory
provisions rather than
for common law contempt.144
As discussed
earlier in [1.44], this approach may be contrasted with a recent English
decision where a court found two defendants
who had covertly photographed
court proceedings guilty of contempt even though there was a specific
statutory offence that covered
the conduct.145
137 In one case, N.Z. Truth’s publication of a photo of a person charged with murder was a contempt as it was reasonably clear that identity would be in issue and publication of the photograph could make “a perfectly honest witness feel certain of identity when he might otherwise have felt some doubts”; Attorney-General v Tonks [1934] NZLR 141 (SC) at 153.
138 Television New Zealand Ltd v Solicitor-General, above n 120, was an injunction case where TVNZ proposed to broadcast interviews of neighbours and friends of a person that Police were searching for in relation to a murder. The Court of Appeal, in obiter, said the proposed broadcast “verges on a report of interviews with potential witnesses, which may amount to contempt”: per Cooke P at 3.
139 See for example Gisborne Herald Co Ltd v Solicitor-General, above n 122, in which the publication detailed an attack on a Police officer by a person on bail at the time. The officer’s wife gave birth on the night of the attack and was sent to the spinal unit where the officer was being treated. The sensational aspect of the facts was relevant to the finding of contempt.
140 Solicitor-General v TV3 Network Services Ltd, above n 129, at 9.
141 Solicitor-General v Smith [2004] 2 NZLR 540 (HC) at [97].
142 Solicitor-General v Fairfax New Zealand Ltd, above n 130, at [3]–[4], [15]–[24] and [65].
143 Solicitor-General v Fairfax New Zealand Ltd, above n 130, at [134].
144 At [7.19]–[7.21].
145 Solicitor-General v Cox [2016] EWHC 1241 (QB), [2016] 2 Cr App
R 15.
Reforming the law of contempt of court: A modern statute 39
CHAPTER 2: Publication contempt
2.19
As we discuss later in Chapter 7, we consider it preferable in new
legislation to expressly address the question of whether
the statutory
offences are intended to replace contempt.146
Timing, locality and distribution of publication
2.20
2.21
2.22
2.23
2.24
In earlier cases the timing of a publication was regarded as one of the most
significant factors in determining whether the publication
was in contempt. In
the Gisborne Herald case, the Court of Appeal in 1995 said that, while
“the exact lapse of time is not the touchstone”, a trial that is six
to eight months away will make it difficult to justify the conclusion
“that the influence of the article would have survived
the passage of
time”.147 The general tenor of the case law emphasises that
time causes memory to fade – known as the fade factor – and reduces
the prejudicial effect an offending publication may have.148
Publishing prejudicial information close to or during a trial has
historically been much more likely to be in contempt.149
With
the internet, the fade factor and concepts of time and place are less
relevant today as search technologies mean publishing
is a continuous act and
content is not easily erasable. The internet challenges the concepts of
practical and partial obscurity
that were characteristics of earlier
times.
The physical radius of distribution of a publication has
also historically been considered relevant in assessing whether
there is a
risk to a fair trial. In the Gisborne Herald case, the Court held
articles published in the Gisborne Herald paper, which included
information about a defendant’s previous convictions and other charges,
not to be in contempt in relation
to a trial the accused faced in Napier
because the Gisborne paper did not circulate in the Hawke’s Bay. The
Court considered
it “highly unlikely” that prospective jurors
would have read it.150
The courts now have to consider a
publication’s potential audience and reach – all factors that may
be relevant to
the possible impact on a potential juror – differently.
In Fairfax, the Court considered how it could accurately assess the
prejudicial tendency of the articles published by Fairfax, given
what it
described as an “avalanche of content” already publicly available
in both mainstream and social media. The
full affidavit that formed the
basis of the articles and had been ruled inadmissible during a pre-trial
hearing was available
on a number of publicly accessible websites before
Fairfax published part of it. The Court commented that managing the risk of
jurors accessing the affidavit from websites was “a normal trial risk in
today’s electronic environment which would
usually be addressed by
appropriate jury direction”.151
When assessing the
reach or prominence of prejudicial content today, the Court may consider
questions such as how high an item
is ranked on a Google search and whether the
item has been actively sent out to audiences (for example, via a television
broadcast)
or whether a potential juror would have to search out the material
actively. For example, in a recent case concerning take down
orders, the
Court of Appeal upheld the High Court’s decision that old news articles
that related to the original trial
and remained online would not pose any
real risk of prejudice
146 See chapter 7 at [7.20]–[7.21]. An example of a statutory provision that expressly addresses the question of replacing contempt is s 3 of the Protection from Harassment Act 1997 (UK). That provision provides that the offence under that section is an alternative and not a replacement for contempt.
147 Gisborne Herald Co Ltd v Solicitor-General, above n 122, at 570–571.
148 See for example Solicitor-General v Broadcasting Corporation of New Zealand [1987] 2 NZLR 100 (HC); Solicitor-General v Fairfax New Zealand
Ltd, above n 130; Television New Zealand Ltd v Solicitor-General, above n 120; Mwai v Television New Zealand Ltd HC Auckland CP 630/99, 19
October 1993; Rahimi v Television New Zealand (2000) 6 HRNZ 79 (HC); and Burns v Howling at the Moon Magazines Ltd [2002] 1 NZLR 381 (HC); Attorney General v Birmingham Post and Mail Ltd [1999] 1 WLR 361 (QB); [1998] 4 All ER 49; Attorney General v MGN Ltd and another [2011] EWHC 2074 (QB).
149 Solicitor-General v TV3 Network Services Ltd, above n 130, at 409.
150 At the same time, the Court found that the article was nevertheless in contempt because there was a real risk of it interfering with a fair trial on different charges in Gisborne: Gisborne Herald Co Ltd v Solicitor-General, above n 122, at 570–571.
151 Solicitor-General v Fairfax New Zealand Ltd, above n 130, at
[126]. See also chapter 4 at [4.15]‒[4.17].
40 Law Commission Report
to a retrial.152 The Court considered the defendant’s name
was not in public consciousness and as long as the articles remained only
accessible
at their original uniform resource locator (URL) a potential juror
would have to search the names of the defendant or the complainant
actively to
uncover the material and there was only a remote possibility of that
occurring.153
Judge-alone trials
2.25
2.26
Publication contempt is less of an issue in judge-alone trials. The
traditional approach followed by New Zealand courts is there
is no real risk
of adverse pre-trial publicity influencing a judge sitting alone.154
In Mwai v Television New Zealand Ltd McGechan J said “I
dismiss outright the possibility of effects upon any future trial Judge.
There is no possibility”.155 The traditional approach
recognises the effectiveness of judicial independence. A publication is
unlikely to be held to be in
contempt only because of any risk it will
influence a judge-alone trial.
Contempt might, however, arise in
relation to a judge-alone trial where there is a real risk that a publication
might interfere
with the evidence of witnesses. There is no recent
authority, but in an older case publishing a photo of a person charged with
murder was held to be in contempt because the photograph could influence a
witness’s evidence on identity and the identity
of the perpetrator was in
issue in the case.156
Trial by media and maintaining public confidence in the
courts
2.27
2.28
Publications have also been held to be in contempt when they seek to
influence the outcome of a trial or usurp the role of the
Court by prejudging
issues before the Court. This is often referred to colloquially as trial by
media. The concern here is not that
the courts will be influenced but that
perceptions of influence will undermine public confidence in the integrity of
the courts.157
In Solicitor-General v Wellington
Newspapers, Eichelbaum CJ and Greig J explained the rationale behind this
contempt:158
If Joe Public is accused of an offence of which he believes he is innocent
he will not wish to be tried in the media. When charges
are laid in Court the
public must be assured the issues will be decided in the Courts and nowhere
else.
The Full Court, however, went on to consider whether the
publication “as a matter of practical reality” posed a real
risk
to the trial,159 rather than whether it undermined public confidence
in the courts. The Court held the newspaper guilty of contempt for reporting
previous convictions and details concerning bail as well as publishing a
prejudicial photograph.160
Notions of trial by media or
usurping the role of the courts as contempt come from much earlier cases. In
1939, in Attorney General v Tonks the newspaper The N.Z. Truth
published an article
calling on the Magistrates Court to impose a
lengthy sentence on an offender who had been
152 L v R [2015] NZCA 279, [2016] 2 NZLR 21 at [64]‒[67].
153 At [64].
154 See Hickmott v Television New Zealand Ltd HC Auckland CP 213/93, 31 March 1993 at 5; Mwai v Television New Zealand Ltd, above n 148; and John McGrath QC “Contempt and the Media: Constitutional Safeguard or State Censorship?” (1998) NZ Law Review 371 at 378. In Solicitor- General v Smith, above n 141, the Full Court of the High Court noted at [79] that there was some English and Irish authority that “Judges, despite their training and experience, are only human and are not ‘entirely aloof from the pressures to which other members of the public are susceptible’”.
155 Mwai v Television New Zealand Ltd, above n 148, at 735.
156 Attorney-General v Tonks, above n 137, at 153.
157 Gisborne Herald Co Ltd v Solicitor-General, above n 122, at 569.
158 Solicitor-General v Wellington Newspapers, above n 128, at 47.
159 At 47.
160 At 48.
Reforming the law of contempt of court: A modern statute 41
CHAPTER 2: Publication contempt
2.29
2.30
2.31
2.32
convicted of indecent assault.161 The then Supreme Court
found the publication to have been “calculated to prejudice,
obstruct, or interfere with the
due administration of justice” and held
the editor of The N.Z. Truth, Mr Tonks, in contempt of court.162
Myers CJ said that the public must have confidence that the courts
are free from any extraneous influence.163 He considered that
“public confidence must necessarily be shaken if there is the least
ground for any suspicion of outside
interference in the administration of
justice”.164
Contempt on this ground is, however, now
less certain. There have been no recent New Zealand authorities and there is
a question
whether Tonks would be followed today. A recent example of a
newspaper commenting on how an offender should be sentenced occurred when
John Banks MP was before the High Court for sentencing in 2014 after
he was found guilty of knowingly filing a false
electoral return.165
The New Zealand Herald published an article in print and online
under the heading, “Most want Banks to be convicted”.166
The article reported on an opinion poll undertaken by the newspaper as
to whether Mr Banks should be discharged without conviction
and, if not, what
sentence was appropriate. The sentencing judge considered the article raised
the possibility of contempt and
referred the matter to the
Solicitor-General. Contempt proceedings were not, however, taken against the
paper.
In our view the current position is probably that older cases
like Tonks might not be followed. More recent decisions in the Australian
courts take a more robust approach to public confidence in the courts.
The
Supreme Court of Victoria has said “the media and the public know the
courts are not, and must not be, influenced –
easily or at all – by
extraneous matter”.167
We suggest New Zealand courts
would probably take a similar approach. Contempt proceedings were not, for
example, taken against
the New Zealand Herald in the Banks case
discussed above.168 There is a greater tolerance of comment prior
to sentencing because sentencing is done by a judge sitting
alone.
Contemporary New Zealand also places a high value on freedom
of expression and is more tolerant of critical comment and
robust
discussion. Freedom of the press and other media (including social media)
is not lightly interfered with in this context.
Injunctions to restrain a contempt
2.33
The High Court has inherent authority to prevent contempt of court by
issuing an injunction to stop a publication of material
that poses a risk
to a fair trial.169 The Court of Appeal
has
161 Attorney-General v Tonks [1939] NZLR 533 (SC) at 537.
162 At 537.
163 At 537.
164 At 537.
165 R v Banks [2014] NZHC 1244, [2014] 3 NZLR 256 (reasons for verdict); R v Banks [2014] NZHC 1807 (sentence); conviction quashed and retrial ordered in Banks v R [2014] NZCA 575; judgment recalled and verdict of acquittal entered in Banks v R [2015] NZCA 182. Mr Banks, who had been a candidate for election as Mayor of Auckland, was found guilty and was convicted in the High Court on one charge under s 134(1) of the Local Electoral Act 2001 of being a candidate for election, transmitting a return of electoral expenses, knowing it to be false in one or more material particulars. He successfully appealed against the conviction and the Court of Appeal initially quashed the conviction and ordered a retrial, before subsequently recalling that judgment and entering a verdict of acquittal.
166 Derek Chang “Most want Banks to be convicted” The New Zealand Herald (New Zealand, 7 July 2014) at A8.
167 R v The Herald and Weekly Times Pty Ltd [2006] VSC 94 at [28].
168 Another example of a situation where the media have commented on a case when it is still before the court is the “March for Moko” campaign.
The organisation of the march was started off by an article by Duncan Garner “A little boy is dead – now who will march for Moko?” The Dominion Post (online ed, 7 May 2016). Following the article a Facebook page was set up to gain wider attention. The Court of Appeal in R v Liddell [1995] 1 NZLR 538, (1994) 12 CRNZ 458 at 546 noted the potentially counter-productive nature of such campaigns to influence the courts.
169 These are known as quia timet (“because he
fears”) injunctions. The Crown or defendant in a criminal trial may
apply for an injunction. In other
contexts, other parties to litigation may
also seek quia timet injunctions to prevent other forms of contemptuous
publication.
42 Law Commission Report
2.34
confirmed the High Court’s inherent jurisdiction to prevent the risk
of contempt by issuing an injunction.170
While courts have
occasionally granted injunctions,171 they have repeatedly
cautioned that prior restraint on freedom of expression will only be appropriate
in the clearest of cases.172 Any such prior restraint must pass a
high threshold.173 The test for granting an injunction is that it
must show there is “a real likelihood of a publication of
material that will seriously prejudice the fairness of the
trial”,174 which sets a higher threshold than the real
risk test used in contempt
proceedings following publication.
Statutory and implied powers of suppression
2.35
2.36
2.37
When summarising the relevant law in this area, we also briefly mention
suppression orders because these are the other key
mechanism used to protect
the integrity of a fair trial. Courts have a range of statutory and implied
suppression powers. Under
the Criminal Procedure Act
2011 a trial court
may suppress the name and identity of the defendant,175 the
identity of witnesses, victims and people connected with the trial (such
as relatives and children)176 and evidence and
submissions.177 The Act also provides for the automatic suppression
of the identity of defendants and the identity of complainants in specified
sexual cases,178 and the identity of child complainants and
witnesses in any case.179 In addition, the Bail Act 2000
imposes restrictions on the publication of matters dealt with at any bail
hearing.180
The majority of the Supreme Court in the second
Siemer case confirmed that where there is no statutory power
applicable, courts can use their inherent authority or implied powers
to
make any suppression order necessary to protect or uphold the administration
of justice and protect the fair trial rights
of an accused.181 The
majority said:182
[W]here publication of certain information would give rise to a real risk of
prejudice to a fair trial right, freedom of expression
may be temporarily
limited by a suppression order in order to avoid that risk. In our view, this
approach properly recognises the
special importance of fair trial
rights.
The District Court has jurisdiction to make suppression orders
under the Criminal Procedure Act 2011 for the purposes outlined
above at
[2.35]. Applying the Supreme Court decision in the second Siemer
case, it appears the District Court may use its implied powers to
make a suppression order prohibiting the publication
of other information in
situations not covered
170 Television New Zealand Ltd v Solicitor-General, above n 120, at 3.
171 For example, in Television New Zealand Ltd v Solicitor-General an ex parte injunction was originally granted restraining Television New Zealand from broadcasting certain material. The injunction was later rescinded on appeal by the Court of Appeal; Television New Zealand Ltd v Solicitor- General, above n 120, at 3. See also Attorney-General v TV3 Network Services Ltd HC Invercargill CP2/96, 8 March 1996, in which an injunction was granted to restrain TV3 from showing a documentary. Later, the High Court declined to extend the injunction in Attorney-General v TV3
Network Services Ltd HC Invercargill CP2/96, 16 August 1996.
172 See generally Cheer, above n 133, at 567‒568; and Jesse Wilson “Prior Restraint of the Press” [2006] NZ L Rev 551. See also Beckett v TV3
Network Services [2000] NZHC 1341; (2000) 6 HRNZ 84 (HC) at [21], in which Robertson J stated that “[a]ny prior restraint of free expression must pass a high threshold”; and the reference to the need for “clear and substantial evidence” for an injunction to prevent contempt in Hickmott v Television New Zealand Ltd, above n 154.
173 Bouwer v Allied Press Ltd [2001] NZCA 131; (2001) 19 CRNZ 119 (CA) at [10]; and Beckett v TV3 Network Services, above n 172, at [21].
174 Television New Zealand Ltd v Solicitor-General, above n 120, at 3 (emphasis added).
175 Criminal Procedure Act 2011, s 200.
176 Criminal Procedure Act 2011, s 202.
177 Criminal Procedure Act 2011, s 205.
178 Criminal Procedure Act 2011, ss 201 and 203.
179 Criminal Procedure Act 2011, s 204. Relevant also is the Children, Young Persons, and Their Families Act 1989, s 438 which prohibits reporting of Youth Court proceedings.
180 Bail Act 2000, s 19.
181 Siemer v Solicitor-General [2013], above n 119, at [114].
182 At [158].
Reforming the law of contempt of court: A modern statute 43
CHAPTER 2: Publication contempt
2.38
by the Criminal Procedure Act where that is necessary to protect the
fair trial rights of a defendant.183 Exercising implied powers
to make non-statutory suppression orders may include making orders requiring
prejudicial material
to be removed from publicly accessible websites (take
down orders).184
The majority of the Supreme Court in the
second Siemer case considered that an interim ban, pending trial, on
publishing material that gives rise to a real risk of prejudice to
a fair
trial is a reasonable limit on the right to freedom of expression in section
14 of the New Zealand Bill of Rights Act
1990 (NZBORA).185 It is
worth noting that the Court used the same “real risk of prejudice
test” that applies to contempt. Suppression
and contempt might therefore
be viewed as alternative ways of addressing the same issue. We will return
later to the role of suppression
orders when we consider possible
reforms.
PUBLICATION CONTEMPT IN CIVIL PROCEEDINGS
2.39
2.40
In this section we discuss the law of contempt as it applies to public
statements or publications that place improper pressure on
litigants in
civil proceedings.186 This category of contempt seeks to
protect the public’s access to justice, free from restraint or
intimidation, so they
can determine disputes over their legal
rights.187 There are two aspects to improper pressure on
litigants. The first concerns the litigants in a particular case, while
the
second concerns the public as potential litigants.188 The
risk is not just that the party in the case will be influenced, but that the
conduct may inhibit people generally from using
the courts to enforce their
rights.189
In Duff v Communicado Ltd Blanchard J in
the High Court held:190
A public statement about civil litigation currently before a Court will
be in contempt of Court if:
(a)
(b)
it goes beyond fair and temperate comment;
and
either,
(i)
(ii)
when viewed objectively, it can be seen to have a real likelihood of
inhibiting a litigant of average robustness from availing
itself of its
constitutional right to have the case determined by the Court;
or
it is actually intended by the maker of the statement to have that
inhibiting effect on a litigant.
2.41
This test is primarily objective, focusing on the probable tendency
of the publication rather than its actual effect; but it encompasses the
unfair and intemperate comment of someone who has set
out to inhibit a litigant
regardless of whether the comment actually succeeds in doing so.
A Full
Court of the High Court adopted this test in Smith.191 In
that case Dr Nick Smith MP, Radio New Zealand, and TV3 faced contempt
proceedings in response to their involvement
in a family court custody
case involving one of Dr Smith’s constituents. As we noted in
the
183 L v R, above n 152, at [37].
184 L v R, above n 152, at [13].
185 Siemer v Solicitor-General [2013], above n 119, at [159] and [229]. See also Siemer v Solicitor-General [2010], above n 124, at [24]–[25] and discussed in chapter 6 at [6.33].
186 In practice most civil proceedings are heard by a judge sitting alone, so there is limited risk that anything published may interfere with the decision. Civil jury trials are referred to in chapter 4 at [4.2].
187 Attorney-General v Times Newspapers Ltd [1974] AC 273 (HL) at 307; Solicitor-General v Smith, above n 141, at [41]–[44].
188 Solicitor-General v Smith, above n 141, at [45] and [47].
189 Pharmaceutical Management Agency Ltd v Researched Medicines Industry Association New Zealand Inc [1996] 1 NZLR 472 (HC) at 476.
190 Duff v Communicado Ltd [1996] 2 NZLR 89 (HC) at 98.
191 Solicitor-General v Smith, above n 141, at [41]–[44]
citing Attorney-General v Times Newspapers Ltd, above n 187. See also
chapter 6 at [6.22].
44 Law Commission Report
2.42
2.43
2.44
2.45
2.46
introduction to this chapter, the High Court’s inherent
jurisdiction includes this protective jurisdiction of upholding
the authority
of lower courts and tribunals.192
Dr Smith had issued press
releases, conducted interviews on radio and television and phoned the
caregiver of the child involved
in the custody dispute. The High Court held
that Dr Smith’s comments in his media releases and on the radio were
in contempt.
The Court described the comments as one-sided, emotive and
extreme and held they went well beyond what was fair and temperate
and were made
with the intention of persuading the caregiver to surrender
custody.193
The Court found that, objectively viewed, the
comments were likely to inhibit a litigant of average robustness from
availing
themselves of having the Family Court determine their
case.194
Radio New Zealand was also held in contempt in
relation to its broadcast of its interview with Dr Smith. TV3, which had aired
a
documentary on the custody dispute, was held in contempt for the biased
nature of the programme covering the issue. The Court found
that TV3 intended to
place improper pressure on the caregiver, and even if not intended, this
was undoubtedly the effect of
the programme. The pressure also translated to a
risk of dissuading other similarly placed litigants from going to the Family
Court.195 The Court’s decision in Smith reflected
the essence of this contempt and provides the clearest illustration of what is
being protected in this area.
While Smith still represents
the law, a more recent High Court judgment in Progressive
Enterprises Ltd v North Shore City Council raises questions over
whether the standard of “a litigant of average robustness” is
an appropriate one where
the actual parties are in fact
“formidably robust” parties.196 In that case the
National Trading Company Ltd (NTC) had received resource consent from the
North Shore City Council
to build a new supermarket. Progressive
successfully challenged the consent in the High Court. The Council
and NTC
appealed. Pending the appeal, NTC launched a wide-ranging media
campaign encompassing newspaper, radio, flyers and
bus-shelter posters.
The tenor of the campaign was that Progressive’s court action
was preventing NTC from opening
a supermarket on the North Shore thereby
depriving the public of lower prices. Progressive responded with contempt
proceedings.
Justice Baragwanath considered that, if he applied the test
developed in Duff and Smith, NTC’s media campaign would be
in contempt because it went beyond fair and temperate comment and would
inhibit a person
of “average robustness” from going to court. He
concluded, however, that the tests in Duff and Smith
“do not provide the whole of the guidance necessary in this
case”.197 As both companies were “economically
powerful and in direct competition”,198 the Judge
considered a “litigant of average robustness” was an inappropriate
measure of criminal liability where the
party under attack is a
“formidably robust party”.199
Justice
Baragwanath reverted to the underlying principles identified by the Court of
Appeal in
Gisborne Herald, namely that contempt proceedings ultimately turn on
four key questions:200
192 Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at 616.
193 Examples of the comments made included “this case almost amounts to state sanctioned child stealing” and “a warrant [from the Court] for the child to be ripped out of his family’s arms”; Solicitor-General v Smith, above n 141, at [58].
194 Solicitor-General v Smith, above n 141, at [60].
195 Solicitor-General v Smith, above n 141, at [98]–[102].
196 Progressive Enterprises Ltd v North Shore City Council [2005] NZHC 1211; [2006] 2 NZLR 262 (HC) at [37].
197 At [28].
198 The Court noted that at the time, Progressive operated Foodtown, Woolworths and Countdown supermarkets and had approximately 44 per cent of the New Zealand supermarket expenditure on food and groceries and NTC’s brands included Four Square, New World and PAK’n SAVE and had the remaining 56 per cent share; at [8].
199 At [37].
200 At [40].
Reforming the law of contempt of court: A modern statute 45
CHAPTER 2: Publication contempt
(a)
(b) (c) (d)
As a matter of practical reality, was there a real risk, as distinct from a
remote possibility, of interference with the administration
of
justice?
In the circumstances, was the conduct improper?
Was it
proportionate to characterise the conduct as criminal? If so, what penalty, if
any, should be imposed?
2.47
2.48
The Judge held in that case the question was whether NTC’s
campaign “created a real risk that Progressive would
be shamed into
abandoning its opposition to NTC’s application”.201 On
evaluation, the Court could “see no risk whatever to that effect” so
concluded that NTC’s media campaign was
not in
contempt.202
While some might consider Baragwanath J to have
expounded a new test of improper conduct for contempt, his decision should be
regarded
as taking a more discriminating approach that takes into account
whether a media campaign against a strong, financially resourced
opponent
would, in reality, deter less robust individuals from resorting to the
courts to determine their disputes. The decision
recognises an ordinary
person would look at NTC’s media campaign and see it was a strategy
against a formidable,
well-resourced competitor and unlikely to be employed
against a smaller shop owner. The Judge explicitly stated, if NTC employed
the
same strategy against a smaller competitor, the risk of unlawful interference
might arise.203
Progressive links this form of contempt
back to the overarching principle behind all contempt: whether there is a real
risk that the conduct
interferes with the administration of justice. Where the
interference is to a citizen’s resort to the courts, the parties
and
their financial positions in respect of each other form part of the context
in which courts assess the risk.
THE ISSUES PAPER AND SUBMISSIONS
Key issues
2.49
In its Issues Paper the Commission identified a number of problems with
the current law, the key ones being:
(a) (b)
(c)
uncertainty around the scope of publication contempt;
difficulties
over applying the “real risk” test and conflating that test
with the test that applies for a
miscarriage of justice;
and
conceptual and practical issues in applying existing law and
reasoning in the age of the internet and new media platforms.
(a) Uncertain scope of contempt
2.50
The scope of contempt is uncertain. Contempt relies on the media and others
who publish and comment on news and events correctly
assessing whether
their publication poses a real risk of interfering with the administration of
justice. Those publishing material,
which increasingly includes members of the
public by way of social media, are essentially expected to predict
where
201 At [45].
202 At [48].
203 At [50]. See also Doug Hood Ltd v Canterbury Regional Council
(1998) 13 PRNZ 80 (HC) at 86. Doug Hood sought an interim injunction
preventing the release of a report into the collapse of the Opuha Dam, pending
civil and criminal proceedings into the collapse. William Young J, in refusing
to grant the relief, held that “Doug Hood
Ltd can be, I think, regarded
as a reasonably robust litigant which has already been involved in heavy
publicity over its
role in the collapse of the dam. I would think it quite
able to deal with the media and quite unlikely to be cowed into an
inappropriate
settlement by reason of what is said in the report in
issue”.
46 Law Commission Report
2.51
the Court may, if called upon, ultimately draw this line. If the law is
uncertain, those reporting on public events may be too cautious,
and this may
have a chilling effect on public discussion. On the other hand, uncertainty
over the scope of publication contempt
may result in too robust an approach
being taken which may pose a risk to fair trial rights.
When those
reporting on events get it wrong and compromise a person’s fair trial
rights, courts cannot adequately remedy
this after the fact by holding those
responsible in contempt of court. When this occurs before or during a
trial, the trial
may have to be abandoned and the jury discharged at
significant cost to the state and the parties involved. As already noted,
abandoning a trial also impacts upon complainants and their families, the
defendant and other witnesses who have to endure
the stress of a trial all
over again.204 When the breach of fair trial rights is not discovered
until after the trial in which the defendant has been convicted, the
conviction
may be unsafe and may have to be set aside and a retrial ordered
with further cost consequences.
(b) Real risk test
2.52
There have been issues around how the Court applies the real risk
test. Under this test, the Court must assess the tendency
of a publication
to prejudice the administration of justice. The test does not require the
publication actually to compromise
fair trial rights or, in the civil
context, actually deter a litigant. The Commission suggested in the
Issues Paper
that there should be clearer separation between (1)
assessing whether something poses a risk and (2) determining whether
that
risk can be or has been mitigated. The question whether a publication is in
contempt and the question whether the risk can be
mitigated so the trial is
ultimately fair are separate questions. The Commission suggested these
questions may have become confused
at times. The second question is relevant
only to determining whether a prosecution should be stayed or whether there
has been
a miscarriage of justice, not whether the publication was in
contempt.205
(c) New media
2.53
New means of sharing information in the internet age have changed
the way we access information. As mentioned earlier,
anybody may publish
information and post images and video at any time.206 This
has broadened the application of contempt laws significantly and strengthens
the arguments for having clear and readily
accessible law.
Proposals and submissions
2.54
In the Issues Paper the Commission proposed replacing the common
law of contempt with statutory provisions. This would
provide greater
certainty to the law governing publication contempt. It would assist in
addressing the other issues identified.
A statutory offence would provide an
opportunity to clarify and reshape the law and would have the important
advantage of separating
prosecutions for contempt out from the affected trial.
The Commission favoured addressing issues around the scope of publication
contempt by focusing more on statutory prevention, by temporarily suppressing
publication of information, and less on
contempt.207
204 See above at [2.7].
205 Law Commission Contempt in Modern New Zealand (NZLC IP36, 2014) at [4.45]. The test for miscarriage of justice is “whether there has been actual prejudice, its extent, and whether there has been a miscarriage of justice, or a real risk one has occurred”: Solicitor-General v TV3 Network Services Ltd, above n 130, at 410. The test for contempt of court has a lower threshold than the test that applies for a miscarriage of justice but uses similar language.
206 See chapter 1 at [1.51] and chapter 2 at [2.16] and [2.24].
207 It is well-established law that where publication of certain
information would give rise to a real risk of prejudice to
a fair trial right,
freedom of expression may be temporarily limited by a suppression order in order
to avoid that risk: Siemer v Solicitor-General [2013], above n 119, at
[158].
Reforming the law of contempt of court: A modern statute 47
CHAPTER 2: Publication contempt
2.55
The Issues Paper therefore proposed replacing the common law of
publication contempt with statutory provisions that:
(a)
(b) (c) (d) (e)
Prohibit the publication or reporting of a defendant’s
previous convictions and any concurrent charges faced during
a specific
pre-trial period – unless a court makes an order permitting publication
in a particular case.208 Breach of this provision would be an
offence.209
Provide a power for the courts to make orders
prohibiting the publication of any other information during the specified
pre-trial period if satisfied that suppression of that information is
necessary to protect a fair trial. Breach of an
order would be an
offence.210
Provide a power for the courts to make take
down orders where information that would breach the prohibition in (a)
or
breach an order made under (b) was already publicly accessible
through the internet. Breach of an order would be an
offence.211
Create a new offence, in substitution for common
law publication contempt, covering any publication that created a real risk
of interference with the administration of justice by prejudicing a fair
trial.212 This is essentially the current common law
test.
Provide that breaches of the offence provisions would all be
prosecuted by laying a charge under the Criminal Procedure Act 2011.
2.56
We discuss this package of reforms below together with feedback we
received from submitters.
Statutory provision temporarily prohibiting publication of previous
convictions
2.57
2.58
2.59
The Issues Paper proposed prohibiting the publication or reporting of a
defendant’s previous convictions, and any concurrent
charges faced, during
a specified pre-trial period unless a court permitted publication in a
particular case.213 It would be an offence for anyone to breach
the prohibition.
Publication of previous convictions and any
concurrent charges is information that would normally give rise to a real
risk
of prejudice to a fair trial and would normally be contempt.
Traditionally, the common law has excluded evidence of previous
convictions (with some exceptions) as unduly prejudicial and therefore
contrary to a fair trial.214 The Issues Paper argued that the
potential harm arising from disclosing this information justified the
proposed prohibition
on publishing or reporting this information during the
pre-trial period. The courts have also been clear that freedom of
expression
rights yield to fair trial rights. The Supreme Court in the
second Siemer case said that temporary limitation by a suppression order
in order to avoid risk to a fair trial “recognises the special
importance
of fair trial rights”.215
The proposed prohibition would
restrict the freedom of the media and others to publish material more than
contempt currently does,
but it would clarify the obligations of those
publishing material pre-trial. The proposal would address the problem
that arises from the absence of
208 Publication of matters relating to bail and matters dealt with at any bail hearings are already covered by a similar type of prohibition on reporting contained in s 19 of the Bail Act 2000, and that regime would continue to apply to matters covered there.
209 Law Commission, above n 205, at [4.71(a)].
210 At [4.71(b)].
211 At [4.72].
212 At [4.71(c)].
213 This new provision would be similar to the automatic identity suppression provisions in ss 201, 203 and 204 of the Criminal Procedure Act
2011. Note that matters relating to bail are already covered under the Bail Act 2000.
214 Gisborne Herald Co Ltd v Solicitor-General, above n 122, at 568.
215 Siemer v Solicitor-General [2013], above n 119, at
[158].
48 Law Commission Report
2.60
2.61
2.62
2.63
2.64
2.65
any bright lines in the common law of contempt. It would effectively
deter publications that jeopardise a fair trial. As
the majority of the
Supreme Court in the second Siemer case said,216 the media may
be “neither dispassionate nor fully informed”, and may sometimes
make the wrong judgements on what to publish.
This consequentially prejudices
criminal trials. There would be less risk for publishers who would no longer
be called on to exercise
judgement over where the courts might draw the line in
any particular case.
Under the proposal the prohibition would apply
unless the court made an order permitting publication. There would be
scope to apply to the Court for permission to publish where that would not
prejudice a fair trial. The prohibition would also
be limited to the period
prior to the commencement of the trial.
Some submitters expressed
significant opposition to this proposal, but there was also some
support. The three media organisations
that made submissions raised concerns
over the blanket nature of the prohibition and also over how it would work. The
Crown Law
Office also said it was not convinced that a statutory prohibition
was either necessary or workable.
In summary the concerns submitters
raised were:
. The fact of concurrent charges or previous
convictions will not always be so prejudicial that
it should not be published – a blanket prohibition is too blunt
an instrument.
. The risk that the prohibition
could be easily (and inadvertently) breached, for example,
where media were not aware that charges had been laid or were about to
be laid.
. How would a prohibition deal with
existing publications that already contained the
information?
. Uncertainty over when the
defined period should start and end. For example, should it start
from the time when charges were imminent or an arrest was
made?
These submitters also suggested that if the courts had the
power to suppress any potentially prejudicial information and
to make take
down orders that would allow for a tailored approach for every case and would
be better than a blanket prohibition.
Other submitters, however, were
supportive of the proposed prohibition. The Auckland District Law Society
Incorporated submitted
the prohibition should apply from the earlier of the
date of arrest or the date charges were laid. It supported the proposal
because of the significant inequality of arms between the state and news
media, and a defendant. In its view, pre-trial
publicity can increase this
inequality and increase the risk of prejudice. The Community Justice Project
supported the clarity
the prohibition would bring to the law and the reduced
risk that defendants would face unfairness. Two barristers in their
joint
submission went further and said that there is no public interest in naming a
person prior to their first Court appearance
and that it should be an offence to
do so.
The remaining submitters, including the New Zealand Law Society
(NZLS) and the Police, did not express a view on the desirability
of the
prohibition but raised practical issues around its application. The NZLS said
that some prior convictions and uncharged
criminal conduct could be adduced
in evidence as part of the prosecution case, so publication of some of the
material caught
by the prohibition would not be contempt. The Police raised
definitional issues around the meaning of “publish” because
it was
concerned that disclosure through its vetting role might otherwise be caught.
The District Court Judges in their comments
also expressed concern that
the proposed prohibition would increase work for trial judges who would
have to consider
216 Siemer v Solicitor-General [2013], above n 119, at
[173].
Reforming the law of contempt of court: A modern statute 49
CHAPTER 2: Publication contempt
applications to allow convictions to be published. They also noted, however,
that the proposals around suppression orders (below)
would increase court
work, particularly if the media were able to make applications.
Statutory suppression and take down powers
2.66
2.67
2.68
The Issues Paper proposed a new statutory provision giving the
court power to make a temporary suppression order prohibiting
the
publication of any information during the period leading up to and during the
trial if the court were satisfied that such an
order was necessary to protect
a person’s right to a fair trial. Breach of such an order would itself be
an offence.
The Issues Paper also proposed a new statutory provision
enabling courts to make take down orders during the period leading
up to
and during the trial. Courts could make a take down order, for example,
against an online content host requiring
it to take down or disable public
access to specified material if the court was satisfied such an order was
necessary to
protect a person’s right to a fair trial. Courts have,
on occasion, exercised their inherent authority or implied powers
to make
take down orders requiring the media to take down historical articles that
may impact on a trial.217 A take down order is a temporary measure
and, under the proposal, it would be an offence for a person to fail to comply
with any
such order.
Submitters showed a degree of support for these
proposals. Some said the provisions should ensure that the level of
suppression
was kept to the minimum needed to support a fair trial. Some
favoured the real risk test being the standard that would
be applied
by the courts. Submissions from media organisations raised the problem of
not knowing about existing suppression
orders and strongly supported a
centralised electronic register of suppression orders to facilitate
compliance. As discussed
later at [2.86], the Commission has previously
supported the establishment of such a register.
Offence of real risk of prejudice to a fair trial
2.69
2.70
2.71
2.72
The Issues Paper proposed the common law be replaced by a new offence
covering publications that posed a real risk of prejudicing
a fair trial. The
new offence would essentially be a statutory form of contempt and would be
prosecuted as an ordinary offence under
the Criminal Procedure Act.
The
Commission suggested the new offence should only cover interference with fair
trial rights rather than publications that could
interfere with the
administration of justice in other ways. This was because the Commission
considered there was uncertainty
over whether these other systemic types of
interference were still relevant and whether they should be
retained.
Submitters were mainly in support of retaining the real
risk test, but in a statutory offence provision. Some submitters
were,
however, concerned that the way the Commission had paraphrased the test
in the Issues Paper suggested the Commission
was proposing to lower the
threshold and that any such lowering would potentially have a chilling
effect on the media
and free speech. The majority of submissions,
including those from media organisations, all considered that the real risk
test should remain.
Some submitters disagreed with the proposal that
the new criminal offence be confined to fair trial rights. They suggested
that, like the common law, the offence should also capture
other
217 See for example L v R, above n 152, at [1], [4] and [9]. In
this case the Court of Appeal considered whether the High Court had correctly
revoked take
down orders it had earlier made requiring media entities to
take down historical articles about a defendant facing a retrial.
The
articles had been lawfully published at the time of publication but the High
Court ordered the media to remove them because
of the risk of prejudice at the
retrial. The Court later revoked the orders once it was satisfied that a
juror would have to
actively search to find the articles. The Court of Appeal
held the orders had been correctly revoked and dismissed the appeal.
50 Law Commission Report
risks to the administration of justice. Their concern was that the Commission would leave a gap if the common law were abolished and the new replacement offence only covered interference with a fair trial. Crown Law, for example, noted that common law publication contempt was not focused so much on a fair trial as it was on the wider justice process. Crown Law suggested using the formulation in section 1 of the Contempt of Court Act 1981 (UK), which refers to interfering with “the course of justice in particular legal proceedings”.
RECOMMENDED APPROACH
2.73
In light of the feedback the Commission received and subsequent
consideration following further discussions, we have decided
to modify the
approach initially put forward in the Issues Paper.
Temporary prohibition on publication of previous convictions and
concurrent charges
2.74
2.75
2.76
2.77
We have considered carefully the concerns raised by submitters, but
continue to support enacting a statutory provision
prohibiting publication of
a defendant’s previous convictions and any concurrent charges faced
during a specified pre-trial
period unless a court permits publication. We
consider the benefit of greater clarity and certainty in the law
outweighs
concern over editorial freedom for publishers to exercise their
own judgement about what material poses a risk to a fair
trial and whether a
prosecution is likely if they publish it. In an era where almost anyone can
publish almost anything they want
through the internet and social media, there
are significant risks to the administration of justice in relying on people to
exercise
their own editorial judgement.
We therefore recommend enacting
a prohibition on the publication or reporting of a defendant’s previous
convictions and any
concurrent charges faced during the period up to the start
of the trial. The prohibition would begin when the defendant is arrested
and
would remain until the beginning of the trial, at which point the trial
court would review it and could lift, modify
or extend the prohibition. We
consider that the prohibition should apply from arrest because that is the
earliest clear and readily
determinable point.
At common law there is
uncertainty around when the period begins. It is normally contempt to publish
material that is prejudicial
once the laying of charges is highly likely or
is imminent or pending.218 Introducing a specific point in time,
the person’s arrest, makes the law much more certain. We
considered the alternative
approach taken in the United Kingdom, which
involves the concept of “active” criminal proceedings and a list
of provisions identifying when proceedings become active.219 In
our view the difficulty with this approach is that it has not created
the level of certainty we prefer.220 We acknowledge that there
will be some occasions when highly prejudicial material may be published
prior to arrest, but the
proposed prohibition will cover most
situations.
Under our recommendation the pre-trial court and the
trial court would be free to make an order lifting or modifying
the
restrictions. The prohibition would be a short-term ban that would protect a
defendant’s rights until a court could
adequately assess the potential
impact of the information on a future trial. Under the provision we are
recommending, accredited
news media will be able to apply to lift or vary the
ban.
218 Siemer v Solicitor-General [2013], above n 119, at [114]; Television New Zealand Ltd v Solicitor-General, above n 120, at 3.
219 Contempt of Court Act 1981, s 2(3) and Schedule 1.
220 See: David Eady and ATH Smith Arlidge, Eady and Smith on Contempt (4th ed, Sweet & Maxwell, London, 2011) at [5-62] and [5-67]–[5-103];
Attorney-General v News Group Newspapers Ltd plc [1989] QB 110, [1988] 2 All ER 906; Attorney-General v Sports Newspapers [1991] 1 WLR
1194 (QB), [1992] 1 All ER 503.
Reforming the law of contempt of court: A modern statute 51
CHAPTER 2: Publication contempt
2.78
2.79
2.80
2.81
It is also important to consider how effectively and efficiently
the court can modify or discontinue a statutory
prohibition compared
to making suppression orders to prevent publication of convictions or
concurrent charges on a case-by-case
basis. The process of making orders in each
case would be more time consuming and costly and would place a greater burden on
trial
courts. It would put the onus on defence or prosecuting counsel to
obtain, or on the court to make, a suppression order
in respect of information
that has such a strong tendency to interfere with the administration of
justice. It is inefficient and
the risk of publication in error is also too
high. The recommended prohibition, which the court can vary or discharge, is
more
efficient and workable.
We also consider the concern that a
prohibition is overly broad and is a blunt instrument can be reasonably well
addressed by
refining the proposal. The proposed new provision
(clause
8) in the draft Bill has no retrospective effect so historical
reports of convictions that remain in existence and were lawful
when first
published will not be caught. The prohibition applies to new reporting and
news that is contemporaneous with
the present charges. It would also apply
to deliberate hypertext linking to any earlier or historical reports that
contain
previous convictions.
Historical reports that remain
accessible, whether electronically or otherwise, and were lawful at the time
they were made
would be excluded from the prohibition and would instead
be addressed by the courts where necessary by the making of
a take down
order. We discuss take down orders further below.221
The
provision should also only cover situations where a person has been arrested for
an offence for which he or she could be tried
by a jury. This means that the
prohibition would not apply in relation to what are known as category 1 and 2
offences, which involve
less serious offending and which are normally tried
by a judge alone in the District Court.222
Statutory suppression orders
2.82
We recommend enacting new provisions giving the courts statutory powers to
make temporary suppression orders prohibiting publication
of other information
during the period leading up to and during the trial. Courts would be able to
make such orders at any time
where appropriate after a person is arrested.
Temporary suppression orders would be available to prohibit, for example,
the
publication of information indicating bad character, including criminal
or gang affiliations of the defendant or a witness,
where the relevant
court is satisfied that this is necessary to protect a person’s
right to a fair trial. Another
example would be photographic or pictorial
information where identity may potentially be in issue at trial. We recommend,
as
discussed in chapter 7, that it should be an ordinary offence for anyone to
breach a suppression order.
Criminal Procedure Act 2011 as a model
2.83
We recommend the new provision be modelled on the statutory suppression
provisions in sections 200 and 202 of the Criminal
Procedure Act. The
general provisions relating to suppression orders provided for in
sections 207 to 210 of that
Act should also apply to suppression
orders made under our recommended new provision. As provided in section 210
of the
Criminal Procedure Act, the accredited media should have standing
to initiate, and be heard in relation to, any application
for a suppression
order or any application to extend a
221 See [2.89]–[2.91].
222 Criminal Procedure Act 2011, s 6(1): a category 1 offence is
punishable with a maximum penalty of a fine only, and a category
2 offence
is punishable by a term of imprisonment of no more than two years or a
community-based sentence.
52 Law Commission Report
2.84
2.85
suppression order. There are advantages in having a consistent approach to
suppression orders and the Criminal Procedure Act already
provides a model in
this area.
There should, however, be one important exception to simply
mirroring the Criminal Procedure Act provisions. Suppression orders
made under
the new provision should always be only for limited duration and never
permanent. The justification for suppression
here is to protect the right
to a fair trial, so when the trial and all rights of appeal are
exhausted, there is no
justification for continuing to suppress information on
that ground. The courts may of course decide that there are other
legitimate grounds for permanently suppressing some information, but
information should not be permanently suppressed after
all proceedings
relating to the offence (including appeals) have been completed on the ground
it interferes with a fair trial.
For consistency, the offence provision
should be the same as that in section 211 of the Criminal Procedure Act 2011.
It should
provide for strict liability where any person
publishes information in breach of a suppression order, punishable by
a fine,
and a more serious offence, with a higher penalty, where any person
knowingly or recklessly publishes information
in breach of a suppression
order. The penalties for breaches of suppression orders should be similar
to those in section
211. We discuss our overall approach to
penalties further in chapter 7.223
Central register of suppression orders
2.86
2.87
2.88
The Law Commission’s 2009 report Suppressing Names and
Evidence recommended “the development of a national register of
suppression orders should be advanced as a matter of high
priority”.224 At that stage there was strong support in
submissions on that reference for a central register of suppression orders to
allow
the media to check the terms and status of suppression orders the
courts had made. Media organisations submitted that the
ability of the
media to obtain timely and accurate information from the court in relation to
the existence, duration and scope
of suppression orders would help to prevent
inadvertent breaches.
Following the release of that report, the
Ministry of Justice undertook some preliminary work and investigated ways of
improving
the media’s access to information about suppression orders. The
development of a suppression orders register, however,
was not considered a
priority at that stage and was not pursued.
In 2016, we asked the
Ministry for an update on whether it was undertaking any further work on
developing a register. The Ministry
advised that it had done no further work.
The Ministry considered a register would be costly and at that stage did not
consider
the benefits justified the cost. While we certainly recognise the
need for a register to be cost effective, we consider there
would be benefits
in having a register. They would include avoiding the costs associated
with inadvertent breaches of suppression
orders and the costs associated with
court staff having to check the status of suppression orders. We would
therefore encourage
the Ministry to review the position periodically.
Take down orders
2.89
We also recommend new statutory provisions providing for take
down orders where information breaching any temporary
suppression order
is already publicly accessible on the internet. We recommend it should be an
offence for anyone to breach
a take down order. At present, courts make
take down orders under their inherent authority or implied
powers.225
223 See chapter 7 at [7.60]–[7.66].
224 Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at 5.
225 See for example L v R, above n 152.
Reforming the law of contempt of court: A modern statute 53
CHAPTER 2: Publication contempt
2.90
2.91
Breaches of these orders are therefore not statutory offences, but are
treated as contempt of court. A statutory regime
would enable such
issues to be addressed comprehensively and provide a straightforward regime
for enforcement.
We considered whether the prosecution should be
obliged in some way to review what potentially prejudicial information
is publicly accessible through the internet before a trial to ensure that it
makes an application for appropriate take down orders
where they are warranted.
We have, however, concluded that it is better to address this, as a
matter of practice, in the
Solicitor-General’s Prosecution Guidelines
than including it in legislation. We think it should be standard practice
for
Crown prosecutors to make inquiries and consider what information
currently in the public domain may be prejudicial. This is
a matter that
ultimately goes to trial fairness, so the responsibility for reviewing
existing information or seeking its removal
should not fall solely on the
defence.
We acknowledge that take down orders “may not be a
perfect or complete solution, and will not prevent the determined
internet
user”,226 but we consider they will go some way towards
minimising the impact of an offending publication. Court orders of this
kind
will deter the majority of users and thus will be efficient and cost
effective. Where the relevant information is published
outside New Zealand or
on a server hosted outside New Zealand, determined parties in New Zealand
will still be able to access
the information, but the take down orders
should prevent them from lawfully disseminating that information in New
Zealand.227
Criminal offence – partial replacement of the common
law
2.92
2.93
2.94
We recommend a new offence to replace the common law partially. Under the
new provision in clause 14 of the Bill, it would be an
offence for any person
intentionally to publish information that is relevant to any trial where
there is a real risk that
the publication of that information could
prejudice a fair trial. We intend this new offence to be a
statutory
replacement for the current publication contempt as it applies
to a fair trial. As is currently the case, the mental
element of
intention would apply only to the act of publication and there would be no
requirement to prove any intent to prejudice
the trial.
Where the act of
publication is somehow accidental, for example, where the wrong version or an
earlier draft of an article, which
included offending material, was published
in error or uploaded by mistake, the court would need to determine whether
the mental
element was satisfied and the offence committed. There should,
however, be defences available to cover situations where there
is an absence
of fault. For example, where a person has taken reasonable care before
publishing, but was genuinely
unaware of the existence of a trial, the
person should have a defence.
As we have already noted, the common
law test for when the protected pre-trial period begins is uncertain.228
The courts have said it begins once the laying of charges is
highly likely or imminent.229 This test evolved to cover
situations where an alleged offender was known, but had evaded arrest by
the Police. For reasons
of certainty, however, we recommend that the new
offence provision should expressly define the point in time from which the
publication of information that could pose a real risk of prejudice to a fair
trial will apply. We consider that it
226 ATH Smith Reforming the New Zealand Law of Contempt: An Issues/Discussion Paper (Crown Law Office, April 2011) at [2.69].
227 Police v Slater [2011] DCR 6 at [72]–[74]; Solicitor-General of New Zealand v Krieger [2014] NZHC 172 at [49]. Mr Krieger provided hyperlinks to overseas websites. The Court considered that disclosure of the information occurred in New Zealand when people downloaded the information.
228 See above at [2.76].
229 Television New Zealand Ltd v Solicitor-General, above n 120, at
3.
54 Law Commission Report
2.95
2.96
2.97
should be the earliest clearly identifiable date so recommend that the
prohibition on publication should apply from the time a person
is
arrested.
We consider that the new offence provision should
replicate the current broad approach in terms of who can potentially be
charged in respect of a publication. Currently, at common law, all persons who
contribute to the publication can potentially
be prosecuted for
contempt.230
In the case of the news media, this includes
the media company, the editor and the reporter involved.231
In practice, however, it is rare for contempt proceedings to be brought
against them all, and in some the media company has
accepted
responsibility for the reporter’s actions.232
The new
offence in clause 14 of the draft Bill is intended to continue to cover
everyone who contributes to the offending publication.
We consider that
whether or not any person involved in the publication should be charged
with the offence should be a matter
for prosecutorial discretion exercised
in accordance with the Solicitor-General’s Prosecution
Guidelines.
Digital media and online publication on websites have,
however, raised questions around whether distributors such as online
hosts
should be liable for content whether they had knowledge or not. We
consider that distributors (including online hosts)
should have available a
defence if they had no knowledge that the publication contained the offending
material and they had
taken reasonable care. Clause 14(4)(b) of the Bill
reflects this.
For reasons we explore later in chapter 7,233
we have reached the view that Parliament should not completely abolish
the common law. Rather, the common law should have a
residual role in
respect of areas not covered by the recommended new offence. This addresses
any concern that abolishing the
common law entirely could leave a gap in
respect of publications that affect civil proceedings. As we discuss later,
the High
Court should retain its inherent jurisdiction to consider
publications that may constitute contempt of civil proceedings and
interfere
with access to the courts or undermine public confidence in the courts.
RECOMMENDATIONS
R1 For the purpose of preserving the right to a fair trial, a new statutory provision should be enacted prohibiting publication or reporting of an arrested person’s previous convictions and any concurrent charges. The provision should require the pre-trial or trial court to keep the prohibition under review and authorise the court to lift, extend or vary the prohibition as necessary in any particular case. The prohibition should apply from the time a person is arrested and only where the person is arrested for an offence for which he or she is liable to be tried by a jury (a category 3 or 4 offence).
R2 A new statutory provision should authorise a court to
make an order postponing publication of other information if the court is
satisfied that this appears to be necessary to avoid a real risk of prejudice
to a fair trial. The court might make such an order
at any time after a person
is arrested and before the trial has been completed and must make it for a
limited period, not extending
beyond the completion of the
proceedings.
230 Cheer, above n 133, at 553.
231 Cheer, above n 133, at 553. There have been a few cases in which editors and reporters were personally proceeded against for contempt; see for example Solicitor-General v Fairfax New Zealand Ltd, above n 130, where the editor of the Dominion Post, Timothy Pankhurst, was charged as well as the publisher.
232 See for example, Solicitor-General v Smith, above n 141, at [119] where Radio New Zealand accepted responsibility for the statements of its presenter Ms Linda Clarke.
233 Chapter 7 at [7.18]–[7.21].
Reforming the law of contempt of court: A modern statute 55
CHAPTER 2: Publication contempt
R3 A new statutory provision should authorise a court to
make an order that an online content host take down or disable public access
to any specific information covered by the statutory prohibition in R1, or any
suppression order made under R2.
R4 A provision modelled on section 210 of the Criminal
Procedure Act 2011 should give members of accredited media, and any
other
person reporting on the proceedings with the permission of the court,
standing to initiate or be heard on any application
for an order in respect
of R1 to R3 or any application to renew, vary or revoke any order.
R5 Subpart 7 of Part 6 of the Criminal Procedure Act 2011
should be amended to give a right of appeal against any decision to make or
refuse to make a suppression order under R2 or R3 or to renew, vary, or revoke
a suppression order under R2 or R3 or lift, extend
or vary the prohibition
in R1.
R6 A new statutory offence provision modelled on section 211 of the Criminal Procedure Act
2011 should provide:
(a)
(b)
It is an offence for any person, knowingly or recklessly, to publish
material in breach of the statutory prohibition in R1 or any
suppression
order under R2 or take down order under R3.
The offence in (a)
should be punishable:
(i)
(ii)
in the case of an individual, by a term of imprisonment not exceeding 6
months or a fine not exceeding $25,000; or
in the case of a body
corporate, by a fine not exceeding $100,000.
(c)
(d)
It is a strict liability offence for any person to publish material in breach
of the statutory prohibition in R1 or any suppression
order under R2 or take
down order under R3.
The offence in (c) should be
punishable:
(i) (ii)
in the case of an individual, by a fine not exceeding $10,000;
or
in the case of a body corporate, by a fine not exceeding
$40,000.
R7 There should be a new offence to replace the
common law contempt of publishing information that interferes with
a
fair trial, which should be abolished: see R61 below. The new offence should
apply from the time a person (the arrested
person) is arrested for an
offence for which he or she is liable to be tried by a jury (a category 3 or 4
offence). Under the
new offence provision, a person would commit an offence
if:
(a)
(b)
he or she intentionally publishes information that is relevant to
an arrested person’s trial; and
there is a real risk that the publication prejudices the arrested
person’s right to a fair trial.
R8 The maximum penalty for the offence in R7 should be a
term of imprisonment for up to 6 months or a fine not exceeding $25,000,
or
in the case of a body corporate a fine not exceeding
$100,000.
56 Law Commission Report
R9 It should be a defence for a person prosecuted for the offence
in R7 to prove on the balance of probabilities that:
(a) (b)
(c) (d)
after taking all reasonable care the person was unaware and had no
reason to be aware of the possibility or existence of the trial;
or
the
person was the online host or distributor of the publication and after
taking all reasonable care he or she
was unaware and had no reason
to be aware that it contained the information that created a real risk of
prejudicing the
arrested person’s right to a fair trial; or
the
publication was a good faith contribution to a discussion of public affairs;
or
the publication was a fair and accurate report of court proceedings
held in public and published at the time and in good faith.
R10
Appeals in respect of the offences in R6 and R7 should be under subpart 3
(Appeals against conviction) and subpart 4 (Appeals
against sentence) and
not under subpart 5 (Appeals against finding of or sentence for contempt of
court) of Part 6 of the Criminal
Procedure Act
2011 because the
offences in R6 and R7 are ordinary offences and not contempt of
court.
Reforming the law of contempt of court: A modern statute 57
CHAPTER 3: Disruptive behaviour in the courtroom
Chapter 3
Disruptive behaviour in the courtroom
INTRODUCTION
3.1
3.2
3.3
Disruptive behaviour in the courtroom can “pose an immediate and
direct threat to the due administration of justice”.234
When the behaviour of a person, who may be interrupting
proceedings or refusing to comply with judicial directions
in court,
threatens the orderly and due disposition of court business, the presiding
judge may have that person removed from
the courtroom, held in contempt of
court and punished by imprisonment or fine. Historically we know this as
contempt in the face
of the court.235 As Lord Denning MR put it in
Morris v Crown Office:236
The phrase “contempt in the face of the court” has a quaint
old fashioned ring about it; but the importance of
it is this: of all the
places where law and order must be maintained, it is here in the courts.
The course of justice must
not be deflected or interfered with.
People
do not expect judges to hold someone in contempt of court for low level
interruptions.237
Most everyday low-level interruptions are and should be able to be managed by
other means. In some situations, the judge may be able
to deal with the
disruptive behaviour with a warning or by taking a short adjournment.238
Indeed, sometimes the threat of contempt is enough to allow the judge
to retain or regain authority over his or her court. People
also do not expect
judges to use contempt of court to regulate criminal conduct, for example,
assaulting or threating a judge
or damaging court property. Assaults, threats
and damage to property are offences that should be prosecuted and punished
under
the criminal law.239
People also do not expect judges
to use contempt of court to regulate tikanga Māori and the use of te reo
Māori in the
courtroom. In the Issues Paper the Commission identified
that tikanga and the use of te reo Māori in the courts has not always
been
welcomed. We noted that in Mair v District Court at Wanganui the
undertaking of a karakia (prayer), despite the District Court Judge’s
directions not to, resulted in a finding of contempt
by the Judge and the
imposition of a prison sentence.240 We also mentioned Kohu v
Police in which a District Court Judge found Māori defendants who
wished to include tikanga in the courtroom to be in contempt
and fined
them
heavily.241
234 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [34].
235 McAllister v Solicitor-General [2013] NZHC 2217 at [24].
236 Morris v Crown Office [1970] 2 QB 114 at 122B–C.
237 Re Swaptronics [1998] All ER (D) 407 (Ch) at [20] per Laddie J – “it is all too easy for a court to be impressed by its own status”; SP Charles QC “Discipline within the Legal Profession” (paper presented to a meeting of the Medico-Legal Society, Melbourne, March 1977) at 82.
238 Guidance for judges in the High Court also advises that it may be useful to turn a deaf ear and/or make an appeal to protesters to observe the dignity of the Court.
239 See Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [8.15] where the Commission concluded it would be preferable for assaults and threats to be dealt with by the ordinary criminal process rather than by way of contempt. The ordinary criminal process has the benefit of a trial and other protections that apply when someone is charged under the general criminal law. The Commission confirmed this position in 2015: Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC IP29, 2012) at [5.15]–[5.18].
240 Mair v District Court at Wanganui [1996] 1 NZLR 556 (HC).
241 Kohu v Police (1989) 5 CRNZ 194 (HC).
58 Law Commission Report
3.4
3.5
3.6
While the contempt authority or power was sometimes used in this way in the
past, tikanga and te reo are recognised positively in
courts today.242
Furthermore, the use of Māori is authorised by section 7 of the Te
Ture mō Te Reo Māori 2016 Māori Language Act
2016.
The
comments on the Commission's Issues Paper provided by the Judges of the
District Courts set out some of the more prominent
initiatives that are
underway in this area, which include: opening and closing of the courts
in te reo, a revised tikanga
education programme, use of pōwhiri at
the swearing-in ceremonies of all new judges, and the establishment of the
Kaupapa
Māori Advisory Group, a judicial committee whose
functions include promoting judicial understanding and application
of tikanga
Māori and ensuring judges are equipped to engage Māori court
users with confidence. Similar developments
are occurring in the Senior
Courts too.
We have deliberately moved away from using the historical
term “contempt in the face of the court” and use instead
“disruptive behaviour in the courtroom” because we think the
latter better captures the concept.
CURRENT LAW
3.7
3.8
3.9
3.10
The power to punish disruptive behaviour in the courtroom takes both
common law and statutory forms. As already noted,243 all courts
have authority or power enabling them to do what is necessary to exercise
their functions, powers and duties
and to control their own
processes.
Before 1 March 2017, a variety of empowering
statutory provisions covered this area.244
Problematically, these statutory provisions overlapped and differed slightly
in scope. To address this, the Law Commission in
its 2012 report
Review of the Judicature Act 1908: Towards a New Courts Act
recommended Parliament should rationalise the various provisions into a
standardised provision.245 That recommendation was accepted and
relevant provisions were included in legislation modernising the courts.
The Judicature
Modernisation Bill 2013 was divided at the final stages into a
range of Bills, which respectively became the District Court Act
2016 and
the Senior Courts Act 2016. The new Acts came into force on 1 March
2017.
Section 165 of the Senior Courts Act 2016 (set out below at
[3.14]) covers contempt in the Supreme Court, the Court of
Appeal and the
High Court, and an identical section, section 212 of the District Court
Act 2016, applies to the District
Court (including the Family Court and the
Youth Court). These provisions replicate the former statutory contempt of
court
provision in section 365 of the Criminal Procedure Act 2011.
Parliament also made amendments to the Employment Relations
Act 2000, Resource
Management Act 1991, and Te Ture Whenua Maori Act 1993, to ensure one
standardised provision for contempt of
court applies across the Employment
Court, Environment Court, Māori Land Court and the Māori Appellate
Court.246
The 2012 Commission report Review of the
Judicature Act 1908: Towards a New Courts Act dealt only with Courts and not
tribunals. The standardisation exercise undertaken in the
Judicature
242 Also note McGuire v Hastings District Council [2001] UKPC 43; [2002] 2 NZLR 577 (PC) in which a Māori waiata was performed in the Privy Council at the end of the hearing to mark the occasion of The Right Honourable Lord Cooke of Thorndon’s last sitting at the Judicial Committee of the Privy Council.
243 See chapter 1 at [1.14]–[1.16]; McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276; Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [114].
244 These provisions were the Supreme Court Act 2003, s 35; Criminal Procedure Act 2011, s 365; Judicature Act 1908, s 56C; District Courts Act
1947, s 112. Note all of these provisions were repealed on 1 March 2017 and have been replaced by the District Court Act 2016, s 212 and the
Senior Courts Act 2016, s 165.
245 Law Commission Review of the Judicature Act 1908: Towards a New Courts Act, above n 239, at [9.6].
246 Employment Relations Act 2000, s 196; Resource Management Act 1991, s
282; Te Ture Whenua Maori Act 1993, s 90.
Reforming the law of contempt of court: A modern statute 59
CHAPTER 3: Disruptive behaviour in the courtroom
Modernisation Bill did not attempt to rationalise the various tribunal
contempt provisions that remain scattered across the statute
book.
The issue
3.11
3.12
While the contempt of court provisions set out the conduct that can
cause a person to be taken into custody and held
in contempt, and the
penalty that can be imposed for this conduct, the provisions provide no
substantive guidance on procedure.
In its report on the Review of the
Judicature Act 1908: Towards a New Courts Act the Commission noted it
would consider procedure in its contempt reference.247 In the
Issues Paper, Contempt in Modern New Zealand, the Commission raised
the question whether a statute should prescribe a procedure for the courts
and consulted widely on
what such a procedure should be. We set out our
findings and recommendations in this chapter. We also make recommendations
on amending the existing wording of the provisions and penalty levels in
the Senior Courts Act 2016 and the District Court
Act 2016.
We
briefly cover at [3.52]–[3.55] below the position of tribunals and
explain how our recommendations should be applied
to tribunals. Some
tribunals, for example, the Human Rights Tribunal,248 are
essentially courts and therefore have the same or very similar powers as
courts to punish for disruptive behaviour. We
consider our recommendations on
procedure, standardised wording and penalty levels should also apply to these
tribunals.
PROCEDURE
3.13
3.14
Contempt of court involving disruptive behaviour in the courtroom is
subject to a summary procedure that is different from the
process when a
person is charged with a criminal offence.249
There is no formal
charge and no formal plea. There is no independent prosecutorial scrutiny as
there is when a criminal charge
is laid. This reflects the fact that contempt
allegations of this nature are generally dealt with quickly and with a minimum
of
formality.
The contempt of court provision in the Senior Courts Act is
section 165, which provides:
165 Contempt of court
(1)
This section applies if any person—
(a)
(b) (c)
wilfully insults a judicial officer, Registrar, officer of the court, or any
juror, or any witness during his or her sitting or attendance
in court, or in
going to or returning from the court; or
wilfully interrupts the
proceedings of a court or otherwise misbehaves in court; or
wilfully and
without lawful excuse disobeys any order or direction of the court in the
course of the hearing of any proceedings.
(2)
If this section applies,—
(a)
(b)
any constable or officer of the court, with or without the assistance of
any other person, may, by order of a Judge or an Associate
Judge, take the
person into custody and detain him or her until the rising of the court;
and
the Judge or an Associate Judge may, if he or she thinks fit,
sentence the person to—
247 Law Commission Review of the Judicature Act 1908: Towards a New Courts Act, above n 239, at [9.9].
248 Human Rights Act 1993, s 114.
249 McAllister v Solicitor-General, above n 235, at [44].
60 Law Commission Report
(i)
(ii)
imprisonment for a period not exceeding 3 months; or
a fine not
exceeding $1,000 for each offence.
(3)
Nothing in this section limits or affects any power or authority of a court
to punish any person for contempt of court in any case
to which this section
does not apply.
3.15
As noted, this provision replaced the former contempt of court provisions,
such as section 365 of the Criminal Procedure Act, and
sits alongside a
near-identical provision in section 212 of the District Court Act
2016.250 The provision provides that if a person’s actions
are considered contempt of court, a Judge or Associate Judge may direct
that he
or she be held in custody until the rising of the court. In addition, the Judge
or Associate Judge may impose a fine or
period of imprisonment.
Issues Paper and consultation
3.16
3.17
3.18
In the Issues Paper the Commission identified the procedure that the
courts often, but not always, utilise whereby
the judge deals with
the disruption immediately by holding the disruptive person in contempt
and imposing the punishment
on the spot. The Commission expressed
considerable unease with this situation because the judge imposes the
punishment
when there is likely to be high emotion in the
courtroom. The judge “is required to simultaneously assume
the role
of complainant, witness, prosecutor and judge”.251
The
Commission also noted there has not always been consistency in imposing
punishment. Some District Court judges have imposed
relatively high sentences
for contempt of court, which on appeal, have been reduced. For
example:
. 28 days’ imprisonment imposed on a
17-year-old defendant who failed to pay attention to the
proceedings, put his finger in the air to his friends sitting in court and
used the “f” word was reduced to seven
days.252
. Two months’ imprisonment
imposed on a witness who refused to take the oath or give
evidence in court proceedings was reduced to six
weeks.253
. Six weeks’ imprisonment
imposed on a defendant for his angry outburst and use of the
“f”
word in court was reduced to seven days.254
.
Six weeks’ imprisonment imposed on a witness who
refused to answer questions was
quashed on appeal. After the original sentence was imposed the witness
gave evidence. At the time the appeal was heard
the witness had served
three days of the sentence and had given her
evidence.255
Since the publication of the Issues Paper, there
has been a further example. In Forest v R the High Court on appeal
reduced a six week sentence of imprisonment for contempt of court imposed on
the brother of a defendant,
following his outburst while the jury was delivering
its verdict in his brother’s trial, to four weeks.256 The
High Court characterised the offending as “more serious than that which
is simply rude or disruptive in nature”,
but reduced the sentence to
better reflect the defendant’s attempts to make a genuine
apology.
250 These new contempt of court provisions have been modelled on, and closely follow the wording of s 365 of the Criminal Procedure Act 2011.
251 McAllister v Solicitor-General, above n 235, at [44].
252 Wanahi v R HC Hamilton CRI-2007-419-061, 3 May 2007.
253 Pandey v Police HC New Plymouth CRI-2010-433-26, 15 December 2010.
254 Kahu v New Zealand Police [2015] NZHC 1925.
255 Matika v Police [2014] NZHC 1127. At the time the complainant was imprisoned for six weeks, she had a six week old baby who was being breastfed.
256 Forest v R [2016] NZHC 3198.
Reforming the law of contempt of court: A modern statute 61
CHAPTER 3: Disruptive behaviour in the courtroom
3.19
3.20
These factors led the Commission to ask whether the proposed statute
should provide for a procedure by which the judge has
a cooling off period
before punishing a person for contempt. We also invited submissions as to what
the procedure should be.
Among those consulted and those who made
submissions on our Issues Paper, there was a consensus there should be a
procedure
for contempt of court that separated out the citation of the
contempt from the process for determining contempt and imposing punishment.
Citation is the notification given to the individual by the judge that their
conduct is considered contempt, but it is not the
final determination the
conduct is contempt.
CURRENT GUIDANCE
3.21
3.22
We understand judges already receive guidance suggesting they use a
separated procedure for dealing with disruptive behaviour in
their courtroom. In
McAllister v Solicitor-General the High Court confirmed that a
separated or staged procedure should be followed.257 Mr
McAllister was selected to serve on a jury in the District Court. He refused
to take the required oath or affirmation and
was stood down from the jury
panel. When it became apparent that it would not be possible to select a
juror to replace him,
Mr McAllister relented and told the District Court
Judge he could serve after all. The Judge declined the offer and
abandoned the trial. The following day the Judge held Mr McAllister in
contempt and sentenced him to 10 days imprisonment.
Mr McAllister
appealed to the High Court where Lang J held the District Court had not followed
the correct procedure. Although the
judge might use a summary procedure in
determining whether the person was in contempt, and the process was distinct
from the
formal process used when a person is charged with a criminal
offence, Lang J held that some minimum standards must still apply:
[45]
[46]
[47]
... The judge must identify the act or acts giving rise to the
alleged contempt with sufficient particularity to ensure that
the person
understands what is being alleged. The person must also be given the opportunity
to take legal advice so that he or
she understands, and if appropriate has
input into, the process to be followed and the possible range of outcomes. The
judge will
then need to ensure that counsel appointed or engaged to advise the
person is also aware of the nature of the allegations.
It is also
essential, particularly where a sentence of imprisonment is a reasonable
possibility, for the judge to proceed on the
basis of a reliable factual
platform. In many cases this will not be an issue. Where a person has abused or
insulted the judge in
the courtroom, for example, the judge will usually have
observed and heard the events giving rise to the alleged contempt. The
acts in
question are also unlikely to be susceptible to more than one interpretation,
and the offender’s motivation will
usually be obvious. In such cases
there is unlikely to be any need for further factual material to be placed
before the
judge before he or she determines whether an act of contempt has
been committed.
In other cases, however, the physical acts giving rise
to the alleged contempt may not comprise the whole of the relevant factual
matrix. A finding of contempt may depend, for example, upon the judge’s
conclusion as to why a person has acted in a particular
way. In such a case, the
judge will need to ensure that the person is given an adequate opportunity
to provide an explanation
of his or her actions. This may include giving the
person an opportunity to provide the judge with further relevant evidence before
a final decision regarding the issue of contempt is
made.
257 McAllister v Solicitor-General, above n 235. The Court of
Appeal dismissed an application for leave to appeal: McAllister v R
[2014] NZCA 175.
62 Law Commission Report
3.23
3.24
To meet these minimum standards, it would not be possible for a judge to
impose a punishment of imprisonment or a fine at the same
time as citing the
person for contempt and having them removed from the courtroom. The minimum
standards therefore required a separated
summary procedure.
In
McAllister the District Court Judge had provided Mr McAllister with
adequate information about the acts in respect of which he was liable
to be
held in contempt and advised the duty solicitor of the allegations, but
had not adequately considered the new explanations
raised by Mr McAllister
at the hearing. Further, the Judge was considering the imposition of a
custodial sentence and
failed to ensure that Mr McAllister was given an
opportunity to advance important mitigating factors. Justice Lang held
that,
because the Judge had not given this opportunity, there was a risk
the decision was based on an unreliable factual platform.
Justice Lang held
that the appropriate step was for the High Court to consider the evidence
that had since become available,
and found that Mr McAllister had been in
contempt, although not to the extent that the District Court Judge had held
him to
be. Justice Lang considered a sentence of imprisonment was unnecessary
and taking into account the day that Mr McAllister had
spent in the court
cells, the Judge quashed the sentence and substituted a fine of $750.
RECOMMENDED REFORMS
A separated summary procedure
3.25
While there is now High Court authority for a separated process for dealing
with contempt for disruptive behaviour in the courtroom,
we consider it should
be put in statutory form so it is readily accessible and understandable. We see
three steps being necessary:
Step one: citation and, if
necessary, removal from the courtroom;
Step two: hearing;
and
Step three: punishing the disruption.
Step one: citation
3.26
3.27
3.28
The first step would empower a judge to deal immediately with an
in-court interruption by citing the disruptive person
and, if necessary,
having the person removed from the courtroom. The disruptive person would, if
necessary, be held in the court
cells until the rising of the court that day,
or some earlier point that day if the disruptive behaviour is mitigated by an
apology.
The power to remove someone from the courtroom is essential
to ensure courts can progress their business efficiently. The
citation and
any necessary removal may take place any time the judge considers he or she
needs to intervene. From this point
on, the person is on notice that he or
she will have to show why he or she should not be found in contempt and
punished
accordingly.
This first step would allow a judge to deal with an
interruption immediately while also imposing a cooling-off period before making
any finding and imposing further punishment. The cooling- off period should
assist by allowing opportunities for the person cited
to apologise to the court
and the opportunity to obtain independent legal representation. The
cooling-off period also allows
the judge time to reflect on the disruptive
behaviour, consider any apology, and decide whether to set the matter down for
determination.
In many cases steps two and three will not be necessary. For
example, if the person cited returns from the cells and makes an apology
for
his or her behaviour, the judge may decide not to take further action. As the
Judges of the District
Reforming the law of contempt of court: A modern statute 63
CHAPTER 3: Disruptive behaviour in the courtroom
3.29
Court pointed out in their written comments on the Issues Paper, in most
cases a disruption is adequately dealt with by a few hours
in custody and an
apology.
Some judges we discussed this issue with expressed concern
some disruptive conduct that may occur during a trial could require
an
immediate determination of contempt. They suggested to us that during an
ongoing trial such action may be required if
the disruptive person is the
defendant or a witness who is not cooperating, or their disruptive
behaviour reoccurs. We consider
that where the disruptive behaviour is
continuing and cannot be addressed by simply removing the person from the
court,
the judge may exercise his or her authority or power repeatedly
by citing the person and, if necessary, ordering him
or her to be placed in
the cells until the rising of the court that day. Where the ongoing
disruptive behaviour is that
of a witness, a judge should use section 165 of
the Criminal Procedure Act, which empowers a judge to imprison a witness who
refuses to give evidence.258
Step two: hearing
3.30
3.31
Step two is the hearing to determine whether any further action is
required. The case would need to be set down for determination
if, after
reflection and consideration of any apology, the judge decides the conduct of
the person cited for disruption may be sufficiently
serious to justify further
punishment.
As discussed above, McAllister v Solicitor-General
259 outlines the minimum standards that must apply in this
step. First, the judge must identify the act or acts with sufficient
particularity to ensure that the person, and any counsel appointed or engaged
to advise the person, understand the nature of the
allegations. The person
should receive the opportunity to take independent legal advice. Second, the
judge should proceed
on the basis of a reliable factual platform. This may
require giving the disruptive person an adequate opportunity to explain
his
or her actions before making a final decision. We recommend statutory
provisions clarifying these minimum standards:260
(a)
(b)
the judge should give written reasons to the person specifying the
behaviour he or she believes may constitute disruptive
behaviour in the
courtroom and makes the person liable for further punishment; and
the
judge may receive any explanation he or she determines helpful to ensure
the case proceeds on a reliable factual platform.
3.32
Once the judge has set the matter down for determination, the
disruptive person, unless in custody for other reasons,
may be released on
bail during the period of adjournment. The Bail Act 2000 should apply, with
the necessary modifications,
as if the person cited were charged with an
offence that carries the penalties required by that Act.
Step three: punishing the disruption
3.33
3.34
If the judge considers the behaviour constitutes disruptive conduct, the
judge may impose a fine or a period of imprisonment. Depending
on the
circumstances, imposition of the punishment may happen at the hearing or at a
later date.
In the past there was uncertainty whether the court could
impose a community-based sentence for contempt. This is because the definition
of offender in the Sentencing Act 2002 expressly
258 Criminal Procedure Act 2011, s 165; Senior Courts Act 2016, s 43; District Court Act 2016, s 102.
259 McAllister v Solicitor-General, above n 235, at [45]–[47].
260 See cl 16(4)(b) and (c) of the draft Bill, Appendix 2.
64 Law Commission Report
3.35
includes a person dealt with for contempt of court,261 while the
relevant sections in the Act only empower the court to impose a
community-based sentence where “the offender
is convicted of an offence
punishable by imprisonment”.262 The High Court has, however,
held recently in two decisions that a community-based sentence may be imposed
under the Sentencing
Act for contempt.263
We recommend the
new statute contain a provision confirming that community-based
sentences are available as an alternative
to imprisonment and that the
sentencing principles in the Sentencing Act apply.264 We note the
important point made in the comments of the District Court Judges that this
would require pre-sentence reports and
further adjournment and could extend
the time. We do not consider this sufficient reason, however, for departing
from general
sentencing principles.
A two-judge process is not necessary
3.36
3.37
3.38
3.39
3.40
3.41
In the Issues Paper the Commission raised the possibility that two judges
should be involved in the process for contempt for disruptive
behaviour in the
courtroom so that after the person had been cited for contempt by the first
judge determination and punishment of
the contempt would be conducted by a
second judge.
Most people consulted did not consider a two-judge
process necessary. Those consulted considered it fundamental to
the
administration of justice that a judge is able to maintain order in his or her
court. Where a judge cannot deal with the
immediate disruption and enforce
the standards he or she has set by holding the disruptive person to account,
there is a risk
that his or her authority is undermined.
There is also
practical value in having the first judge, who witnessed the disruption, deal
also with the punishment phase.
He or she can confirm the sequence of
events and form a view about the seriousness of the disruption in the
proceeding at
the moment it happened. It may be difficult or artificial for
the second judge to reach a view on those matters.
A few submitters
pointed out that a two-judge process may require the second judge to summon
the first judge as a witness. This
would be undesirable. Further, depending
on the nature of the judge’s evidence, the judge may not be required to
give evidence
because section 74 of the Evidence Act 2006 provides judges
are not compellable witnesses in respect of their conduct as
judges.265
The comments from the District Court Judges
recognised that having another judge impose the sentence could sometimes be
beneficial,
such as where there are disputed facts or a danger of bias.
They also noted, however, that if it was a statutory requirement
there
would be serious rostering issues. In circuit courts, courts that sit
infrequently, and single-judge courts there
may be significant delays before
a different judge becomes available. This would turn a short, summary
procedure into a lengthy
ordeal for all concerned.
In our view the issue
turns on impartiality. Nobody disputed that a person cited for contempt must
appear before an independent
and impartial judge to determine the contempt.
Impartiality is an essential requirement for a judge and must exist both as a
matter
of fact and as a matter
261 Sentencing Act 2002, s 4; Global Kiwi NZ Ltd v Fannin [2016] NZHC 1767 at [15].
262 For example: Sentencing Act 2002, ss 45 and 55.
263 Queen Elizabeth the Second National Trust v Netherland Holdings Ltd [2014] NZHC 1094, [2015] NZAR 1815 at [47]–[49] and Global Kiwi NZ Ltd v Fannin, above n 261, at [28].
264 A Full Court of the High Court has stated that a penalty ought to be assessed applying a methodology akin to that used for sentencing a criminal offender: Solicitor-General v Miss Alice [2007] NZHC 48; [2007] 2 NZLR 783 at [88]. Discussed at [5.68]–[5.69].
265 This issue is discussed in more detail in chapter 6 at
[6.77].
Reforming the law of contempt of court: A modern statute 65
CHAPTER 3: Disruptive behaviour in the courtroom
of reasonable appearance. The right to an independent and impartial
judiciary is protected in the New Zealand Bill of Rights
Act 1990
(NZBORA).266 The Judiciary’s Guidelines for Judicial
Conduct provide that a judge should disqualify him or
herself:267
3.42
3.43
3.44
...in circumstances where a fair-minded, properly informed lay observer
would have a reasonable apprehension that the judge
might not bring an
impartial mind to the resolution of the question the judge is required
to decide. The standard
is one of real and not remote possibility, rather
than probability. Judges are not disqualified from sitting merely because
the
issues involved in a case are in some indirect way related to the Judge’s
personal experience.
Having the judge who witnessed the disruption
conduct the hearing appears to be at odds with this requirement of
impartiality,
given the judge is both witness and judge. A judge
should, however, be able to act impartially, and “through
training,
professional experience and commitment to proper exercise of the judicial
function will decide a case, at all stages,
impartially according to the
merits of what is put to the court as the judge sees it”.268
On taking up appointment, a judge must take an oath to “do right to
all manner of people after the laws and usages of New
Zealand without fear or
favour, affection or ill will”.269 As McGrath J pointed
out:270
The importance of that solemn commitment to independence and impartiality
during judicial service is substantial. Adherence to that
responsibility is a
fundamental aspect of judicial integrity, commitment to which is the guiding
principle in every decision
that a judge takes. The oath is accordingly a
continuous strong force for judicial neutrality.
The Judiciary’s
Guidelines for Judicial Conduct stipulate that a judge should not
accede too readily to an allegation of bias and should be mindful of the burden
that passes
to other judges if he or she resorts to disqualification without
need.271 There would be a risk to the justice system if judges
were always to disqualify themselves from cases in which there was
only a
remote possibility of bias.272
For these reasons, we do
not consider the law should routinely require a second judge to conduct
the hearing. Subject
to the normal rules of recusal, we envisage a second judge
would be required only in exceptional circumstances. Where a second judge
is to
hear and determine the case a transcript of the earlier hearing should, where
proceedings were recorded, be available to
the court.
Criminal charge?
3.45
As already mentioned, a person is not charged with contempt of
court.273 Since a charge is not laid, the standard trial procedures
and protections in the Criminal Procedure Act 2011 do not apply. Additionally,
a person found in contempt of court is not convicted of an offence and will not
have a criminal conviction entered against their
name.274 As Lord
Esher MR explained:275
266 New Zealand Bill of Rights Act 1990, ss 25(a) and 27.
267 “Guidelines for Judicial Conduct” (March 2013) Courts of New Zealand <www.courtsofnz.govt.nz> at [27].
268 Saxmere Company Ltd v Wool Board Disestablishment Company Limited [2009] NZSC 72, [2010] 1 NZLR 35 at [104].
269 Oath and Declarations Act 1957, s 18.
270 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 268, at [105].
271 “Guidelines for Judicial Conduct”, above n 267, at [29]. For a general discussion on recusal see also Grant Hammond Judicial Recusal: Principles, Process and Problems (Hart Publishing, Portland, 2009).
272 If a practice were to emerge in New Zealand of judges disqualifying themselves without having good reason, litigants may be encouraged to raise objections which are based solely on their desire to have their case determined by a different judge they think is more likely to decide in their favour: “Guidelines for Judicial Conduct”, above n 267, at [27]–[30].
273 See [3.13] above.
274 R v Palmer [1992] 1 WLR 568 (CA) R v Griffin (1989) 88 Cr App R 63 (CA) at 67. Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CA9.01].
275 Osborne v Milman [1887] UKLawRpKQB 25; (1887) 18 QBD 471 at 472.
66 Law Commission Report
3.46
3.47
3.48
The plaintiff was not a prisoner convicted of crime. There are none of the
elements of a conviction of crime in the case of a proceeding
under s. 32.
There is nothing in the nature of a trial. There is no verdict of a jury or
anything equivalent to it. There is
no regular criminal charge formulated as
in the case of an indictment found by a jury, or an information before
justices. The
evidence in such a case is on affidavit. Surely the Court would
read an affidavit by the party proceeded against. If so, the
proceeding
cannot be of a criminal nature. The order is not a conviction, but a mere
order made in the exercise of a summary
jurisdiction to punish for
contempt.
In the Issues Paper the Commission raised the
possibility that the process for contempt for disruptive behaviour in the
courtroom should commence as an ordinary prosecution with a formal
charge.
Most people we consulted on this issue did not favour requiring a
criminal charge to be laid and prosecuted under the Criminal
Procedure Act
2011 in the usual way for offences.276 Imposing the ordinary
criminal process on this particular category of contempt of court would
undermine the ability of judges to
manage effectively their courtrooms.
Also in order to be effective the prosecution of charges in this area
would need
to receive greater priority than category 2 offences
normally receive. Even if prioritised, the prosecution process would
lengthen
and delay the process.
For these reasons we conclude that contempt for
disruptive behaviour in the courtroom should not commence as an ordinary
prosecution
with a formal charge, and should not result in a criminal
conviction. While the protections attaching to any criminal hearing
are
important, our proposed statutory procedure ensures a fair hearing.
Recommended approach: separate citation for contempt from contempt
hearing
3.49
We recommend that a statutory procedure for dealing with disruptive
behaviour in the courtroom separate out the citation
and removal from
the courtroom from the hearing and punishment.277 To do this,
the new statutory provisions should enable the following:
(a)
(b) (c) (d)
(e)
Authorise the judge to deal with the immediate disruption by
citing the person for disrupting the court and, if necessary,
ordering
the person to be taken into the court cells until the rising of the court
that day. At this point the person is on
notice he or she will have to show
why he or she should not be held for disruption of the court and
punished accordingly.
Give the person the opportunity to exercise
their right to consult and instruct a lawyer under section 24(c) of
NZBORA.
Allow a reasonable opportunity for the person cited for
disruptive behaviour in the courtroom to make an appropriate apology
to the
court.
Require the judge to review the matter before the close of day
and consider whether he or she considers that further punishment
may be
necessary by having the matter set down for determination.
If the
matter is set down for determination, the Bail Act should apply, with the
necessary modifications, as if the person cited
for disruptive behaviour in the
court were charged with an offence that carries the penalties required by that
Act.
276 The Crown Law Office questioned in its submission whether a standard criminal prosecution process would really be appropriate for contempt.
It noted that currently the procedure is characterised by the use of written evidence rather than oral, limited cross-examination and matters being proved to the judge’s satisfaction based on their own judicial knowledge and by taking judicial notice in light of their experience. These features do not lend themselves to a standard criminal prosecution.
277 The appeals process, for appeals against any finding that a
person is guilty of criminal contempt and also for an
appeal against
sentence, is currently provided in Subpart 5 of Part 6 of the Criminal
Procedure Act 2011. It is not proposed
that this will change.
Reforming the law of contempt of court: A modern statute 67
CHAPTER 3: Disruptive behaviour in the courtroom
(f)
(g) (h) (i)
If the matter is set down for determination, require the judge to give
the person written reasons specifying the behaviour
the judge believes
constitutes disruptive behaviour in the court and that makes the person liable
for further punishment.
If the matter is set down for determination,
direct the judge to decide whether exceptional circumstances warrant a different
judge
hearing the case.
Give the judge hearing the case the
discretion to receive any explanation offered by the person to ensure the
case proceeds
on a reliable factual platform.
Clarify that if a person is
found guilty of disruptive behaviour in the court he or she will not be
convicted of an offence.
3.50
Clauses 16 to 18 included in the draft Bill in Part 2 of the Report give
effect to this recommended approach.
Costs and unintended consequences
3.51
We are satisfied that overall the benefits of the three-step
process should outweigh any additional costs associated
with the new
procedure and there should be no unintended consequences from our
recommended reforms. Minor disruptions,
which are resolved at step one, are
more effectively filtered out without further punishment. Where offending
conduct is more
serious, steps two and three, which will be more time
consuming, should ensure a more measured approach that better serves
the
interests of justice and result in fewer appeals.
Reform should cover some tribunals
3.52
3.53
3.54
There are a few tribunals that have the same or very similar powers as
courts to punish for disruptive behaviour. The Human
Rights Tribunal is able
to order that a person be detained in custody during a hearing where that
person is disrupting a hearing.278 A Commission of Inquiry has the
same powers as the District Court in respect of citing parties and
maintaining order279 and, when headed by a present or former High
Court Judge, has the same powers to punish for contempt as the High Court
and
in the same terms.280 These bodies can also impose a fine or
term of imprisonment on a person who disrupts the proceedings, misbehaves in
the tribunal
hearing or does not comply with the tribunal’s orders during
the hearing. In respect of both the Ombudsman281 and the
Independent Police Conduct Authority,282 it is an offence to hinder
or obstruct or fail to comply with a lawful requirement. The Customs Appeal
Authority has the same
powers as the District Court in respect of maintaining
order at hearings.283
We recommend the new statutory
procedure for disruptive behaviour in the court set out above at [3.49] and
consistent penalty
levels should also apply to those tribunals that can order
detention and custody.
The majority of tribunals, however, do not
have power to detain a person in custody where the person is disrupting
the tribunal
proceedings or to impose fines or commit to prison. The
Residential Tenancies Tribunal, the Disputes Tribunal, the Copyright
Tribunal, the Health Practitioners Disciplinary Tribunal, the Lawyers
and Conveyancers Tribunal and the
278 Human Rights Act 1993, s 114.
279 Commissions of Inquiry Act 1908, s 4.
280 Commissions of Inquiry Act 1908, s 13B.
281 Ombudsmen Act 1975, s 30.
282 Independent Police Conduct Authority Act 1988, s 37.
283 Customs and Excise Act 1996, s 259.
68 Law Commission Report
3.55
Weathertight Homes Tribunal, for example, all fall within this
group.284 These tribunals can exclude people from the hearing
where they are disruptive or misbehave, but cannot impose a fine or a term
of imprisonment on a person for disrupting proceedings or refusing to comply
with the tribunal’s orders or directions.
The law does not treat
disruptive behaviour, misconduct and non-compliance with an order as contempt
where it occurs in one of these
tribunals. Instead, it is an ordinary criminal
offence. The person faces charges and prosecution in the District Court
under
the Criminal Procedure Act and if the person is found guilty a
conviction is entered. We consider this approach remains appropriate
because
the tribunals in question, when constituted, were not given this jurisdiction
to imprison or punish for contempt. We
have therefore not recommended
including these tribunals in our reforms.
Drafting issues, consolidation and penalty levels
3.56
3.57
3.58
During the process of considering a statutory procedure for
disruptive behaviour in the courtroom, we have reviewed the
wording of the
new contempt of court sections in the Senior Courts Act 2016 and the
District Court Act 2016. In the Commission’s
report, Review of
the Judicature Act 1908: Towards a New Courts Act, the Commission argued
for a relatively narrow provision to cover disruptive behaviour in the
courtroom. The Commission said
it should not include conduct such as
assaults or threats because the criminal law deals with that type of
behaviour,
whether it occurs in a court or elsewhere. The new provisions in the
Senior Courts Act and the District Court Act reflect
that
recommendation. Having reviewed the wording again, however, we think
Parliament should further refine it. The sections
do not need to refer
explicitly to insulting behaviour because that is a subset of misbehaviour which
the criminal law already covers.285
We have also considered
whether the current sections dealing with disruptive behaviour in the
courtroom should remain in the
Senior Courts Act and District Court Act. We
recommend that, together with the new procedural provisions discussed
above,
they should be in the proposed new Administration of Court
(Reform of Contempt of Court) Act. Our preference is for the
new
Administration of Court (Reform of Contempt of Court) Act to have a single
set of provisions applying to all courts
and those tribunals that
currently have power to impose sanctions for disruptive behaviour. To
achieve this, Parliament
would need to make consequential amendments to the
relevant Acts to apply these provisions to the Employment Court, Māori
Land Court, Māori Appellate Court, Environment Court and Human
Rights Tribunal. Clauses 16 to 18 of the draft Bill attached
to the Report
reflect this approach. The Bill also includes consequential amendments to the
statutes establishing these courts.
Finally, we recommend that
Parliament should update the penalty for disruptive behaviour in the
courtroom. The monetary penalty
in the Senior Courts Act and the District
Court Act does not adequately cover the scope of conduct that may come within
the provision.
We recommend a maximum penalty of a term of imprisonment not
exceeding three months or a fine not exceeding $10,000. Our
discussion
around how we have set penalties is in chapter
7.286
284 For example see: Residential Tenancies Act 1986, s 112; Disputes Tribunals Act 1988, s 56; Copyright Act 1994, s 221; Health Practitioners Competence Assurance Act 2003, sch 1, cl 13; Lawyers and Conveyancers Act 2006, s 251; Weathertight Homes Resolution Services Act 2006, s 115.
285 Summary Offences Act 1981, s 4.
286 See [7.59]–[7.66].
Reforming the law of contempt of court: A modern statute 69
CHAPTER 3: Disruptive behaviour in the courtroom
RECOMMENDATIONS
R11
New statutory provisions dealing with disruptive behaviour in the court
should:
(a)
(b) (c)
(d) (e) (f)
(g) (h)
(i)
Authorise the judge to deal with the immediate disruption by
citing the person for disrupting the court and, if necessary,
ordering
the person to be taken into the court cells until the rising of the court
that day.
Give the person the opportunity to exercise his or her
right to consult and instruct a lawyer under section 24(c) of the New
Zealand
Bill of Rights Act 1990.
Allow the person a reasonable opportunity to
apologise to the court.
Require the judge to review the matter
before the rising of the court that day and decide whether he or she
considers further
punishment may be necessary by having the matter set down for
determination.
Apply the Bail Act 2000, with the necessary
modifications, as if the person cited for disrupting the court was charged
with
an offence that carries the penalties required by that Act.
If the
matter is set down for determination, require the judge to give the person
written reasons specifying the behaviour the
judge believes constitutes
disruptive behaviour in the court and makes the person liable for further
punishment.
If the matter is set down for determination, direct
the judge to consider whether exceptional circumstances warrant
a
different judge hearing the case.
Give the judge hearing the case the
discretion to receive any explanation offered by the person to ensure the case
proceeds on a
reliable factual platform.
Clarify that a person found guilty of, and punished for, disruptive behaviour
in the court is not convicted of an offence.
R12
R13
R14
R15
R16
R17
Conduct giving rise to a potential determination of disruptive behaviour
in court should be focused on conduct that interrupts
proceedings and poses a
threat to the due administration of justice.
On making a finding that a
person is guilty of disruptive behaviour in court, the court may sentence the
person to a term
of imprisonment not exceeding 3 months or a fine
not exceeding $10,000.
The Sentencing Act 2002 should apply in respect
of any sentence imposed by the court under the new provision as if the person
had been convicted of an offence.
Appeals against any finding that a
person is guilty of disruptive behaviour under the new provision should be
heard under
subpart 5 of Part 6 (sections 260 to 269) of the Criminal
Procedure Act 2011.
The new statutory provisions that deal with
disruptive behaviour in court should apply to all courts, the Human Rights
Tribunal,
and any other tribunals that currently have the power to impose
sanctions for disruptive behaviour.
The new statutory provisions dealing with disruptive behaviour in court
should be located in a new Administration of Justice (Reform
of Contempt of
Court) Act.
70 Law Commission Report
Chapter 4
Juror contempt
INTRODUCTION
4.1
4.2
4.3
4.4
4.5
4.6
4.7
Trial by jury is a fundamental and important part of the New Zealand criminal justice system.287
Persons charged with serious criminal offences must be tried by
jury.288 Persons charged with any offence for which, on
conviction, they may be sentenced to two years’ imprisonment or more are
entitled to elect trial by jury.289
Trial by jury is now
less significant in civil law, but is still used in claims for
defamation, malicious prosecution,
false imprisonment or other similar
claims.290 In this chapter we address the law of contempt of court
as it applies to juries in criminal cases.
The starting point is to
recognise the importance of the jury system in the criminal law context. In the
judgment of the Full Court
of the High Court in Solicitor-General v Radio
New Zealand Ltd Eichelbaum CJ and Grieg J agreed with the submission of the
then Solicitor-General that:291
... the jury system is fundamental to the administration of the criminal law
in New Zealand. It has as its basis the quality of a
collective decision made by
a group of ordinary New Zealanders in accordance with their unanimous opinion on
whether or not a prosecution
brought on behalf of the community has been
proved beyond reasonable doubt. The concept is vulnerable to attack and
if
it is to be maintained as the lynchpin of the criminal justice system the
Courts must be vigilant to protect it.
As the right to trial by
jury is affirmed by the New Zealand Bill of Rights Act 1990
(NZBORA),292 we proceed on the basis that the concept is to be
maintained as the lynchpin of the criminal justice system and that the
following
features of the jury system are crucial.
First, the jury must
be impartial and free from any outside constraint.293
Second,
jurors are required to comply with their oath or affirmation that they will
try the case before them to the best of their
ability and give their verdict
“according to the evidence”.294 The requirement to give
their verdict “according to the evidence” means that jurors must
base their verdict solely
on the evidence admitted at the trial. This
requirement reflects the elementary proposition that for a trial to be fair
both the defence and the prosecution must know all the evidence the jury
is going to consider in reaching its verdict and
have the opportunity to test
it.295
Third, in reaching their verdict jurors must not
take into account extraneous material that is not in evidence. In
particular, they should not carry out their own research or
inquiries
287 Laws of New Zealand Juries (online ed) at [1].
288 Criminal Procedure Act 2011, s 74: category 4 offences require trial by jury, subject to limited exceptions under ss 102 and 103.
289 New Zealand Bill of Rights Act 1990, s 24(e); Criminal Procedure Act 2011, ss 50 and 74.
290 Laws of New Zealand Juries (online ed) at [1].
291 Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC) at 51. Since 2009, majority verdicts have also been permitted: Juries Act
1981, ss 29C and 29D.
292 Section 24(e).
293 Solicitor-General v Radio New Zealand, above n 291, at 60.
294 Jury Rules 1990, r 22 and sch 1, form 2.
295 R (CA679/2015) v R [2016] NZCA 444 at [51].
Reforming the law of contempt of court: A modern statute 71
CHAPTER 4: Juror contempt
4.8
4.9
4.10
or take into account information from the media, the internet or other
sources.296 Breaches of this requirement may constitute an
irregularity sufficient to cause the verdict to be set aside, a conviction
quashed
and a retrial ordered.297 Jurors responsible for the
breach may also be committed for contempt of
court.298
Fourth, jurors must reach their verdict
following free, frank, private and confidential discussions.299
As the English Court of Criminal Appeal has put it
recently:300
Every member of the jury is entitled in the course of jury deliberations to
express his or her views with the utmost frankness
and clarity ... there
are no degrees or limitations of the views which may be expressed ...
everything that has been said in
the course of these discussions must remain
confidential to the members of the jury.
The Court added that
confidentiality encouraged the frank exchange of views and meant that no
juror was inhibited from expressing
an unpopular
view.301
Fifth, subject to appeals and lawful challenges, jury
verdicts must be treated as final.302
Finally, the obligation
of confidentiality and the need for finality mean that, save in exceptional
circumstances, jurors must not
discuss or disclose jury
deliberations.303 Indeed, save in cases involving exceptional
circumstances, the evidence of jurors about their deliberations is
inadmissible
in court proceedings.304 Other parties are also not
entitled to seek such discussion or disclosure. Jurors and other parties who
do so may be in contempt
of court.305
ACCESSING INFORMATION
4.11
Jurors do sometimes actively seek out information. Examples from cases
illustrate that jurors have sometimes undertaken their
own investigations
or searched for information about the defendant or others involved in the
case. Jurors have in the past visited
the scene of the crime306 and
conducted experiments to determine how long a car engine takes to cool
down307 or how much heroin could be secreted in shoes.308
Jurors have also asked chemists questions about the availability and
price of ephedrine.309 More recently in one reported case,
print-outs containing definitions of “burden of proof” and
“beyond a reasonable
doubt” were found in the jury room. The
material was from the United States and so did not accurately reflect New
Zealand
law.310
None of these cases, however, involved
prosecutions of the jurors for contempt of court.
296 Mussa v R [2010] NZCA 123 at [36]; R v Thompson [2010] EWCA Crim 1623, [2011] 1 WLR 200 (Crim App) at [5]; and Attorney-General v
Fraill [2011] EWHC 1629 (Admin), [2011] EWCA Crim 1570 at [27]–[30].
297 Laws of New Zealand Juries (online ed) at [54].
298 Laws of New Zealand Contempt of Court (online ed) at [47].
299 Solicitor-General v Radio New Zealand Ltd, above n 291, at 54 and 60; and Smith v R [2017] NZCA 93 at [26].
300 Attorney-General v Fraill, above n 296, at [33].
301 At [33].
302 Solicitor-General v Radio New Zealand Ltd, above n 291, at 54.
303 Solicitor-General v Radio New Zealand Ltd, above n 291, at 53–54.
304 Evidence Act 2006, s 76(1) and (3).
305 Solicitor-General v Radio New Zealand Ltd, above n 291, at 53–54; Attorney-General v Fraill, above n 296, at [34].
306 R v Gillespie CA 227/88, 7 February 1989 (conviction quashed on the basis that inquiries may have influenced the verdict).
307 R v Taka [1992] 2 NZLR 129 (CA) (appeal against conviction dismissed, although the Court observed that such experiments were not permitted and could vitiate a verdict if there was reasonably well-grounded suspicion that verdict had been influenced).
308 R v Sangraksa CA 503/96, 3 July 1997 (appeal dismissed, although the Court reaffirmed the observations made in R v Taka, above n 307).
309 R v Bates [1984] NZCA 110; [1985] 1 NZLR 326 (CA) (a new trial was ordered on the basis of juror misconduct giving rise to a miscarriage of justice).
310 R v Harris CA 121/06, 27 September 2006 (appeal dismissed,
the trial judge having adequately addressed the jury regarding the
erroneous
material in summing up).
72 Law Commission Report
4.12
4.13
4.14
4.15
As noted in chapter 1, the internet and developments in technology have
dramatically changed the way people obtain, use and share
information. One
consequence for the justice system is that it has become much more difficult
to shield jurors from exposure
to extraneous information during a trial. It
is also much easier for jurors to undertake their own research or
share
information about the trial outside of the courtroom.311
Jurors no longer need to visit a scene. They can do so virtually
through Google Earth without leaving their homes or with their
phone on the
bus. Jurors no longer need to go to chemists to find out the price of drugs,
they can google the information. The
“modern juror has at his or her
fingertips a vast array of updated and archival information available via
the Internet”.312
As the English Court of Criminal
Appeal has pointed out:313
Information provided by the internet (or any other modern method
of communication) is not evidence. Even assuming the
accuracy and completeness
of this information (which, in reality, would be an unwise assumption) its use
by a juror exposes him
[or her] to the risk of being influenced, even
unconsciously, by whatever emerges from the internet. This offends our long
held belief that justice requires that both sides in a criminal trial should
know and be able to address or answer any material
(particularly material which
appears adverse to them) which may influence the verdict.
Recent
examples in the United Kingdom of the misuse of the internet by jurors
include:
. contempt by a juror communicating with a
defendant during a trial via Facebook and
conducting an online discussion with the defendant (trial
already completed when misconduct came to light and
outcome not
affected; juror sentenced to eight months’
imprisonment);314
. contempt by a juror who did
internet searches on legal terms and also on the defendant’s
background and disclosed to other jurors during a trial that the
defendant had previously been acquitted of rape (jury
discharged and a
retrial ordered; juror sentenced to six months’
imprisonment);315
. contempt by a juror who
posted a message on Facebook displaying pre-existing prejudice
towards sex offenders (juror discharged and the trial continued;
juror sentenced to two months’ imprisonment);316
and
. contempt by a juror who researched a defendant
on the internet during a trial, leading
the Lord Chief Justice to direct that notices to jurors in court
buildings be rewritten in “plain English”
so that no one should
be in any doubt as to the obligations imposed upon them or as to the penal
consequences of breaching
them (juror sentenced to nine months’
imprisonment).317
In New Zealand the challenges posed for
jurors by the internet are already addressed through the information given to
them when
they are called for jury service, the questions asked when they are
empanelled and the directions given to them by the trial
judge.
311 Jane Johnston and others Jurors and Social Media: A report prepared for the Victoria Department of Justice (2013) at [3.1]. See also R (CA679/
2015) v R, above n 295, at [13] and [62]–[63].
312 D Harvey, “The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm” (2014) NZ L Rev 203 at 206.
313 Attorney-General v Fraill, above n 296, at [30].
314 Attorney-General v Fraill, above n 296.
315 Attorney-General v Dallas [2012] EWHC 158 (Admin), [2012] 1 WLR 991. The jury had not been told about the allegation of rape, although in relation to the same incident the jury was told that the defendant was convicted of assault.
316 Attorney-General v Davey [2013] EWHC 2317 (Admin), [2014] 1 Cr App R 1.
317 Solicitor-General v Smith 9 June 2016, Divisional Court
Attorney General’s Office (UK) “Two jurors found guilty of contempt
of court” (press
release, 9 June 2016).
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CHAPTER 4: Juror contempt
4.16
4.17
A juror who searches for information or undertakes other investigative
work is likely to be in contempt at common law since the
juror’s
actions may compromise the defendant’s right to a fair trial and
interfere with the due administration of
justice. The issue whether a juror
would be in contempt for undertaking his or her own investigations has not yet
been tested, although
there have been cases where jurors have received and
considered outside information,318 and a recent case where a
conviction was set aside on appeal because extrinsic material found in the
jury room was held to be
capable of affecting the jury’s
verdict.319
Where jurors undertake research after the trial
judge has directed them not to undertake their own inquiries, the conduct
would
contravene a judicial direction. It would then be likely to be caught by
the statutory contempt of court provision, which applies
if any person
wilfully and without lawful excuse disobeys any order or direction of the court
in the course of the hearing of any
proceedings.320 In these
circumstances it is not the research, but the fact the juror wilfully and
without lawful excuse disobeyed an order or
direction of the judge that
gives rise to the contempt.321
Issues Paper proposals
4.18
The Commission acknowledged in its Issues Paper that it is unrealistic to
assume that jurors, who otherwise use the internet
every day, will not be
tempted to check for information relating to aspects of the case they are
hearing. The Commission recognised
that in this day and age, jurors need
greater instruction and education. The Commission therefore suggested
several proactive
measures to minimise the risk that jurors would see or look
for external material. The proposals put forward were:
(a) (b) (c) (d)
(e)
(f)
a new statutory offence covering jurors who undertake their own
research to replace the common law;
more explicit information in the
material given to those called for jury service about the risks and
consequences of jurors
undertaking their own research;
enhanced inquiry
when empanelling jurors to clarify whether jurors have been exposed to
pre-trial publicity of a kind that might
influence them in arriving at a
verdict;
amendments to the form of the oath/affirmation in the
Rules322 taken by jurors to include undertakings to base their
verdict only on the evidence presented in court and not to conduct
their own research;
more consistent and comprehensive judicial directions
that deal with the risks and consequences of jurors undertaking their own
research;
and
giving jurors clearer and more consistent directions
about their ability to ask questions of the judge during the trial.
4.19
The Commission consulted on these proposals and we set out the feedback
we received in the context of our conclusions and recommendations
below.
318 For example see Naiker v R [2016] NZSC 118.
319 In R (CA679/2015) v R, above n 295.
320 Senior Courts Act 2016, s 165; District Court Act 2016, s 212.
321 A recent case in the United Kingdom arguably implies that such conduct is both in breach of a direction, and of itself common law contempt, because it is conduct that specifically interferes with the administration of justice: Attorney-General v Davey, above n 316, at [2]–[4]. See also Attorney-General v Dallas, above n 315; and Dallas v United Kingdom (2016) 63 EHRR 13 (ECHR).
322 Jury Amendment Rules 2000, sch 1, form 2.
74 Law Commission Report
Specific offence for juror research
4.20
4.21
4.22
4.23
4.24
4.25
4.26
In the Issues Paper the Commission proposed a new offence
to dissuade jurors from undertaking their own
research. This offence
would replace common law contempt. The Commission proposed the
threshold for the offence
should be set so only jurors who
intentionally searched for information knowing or believing it will relate to
the case
would be caught. Whether those jurors shared any information they
found with other members of the jury could be a relevant
factor in
sentencing.
Most submitters supported a statutory offence for jurors who
deliberately conducted their own research despite clear instruction
not to
do so. This was primarily because of the consistency and clarity that a
statutory offence would provide.
Other common law jurisdictions have
already responded to the googling juror problem in this way. In three states
in Australia
it is an offence for jurors to conduct their own
investigations.323
Likewise it is an offence in the United Kingdom
for jurors to undertake research and an offence for jurors to share research
with
other jurors.324
The New Zealand Law Society (NZLS)
suggested that we should consider whether it should be a complete defence, or at
least recognised
in mitigation of sentence, if a juror who has succumbed to
the temptation of doing research then seeks discharge from the
jury at
the first available opportunity.
Having considered these submissions,
we recommend creating a statutory offence where a member of a jury
intentionally investigates
or researches information about the case. This
would clarify the current position, sending a clear message to jurors that
research
is simply not permitted. This new offence is critical to reform
in this area because it will serve as a clear deterrent
to jurors and thus
set a standard to underpin our other proposed reforms. Judges would tell
jurors clearly at various points
during the trial they should not undertake
their own research and would explain to them the reasons for the
prohibition
and the consequences of breaching it.
The threshold for
the offence (which is in clause 19 of the Bill) is that a juror
intentionally searches for information
and does so when he or she knows or
ought reasonably to know that it may be relevant to the case before them. No
juror should
be able to use the fact that he or she sought a discharge from
the jury as a defence. A discharge may still lead to a jury trial
being
abandoned (with the adverse cost implications that flow from this) because
the jury number falls below the minimum
threshold.325 Whether the
juror seeks discharge at the first opportunity and also whether the juror
shared any information he or she found with
other members of the jury should
be factors to be taken into account when penalty is being
determined.
We recommend a maximum penalty of a term of imprisonment
not exceeding three months or a fine not exceeding $10,000. The
discussion around how we have set penalty levels is in chapter
7.326
323 Under s 68C of the Juries Act 1977 (NSW) it is an offence for jurors to conduct their own investigations. Section 69A of the Juries Act 1995 (Qld) prohibits jurors from making inquiries and s 78A of the Juries Act 2000 (Vic) prohibits the making of inquiries. All of these provisions are considered broad enough to cover jurors undertaking research. In New South Wales, recent legislation has also prohibited the use of personal digital assistants during and after proceedings in court: see Court Security Act 2005 (NSW) amended by the Courts and Other Legislation Further Amendment Act 2013 (NSW). This new provision would seem to prohibit jurors using social media during trial.
324 In 2015, the United Kingdom enacted a recommendation of the Law Commission for England and Wales that research by jurors be made a statutory criminal offence in the Criminal Justice and Courts Act 2015 (UK). Section 71 amends the Juries Act 1974 (UK) to insert new sections
20A-20B: Law Commission of England and Wales, Contempt of Court (1): Jurors Misconduct and Internet Publications (LC340, 2013) at [3.78].
325 Juries Act 1981, s 22(1A). The court may proceed with fewer than 10 jurors only if all parties consent to doing so and the court, having regard to the interests of justice, considers that it should do so.
326 See chapter 7 at [7.59]‒[7.66].
Reforming the law of contempt of court: A modern statute 75
CHAPTER 4: Juror contempt
Jury service educational material
4.27
4.28
4.29
4.30
4.31
4.32
4.33
Jurors receive written information and other instructions from the
Ministry of Justice before they are empanelled. The information
potential
jurors receive when summoned states that jurors must not make their own
inquiries about the case.327 This is then further explained:
Don’t google the people or places in the case or visit the place the
crime happened by yourself, unless the court arranges
the visit.
The
booklet also advises jurors to avoid news reports and media comments
about the trial.328
The jury panel watches a video presentation prior to empanelling
telling them they must not make their own inquiries, such
as researching
information about the defendant or going to visit the crime scene
independently.
In the Issues Paper the Commission proposed
providing more explicit information about the risks of juror research in
the
material given to those called for jury service and to the panel from which
the jury is selected.
Submitters agreed that potential jurors should
be given information explaining why it is important that jurors not
investigate
or undertake their own research and the risks if they do. One
submitter suggested to us that examples might also assist;
for example,
research could include asking questions about the trial on social
media.
Since completing the Issues Paper and consultation in 2014, the
Ministry of Justice has updated the jury service educational material
on its
website. It has also updated the material sent to jurors with their
summonses. The material still does not, however,
provide information on the
reasons for the instructions or the risks for jurors if they conduct their
own research. Jurors
should be told about the need to ensure the
defendant and the prosecution have a fair trial and the inadmissible nature
of the material they discover. If our recommended new offence is enacted, that
information should also be included in this material
to show the consequences
of any breach.
We recommend the Ministry of Justice update the juror
service educational information to ensure it provides adequate and
clear
guidance on the problems and risks if jurors undertake their own research.
Jurors should be told the reasons why doing
their own research poses a risk to
a fair trial. The material they find may be inaccurate or inadmissible. It
will not have been
put to the defendant or tested in court. Jurors must be told
that undertaking their own research:
. will be contrary to
their oath or affirmation which will require them to decide the case
solely
on the evidence at the trial;
. may mean that
the judge may have no option but to discharge the jury and abandon the
trial
because the defendant would not have a fair trial;
.
may result in significant costs due to an abandoned trial, both a
financial cost to the justice
system and a cost to complainants and other witnesses who will have to give
evidence and endure the stress and inconvenience of
a trial all over again;
and
. will create a risk that the juror may be charged with
the proposed new offence, which will be
punishable by imprisonment or fine.
We have discussed this
recommendation with officials at the Ministry of Justice and they support
reviewing the guidance
the Ministry currently provides to
jurors.
327 Ministry of Justice Jury Service: Information about jury service and being a juror (Ministry of Justice, Wellington, 2016) at 6.
328 At 7.
76 Law Commission Report
More interactive approach to empanelling jurors
4.34
4.35
4.36
4.37
4.38
4.39
In high-profile cases at least, there is a reasonable likelihood that some
jurors will come to their task with some previous
knowledge of the case
gleaned from exposure to material through the media. The jury selection
process addresses pre-trial
exposure to external information. This gives
jurors an opportunity to disqualify themselves where they have prior
knowledge
of the case that may influence them. The trial judge will normally
invite any person on the jury panel to seek to be excused if
the person feels
unable to discharge their obligation to try the case only on the evidence
presented to them in the trial. Jurors
are normally asked to approach the
judge if they know anyone connected with the case or feel unable to decide the
case impartially.
In the Issues Paper the Commission proposed an
enhanced inquiry when empanelling jurors expressly to address pre-trial
exposure. The Commission did not propose the type of process involving
cross-examination of jurors used in the United States
and Canada, but a more
routine shift expressly to address pre-trial exposure.
The Commission
noted this had already begun to occur in high-profile cases. In one
of the Urewera raids cases, Iti v R, there had been a substantial
amount of publicity and public interest because the case might have been New
Zealand’s
first prosecution under the Terrorism Suppression Act 2002. The
Court of Appeal described the jury empanelling process that
had occurred
in that case:329
Before the jury was empanelled, we understand they were told of the subject
matter of the trial and directed to advise the Judge
if as a result of what
they had read or heard or opinions they had formed, they doubted their ability
to try the case fairly on the
evidence. We accept that not all potential jurors
may have recognised what may well be unconscious prejudice. However,
significant
numbers did. We were told that about 60 persons sought to be,
and were, excused. Even after the panel was selected and retired,
we understand
that at least one more came forward and withdrew.
The Commission
suggested it could be standard practice in cases that have attracted
public attention for the judge to tell
jurors the subject of the trial and
direct them to tell the judge whether, because of what they have read or
heard about
the case, they may not be able to try the case fairly on the
evidence presented in court.
During our consultation, several
submitters agreed that in high profile cases where there has been pre-trial
publicity potential
jurors should answer specific questions about their
knowledge of the case. The Auckland District Law Society Incorporated (ADLS)
felt that jurors should be separately questioned about:
.
whether they have any knowledge of the case;
.
if they have knowledge of the case, the extent of that
knowledge;
. whether they have researched any matters
that may be relevant and/or connected to the case;
and
. whether they consider they can fairly
try the case in all the circumstances.
The Wellington Community
Justice Project went further, suggesting a mandatory questionnaire asking for
specific information to
determine a juror’s level of exposure to
pre-trial media coverage and subjective bias. It was concerned judges might
be
inconsistent in their approach to questioning jurors because:
... jurors may be genuinely unaware of the level of pre-trial media exposure
to which they have been subjected and any prior opinions
and/or views that
they may hold on the case or defendant.
329 Iti v R [2012] NZCA 492 at [55].
Reforming the law of contempt of court: A modern statute 77
CHAPTER 4: Juror contempt
4.40
It was suggested that a questionnaire would be a more accurate indicator of
a juror’s ability to try a case fairly, and would
maintain consistency
during juror selection.
We recommend it be standard practice in cases
that have attracted public attention for the judge to clarify whether potential
jurors
have already been exposed to information about the case to a degree
that means they may not be able to try the case fairly
on the evidence
presented in court. If it becomes standard practice for judges to question
jurors about pre-trial exposure,
we do not think a mandatory questionnaire
is required. The judiciary should consider developing appropriate questioning
practices.
Juror oath or affirmation
4.41
4.42
4.43
4.44
4.45
After being empanelled, jurors must take an oath or affirmation. Jurors
are asked:330
Members of the jury: Do each of you swear by Almighty God (or
solemnly, sincerely and truly declare and affirm) that you will try the
case before you to the best of your ability and give
your verdict
according to the evidence?
By swearing to give their verdict
“according to the evidence”, jurors are in law accepting that
their verdict
must be based solely on the evidence admitted at the
trial. While this may not always be understood by jurors, it is
also
implicit in the oath or affirmation that jurors will not obtain or use
extraneous material privately at any stage before
or during the trial to
reach their verdict. Where a juror reaches a verdict not in accordance
with his or her conscientious
assessment of the evidence called at trial, he or
she will breach his or her oath or affirmation.331
In the
Issues Paper the Commission asked whether the juror oath and
affirmation should be amended to include a more explicit
agreement to base the
verdict only on the evidence presented in court and not to undertake their own
research.
We received only a few submissions on this issue, but all
supported this amendment. ADLS went further, suggesting that a written
undertaking not to undertake their own investigations or research should also
be given by each juror. The Law Commission for
England and Wales recommended
this in 2013.332
We recommend amending the wording of the
oath and affirmation so jurors explicitly agree to base their verdict
solely on
the evidence presented in court and not to undertake their own
research. This would ensure jurors specifically turn their
minds to the
fact that they may not undertake their own research. If a juror then
undertakes his or her own research, it would
be easier to hold him or her in
contempt (or establish liability for the statutory offence that we have
recommended). We
think an express acknowledgement by oath or affirmation
sufficiently puts the juror on notice and a further written declaration
to this
effect is not required.
More comprehensive and consistent judicial
directions
4.46
Courts routinely direct juries that they must decide the case on
the evidence presented to them in court and not to
discuss the case
outside the courtroom or seek information on the case. Judges receive good
practice examples from which
they develop their own approach to
instructing jurors. Guidance to judges on such matters refers to advising
jurors they
are not to:
330 Jury Rules 1990, sch 1, form 2.
331 Attorney-General v Fraill, above n 296, at [27].
332 Law Commission of England and Wales, Contempt of Court (1): Juror Misconduct and Internet Publications (LC340, 2013) at [5.27]–[5.31].
Specifically the Commission recommended amending the wording of the juror
oath to include a promise to base the verdict on
the evidence presented in
court and not to seek or disclose information on the case. It also recommended
that jurors be asked to
sign a written declaration on their first day of jury
service, acknowledging they have been warned not to research. Note these
recommendations
have not been implemented.
78 Law Commission Report
. make their own inquiries into what happened;
. make site investigations;
. engage in internet searches; or
. refer to the case on social media such as Facebook or
Twitter.
4.47
4.48
4.49
4.50
4.51
4.52
The form the instructions may take falls to the discretion of the
trial judge. The approach adopted is therefore not necessarily
consistent.
Some submitters said that directions given to jurors
should convey not just the fact of prohibition, but also explain
fully
the reasons jurors must not do this. Specifically, the directions should
clearly explain the need for a fair trial and that
a juror who undertakes his
or her own research puts the trial at risk of being abandoned.
Some
submitters went further and said the effects of an abandoned trial, namely that
it is time consuming and costly, should also
be explained. As noted in chapter
2 at [2.7], the average cost of a District Court trial in New Zealand is
$26,144, and the
overall cost of a trial in the High Court is likely to be
higher.333 An abandoned trial also affects complainants and other
witnesses who will have to give evidence and endure the stress and
inconvenience
of a trial all over again.
Submitters agreed that courts
should reinforce these messages throughout the trial because a juror has
a lot of new information
to assimilate at the outset. One submitter
suggested the temptation to research information may grow as the trial
progresses,
and jurors may feel more justified in conducting research
towards the end of the trial as pressure mounts to reach a
verdict.
Jurors will be less likely to engage in undertaking their own
research if they understand the implications of such
action:334
“Googling” has become one of the simplest and most natural
ways of filling any information void. The reasons why
such behaviour cannot
be permitted might be obvious to lawyers, but unless the potential for damage
to the criminal justice
process is explained by way of background to jurors,
they cannot reasonably be expected to follow a judicial direction whose
significance is neither apparent nor, at least in the early days of the
internet, explained by the judge at the outset of the
trial.
We
therefore recommend that jurors should be reminded during the trial that
undertaking their own research is contempt (or an
offence if our
recommended statutory offence is adopted) and punishable by fine or
imprisonment. Jurors should receive these
directions when they take their
oath or affirmation and should be reminded of them throughout the trial.
We recommend
more comprehensive and consistent directions that provide
jurors with a clear explanation of why their decision must be
based only on
the evidence presented in court and the risks if they undertake their own
research. This recommendation, together
with our other recommendations, if
implemented, should reduce the prospect of jurors being discharged, trials
abandoned and
prosecutions for the new offence. These outcomes would also avoid
significant costs for the state and the parties involved, including
the
jurors.
333 See chapter 2 at [2.7]. Also recently in the United Kingdom a trial had to be abandoned after a juror deliberately researched information about a defendant on his mobile phone and then disclosed the results to other members of the jury. The abandoned trial resulted in the waste of approximately £80,000 of costs to the Court Service and Court Prosecution Service: Attorney General’s Office (UK) “Two jurors found guilty of contempt of court” (press release, 9 June 2016).
334 ATH Smith “Repositioning the law of contempt: the Criminal
Justice and Courts Act 2015” (2015) 11 Crim LR 845 at 846.
Reforming the law of contempt of court: A modern statute 79
CHAPTER 4: Juror contempt
More consistency of approach when informing jurors about their
ability to ask questions
4.53
4.54
4.55
4.56
4.57
Although it is relatively uncommon for jurors to do so, they may ask
questions during the trial.335 The current process is formal:
jurors must write questions down and pass them to the court attendant who
will then pass them
on to the trial judge.
We understand the guidance
that judges conducting jury trials use covers how judges should inform and
direct juries around
how they may ask questions. The form of any direction
given, however, falls to the discretion of the trial judge so the approach
adopted is not necessarily consistent. In the Issues Paper the Commission
proposed providing jurors with more consistent and
clearer instructions about
their ability to ask questions. This was because if jurors are more actively
engaged in the court they
may be less susceptible to conducting their own
inquiries.
Very few submitters commented on this proposal, but our
discussions with judges have been informative. Some judges are understandably
reluctant to encourage questions because of the potential for jurors to
disrupt proceedings with irrelevant or inadmissible
questions thereby
lengthening trials. Jurors asking questions can also be seen as contrary
to the adversarial process.
A defendant is entitled to the presumption of
innocence until proven guilty and it is for the prosecution to make its case.
It
is not for the jury to fill in any gaps that the prosecution may have failed
to address.
On the other hand, if jurors are not able to have their
questions answered in court they may take matters into their own hands.
We
were told, for example, of one case where jurors wanted to ask a question, but
the judge refused permission so one of the
jury then went online looking for
an answer.
We accept that the use of questions by jurors must be
controlled and only used where necessary and appropriate. We are satisfied
the
current practice for trial judges advising jurors on their ability to ask
questions is appropriate. We would, however,
encourage trial judges to
consider whether it might be desirable to give juries comprehensive directions
regarding asking questions
in order to dissuade jurors from conducting their
own inquiries. Raising questions with the judge is preferable.
DISCLOSING INFORMATION
4.58
4.59
4.60
As already explained in the introduction to this chapter, jury
deliberations should be confidential. Jurors should
not answer
questions or give out information about their deliberations to anyone
during or after a trial. The
Full Court of the High Court in
Solicitor- General v Radio New Zealand Ltd identified three
reasons for the confidentiality of jury
deliberations.336
First, confidentiality promotes free and
frank discussion between jurors, who may otherwise feel inhibited if their
views
could later be aired publicly and subjected to public scrutiny and
attack. The very nature of a jury trial requires juries,
who represent a
snapshot of society, to express their views confidently to each other during
deliberations. Jurors should
not be afraid their views will subsequently be
exposed in public, or the jury system would not work.
Second,
confidentiality protects the finality of verdicts. Exposing jury
deliberations may wrongly open verdicts
up to public challenge. A verdict
does not get its legitimacy from the reasoning or deliberation process taken
by individual
jurors, but because it is supported by a
335 Evidence Act 2006, s 101.
336 Solicitor-General v Radio New Zealand Ltd, above n 291, at 53;
see also Smith v R, above n 299, at [25]–[28].
80 Law Commission Report
substantial majority of the jurors, irrespective of the different routes by
which individual jurors came to agree on that verdict.
The Court of Appeal has
commented that:337
4.61
4.62
4.63
4.64
4.65
4.66
The prospect of one or more jurors being cross-examined on their
affidavits and possibly being the subject of evidence in rebuttal
is
extremely unattractive [and] would, potentially at least, have a very
detrimental effect on the jury system.
Third, confidentiality of
deliberations protects the privacy of jurors. Jurors should be able to
serve knowing their privacy
will be respected and their identity will not be
disclosed. They will not be interviewed about their deliberations or called upon
to explain or justify their verdict.
Where a juror discusses any
aspects of the trial, including juror deliberations, outside the jury room,
he or she may be in contempt.
Since the courts in New Zealand have not
addressed this issue, the scope of juror contempt in this context is not
clear. During
the trial, where a juror discusses the case in breach of a
direction given by the judge, the juror may be in contempt of court
under
section 165 of the Senior Courts Act 2016 or section 212 of the District Court
Act
2016.338 It seems unlikely that these sections continue
to apply after the trial is completed and the jury released.
The
position at common law is unclear, but applying the general principles of
contempt it is likely that a juror will be in
contempt if he or she discloses
information or communicates with external parties after being directed not to
do so.339
It also seems that both a journalist who approaches
a juror to elicit comment about a decision and a person who publishes
information
about a jury’s deliberations elicited from an interview with
a juror are likely to be in contempt.340 In
Solicitor-General v Radio New Zealand Ltd,341 a journalist
approached some people who had been jurors in the trial of David Tamihere
for the murder of two Swedish tourists
when new evidence was discovered
years later. Radio New Zealand broadcast the comments of one juror who
spoke at length
to the reporter. Radio New Zealand was found to be in
contempt and fined $30,000. Interestingly, the juror was not
charged.
Section 76 of the Evidence Act 2006 provides that a person
must not give evidence about the deliberations of a jury. This
rule does
not prevent a person from giving evidence relating to the competency or
capacity of a juror, or matters that
are believed to disqualify that
juror.342 A judge may allow evidence relating to jury deliberations
to be given in exceptional circumstances, after weighing the public interest
in
protecting the confidentiality of jury deliberations generally against the
public interest in ensuring that justice is done in
those
proceedings.343
This issue was considered by the High Court
of Australia in Smith v Western Australia.344 Mr
Smith was found guilty after a jury trial. The trial judge noted that one of
the jurors was visibly upset and that the foreman
was slow to confirm that
the verdict was that of all jurors. After
337 Tuia v R [1994] 3 NZLR 553 (CA) at 557.
338 As discussed earlier in this chapter, these sections come into play whenever a juror deliberately disobeys without lawful excuse an order or direction of the court. The contempt arises from the deliberate disobeying of a judicial direction, not from the action of disclosing the jury deliberations.
339 Laws of New Zealand Contempt of Court (online ed) at [47].
340 Ursula Cheer Burrows and Cheer: Media Law in New Zealand (7th ed, LexisNexis, Wellington, 2015) at 617. In an earlier edition, the authors also suggested that it would still be contempt to publish the results of an interview even if the juror had approached the media voluntarily instead of the other way round.
341 Solicitor-General v Radio New Zealand Ltd, above n 291.
342 Evidence Act 2006, s 76(2).
343 Evidence Act 2006, s 76(3) and (4). See also: R v Tainui [2008] NZCA 119; Neale v R [2010] NZCA 167; Worrell v R [2011] NZCA 63; and
Smith v R, above n 299, at [25]–[28].
344 Smith v Western Australia [2014] HCA 3, (2014) 250 CLR
473.
Reforming the law of contempt of court: A modern statute 81
CHAPTER 4: Juror contempt
the jury was discharged, an envelope was found addressed to the
judge, with the following anonymous
message:345
4.67
4.68
4.69
4.70
4.71
I have been physically coerced by a fellow juror to change my plea to be
aligned with the majority vote. This has made my ability
to perform my duty as
a juror on this panel [sic].
As the verdict had already been
entered, Mr Smith was convicted and sentenced to imprisonment. In
Mr Smith’s
appeal against conviction, the Court of Appeal of
Western Australia held that the exclusionary rule prevented evidence
concerning the jury deliberations from being considered.346 The
High Court of Australia, however, allowed Mr Smith’s appeal against
that decision, holding:347
... free and frank deliberation by jurors would not be encouraged or
protected by applying the exclusionary rule to a case
where the very conduct
which a juror seeks to bring to the attention of the court is unlawful
harassment by a fellow juror calculated
to prevent the conscientious
discharge of the juror’s duty... Indeed, to insist on the application of
the exclusionary
rule in such a case would tend to defeat, rather than to
advance, the purpose of the rule.
In the Issues Paper the Commission
highlighted cases in the United Kingdom and United States where jurors used
social media inappropriately.
In one case, a juror was dismissed from the jury
after she asked her Facebook friends to help her decide, with the following
post:
“I don’t know which way to go, so I’m holding a
poll”.348
In New Zealand there have only been a
few cases where mainstream media have published or broadcast interviews with
jurors,
the most significant being Solicitor-General v Radio New Zealand
Ltd.349 There have also been a few instances where jurors
voluntarily approached the media; for example, following the retrial of
David Bain, there were several interviews with jurors.350 To
date, however, contempt proceedings have not been taken in New Zealand
against jurors for post-verdict disclosures of this
nature.
In the
United Kingdom, confidentiality of jury deliberations is protected by
statute. It is an offence for a person intentionally
to disclose
information about statements made, opinions expressed, arguments advanced
or votes cast by members of
a jury in the court of their
deliberations in proceedings before a court or to solicit or obtain such
information.351 A number of states in Australia also have statutory
offences for the disclosure of deliberations.352
Social media
platforms such as Facebook and Twitter provide means to effect
wide-reaching communications quickly and often
with little thought given
to the consequences. Given the ease of sharing information, the Commission
considered legislation
would usefully clarify the law concerning disclosure
of jury deliberations in New Zealand. The Commission proposed a statutory
offence for anyone, including a person who is, or has served, on a jury, to
disclose or publish details of a jury’s deliberations,
or for anyone to
solicit such information.
345 Smith v Western Australia, above n 344, at [5].
346 Smith v The State of Western Australia [2013] WASCA 7, (2013) 226 A Crim R 541.
347 Smith v Western Australia, above n 344, at [34]–[35].
348 Urmee Khan “Juror dismissed from trial after using Facebook to help make a decision” The Telegraph (online ed, United Kingdom, 24 November
2008).
349 Solicitor-General v Radio New Zealand Ltd, above n 291.
350 In an article in The New Zealand Herald, a juror shared her experience of serving on the jury and the trauma she suffered as a result: see David Fisher “Bain juror: we were hounded” Herald on Sunday (online ed, Auckland, 7 June 2009). While the article did not touch on the deliberations of the jurors, it probably disclosed more information than has ever been published previously: Cheer, above n 340, at 619.
351 Initially, the protection was in the Contempt of Court Act 1981 (UK), but the section was repealed for England and Wales (but not Scotland)
by s 74 of the Criminal Justice and Courts Act 2015 and a strict liability rule imposed in section 20D of the Juries Act 1974.
352 Juries Act 1967 (ACT), s 42C; Jury Act 1977 (NSW), ss 68A-68B; Juries
Act 2000 (Vic), s 78; Jury Act 1995 (Qld), s 70; Juries Act (NT), s 49A; Juries
Act 2003 (Tas), s 58; Juries Act 1957 (WA), pt IXA.
82 Law Commission Report
Statutory offence?
4.72
4.73
4.74
4.75
As with the other proposals relating to jurors, only a few
submitters commented on this proposal. Of those who responded,
most agreed
that a statutory offence should replace the common law in this area,
primarily to provide clarity of the current
law and ensure free and frank
deliberations and the privacy of jurors would not be compromised.
TVNZ,
however, questioned whether the current law and the Commission’s
proposal to clarify it in statute was too protective
of jurors. TVNZ felt
the restrictions were historical and, in an age where freedom of
information and expression is at
the fore, the Commission should consider
a more open approach. APN News and Media Ltd agreed it should be an offence
for anyone,
including a person who is serving or who has served on a jury,
to disclose or publish details of a jury’s deliberation,
but did not agree
there is any need to render attempts to privately solicit information from
jurors an offence.
After considering these views we recommend the
enactment of a statutory offence for any person, including a person who
is
serving or has served on a jury, intentionally to disclose, solicit or
publish details of a jury’s deliberations. This
is consistent with the
approach that has been taken in England and Wales.353 Keeping
juror deliberations confidential is paramount to the administration of justice
and clarifying this offence in statute would
make the importance of this clear.
If disclosing juror information is an offence, we also think soliciting that
information should
be an offence. This sets a clearer line than the common law
and provides better guidance to the media and others who are likely
to publish
material relating to a trial.
We think, however, that there should be
some exceptions so that disclosure would be permitted in some
circumstances.
Exception – disclosure of juror misconduct
4.76
4.77
4.78
In the Issues Paper the Commission proposed an exception for, or defence
enabling, disclosure of jury deliberations where the
court was concerned that
there had been juror misconduct. The Commission suggested either providing for
a specific and relatively
narrow avenue of complaint to one or more official
persons and bodies, as is the approach in the United Kingdom,354 or
taking a broader approach and providing for a general public interest
defence.
Submitters agreed that where a juror believes there has been
juror misconduct the juror should be allowed to disclose information.
Submitters were split, however, on whether there should be a relatively
narrow avenue of complaint or a broad public interest
defence. Under a narrow
avenue of complaint, the juror would be protected where the information was
disclosed during the trial
to the trial judge. After the trial was completed
and the juror discharged, the narrow avenue approach would allow the juror
to disclose the information to specified persons such as the Police or the
Solicitor-General. Disclosure to defence counsel
or to the Crown prosecutor
might also be appropriate. Under the other option of a public interest
defence, the juror would have
a defence that there had been something in the
jury’s deliberation that might undermine the administration of justice
and
the integrity of the jury system, which would clearly make it in the public
interest to disclose.
We recommend enacting a narrow exception to the
non-disclosure of jury deliberations offence. We recommend this option, rather
than the alternative of a public interest defence, because
it
353 Juries Act 1974 (UK), s 20D. As at publication, this provision is in force but has not been inserted into the publicly available version of the Act on legislation.gov.uk. The text of the provision can be found in the Criminal Justice and Courts Act 2015 (UK), s 74.
354 Juries Act 1974 (UK), s 20F.
Reforming the law of contempt of court: A modern statute 83
CHAPTER 4: Juror contempt
4.79
4.80
provides an avenue that continues to protect the information and also
provides a safe harbour for jurors or others so they
can, where it is
necessary, make a disclosure.
During the course of the trial, jurors
should only disclose information to, and raise concerns about misconduct
with, the
trial judge. The exception should allow the trial judge to
disclose information as necessary for the purposes of dealing with
the case,
and for the purposes of an investigation by the Police into whether an offence
has been committed.
After the proceedings have been completed or the
jury has been discharged, any person should be able to make an excepted
disclosure
on a confidential basis to one or more specifically listed official
persons or bodies where the person has reason to believe that
an offence may
have been committed or that the conduct of a juror may provide grounds for
a mistrial or an appeal. The specific
persons or bodies would be restricted to
the Police, the Solicitor-General, counsel who acted for the Crown, or defence
counsel.
The exception would then allow those receiving the information
to use it for the purposes of any investigation by the Police
into whether an
offence has been committed or for the purposes of assessing whether there
may have been a mistrial or grounds
for an appeal. The exception recognises
that those receiving disclosures under the exemption may need to share the
information
between themselves in order to assess, evaluate and act on
it.
Exception – research into juries
4.81
4.82
In the Issues Paper the Commission also asked whether there should be
an exception to the statutory offence of non-disclosure
of juror deliberations
for authorised academic research into juries. Submitters supported this
exception, but some qualified
that support, saying that strict criteria
should be prescribed to ensure research is approved by the relevant court
and
jurors’ privacy is protected.
The judiciary is supportive of
genuine research relating to the courts. A Judicial Research Committee
has been established
to consider all research requests for judicial
involvement in research involving the Supreme Court, Court of Appeal,
High Court and District Court (including the Family Court and Youth
Court).355 The Committee comprises judges from the Court of
Appeal, High Court and District Court. Researchers must apply through the
Office of the Chief Justice and generally require the following
details:356
. Copy of the research proposal or
an outline of the proposed research. The proposal should
have a detailed account of the methodology (including sample sizes)
that will be used in conducting the research.
. Who is
undertaking the research and the background and qualifications of those
undertaking
the research, plus copies of any previous research undertaken by them
or if that is not practicable reference to such research.
.
Where applicable, the supervisor of the research.
.
What (if any) ethical approval has been, or will be, obtained for
the conduct of the research.
. How issues of privacy
will be dealt with in terms of the publication of the research.
.
The utility of the research.
355 Courts of New Zealand “Judicial Research Committee Guidelines: Judicial Participation in Research Projects” <www.courtsofnz.govt.nz> at
1.
356 At 1–2.
84 Law Commission Report
. What involvement is required from the judiciary. If for instance it is requested that judges be interviewed as part of the research, the questions to be asked of the judges should be provided as part of the application. Similarly, if a questionnaire is to be sent to judges as part of the research then a copy of this would also be required.
. Whether any other approach has been made to the Ministry of Justice or any other person or
body relating to the research proposal.
4.83
Genuine research is important to assist society in understanding juries
and to improve the administration of justice. We therefore
recommend an
exception to the statutory offence of non-disclosure of jury deliberations
for authorised academic research into
juries. The existing Judicial
Research Committee should be responsible for authorising the research.
Exception – disclosure to health practitioner
4.84
Although not discussed in the Issues Paper, we also think it would be
necessary to have an exception that allows a juror
or former juror to
disclose deliberations to a health professional (including a registered
counsellor) treating him or her.
We think this exception is appropriate to
ensure that where jurors have been personally affected in some way by the
evidence
they heard or any aspect of the case they are able to seek appropriate
help without committing an offence. We consider that the
exception should be
confined to counsellors and other health professionals who are governed by a
code of ethics and rules of
confidentiality registered under the Health
Practitioners Competence Assurance Act 2003.
Penalty for offence
4.85
We recommend a maximum penalty of a term of imprisonment not exceeding three
months or a fine not exceeding $10,000. The discussion
around how we have set
penalty levels is found in chapter 7.357
Other measures to prevent disclosure
4.86
In the Issues Paper the Commission also asked whether the proactive
measures proposed to prevent jurors undertaking research
should be taken
to reduce the risk jurors will disclose details of deliberations.
Specifically the Commission proposed:
(a)
(b) (c)
Jury service educational information provided to those called for jury
service and given to jurors before the trial could clearly
state that jurors
must not disclose information or use social media to discuss the case, and
provide the reasons for the restriction
on freedom.
The juror oath
could be amended to include a promise not to disclose information about jury
deliberations.
Jurors could receive more explicit directions before and
during the trial that they must not disclose information or use social media
to
discuss the case. They could also be given the reasons for this
confidentiality.
4.87
4.88
Submitters made very few substantive comments on this area. Those who
commented favoured preventive measures to mitigate juror
disclosure.
Jury service information provided to potential jurors when
summoned states that jurors must not talk about the trial to
anyone
who is not on the jury.358 The video presentation made to
the jury panel prior to empanelling repeats this statement. There is,
however, no further
357 See chapter 7 at [7.59]–[7.66].
358 Ministry of Justice Jury Service: Information about jury service
and being a juror (Ministry of Justice, Wellington, 2015) at 6.
Reforming the law of contempt of court: A modern statute 85
CHAPTER 4: Juror contempt
4.89
4.90
elaboration on this topic. We recommend the juror service educational
information should educate potential jurors and jurors
of the reasons for
the restrictions and the consequences. In addition, because much of the juror
publication in recent times
has been on blogs and through Facebook discussions,
there needs to be an increased focus on educating jurors that this is not
acceptable.
As we have already discussed, jurors must take an oath or
affirmation before serving as a juror. In the Issues Paper the Commission
proposed changing the wording of the oath or affirmation to include a juror
promise not to disclose information about jury
deliberations. The problem
with this proposal is that the oath or affirmation would become overly long.
We prefer not to add
this to the oath and affirmation, but instead to ensure
the judges’ directions and jury service educational material provide
sufficient coverage.
The content of judicial directions relating to
juror disclosure is currently a matter for the individual trial judge to
determine.
We understand that guidance to judges refers to advising jurors
not to talk to anyone about the trial and not to refer
to the case on
social media such as Facebook and Twitter. We think directions should
put jurors on notice that disclosing
information is an offence
potentially punishable by fine or imprisonment. Directions should also explain
clearly why the restrictions
exist, for example, to promote free and
frank discussions between jurors. Best practice would be to give these
directions
at the start of the trial and reinforce them during the
trial.
RECOMMENDATIONS
R18
R19
R20
R21
R22
R23
R24
It should be an offence for a member of the jury constituted for a
trial intentionally to investigate or research information
when he or she knows
or ought reasonably to know that it is or may be information relevant to the
case.
The maximum penalty for the offence in R18 should be a
term of imprisonment not exceeding 3 months or a fine not exceeding
$10,000.
The Ministry of Justice should be invited to review educational
information provided to those called for jury service and to jurors
to ensure it
provides adequate guidance on the problems, risks and consequences if jurors
undertake their own investigations or research.
It should be standard
practice in cases that have attracted public attention for the trial judge to
clarify whether potential jurors
have already been exposed to information
about the case to a degree that means they may not be able to try the case
fairly on
the evidence presented in court. The judiciary should be invited to
consider how to promote more standard practices amongst jury
warranted judges in
this area.
The juror oath and affirmation should be changed to ensure
the juror expressly agrees to decide the case according to the
evidence
presented in court, and not to undertake their own investigations or
research.
The judiciary should be invited to review guidelines to ensure
jurors are put on notice that undertaking their own investigations
or
research will be an offence punishable by fine or imprisonment. More
comprehensive and consistent directions that provide
jurors with a clear
explanation of why their decision must be based only on the evidence presented
in court and the risks if they
undertake their own investigations or
research should be developed and should become standard practice.
It should be an offence for any person, including a person who is or has
served on a jury, intentionally to disclose, solicit
or publish details of a
jury’s deliberations.
86 Law Commission Report
R25
The offence in R24 should be punishable:
(a)
(b)
in the case of an individual, by a term of imprisonment not exceeding 3
months or a fine not exceeding $10,000; or
in the case of a body
corporate, by a fine not exceeding $40,000.
R26
It should not be an offence under R24:
(a) (b)
for a juror to disclose information and to raise concerns about
misconduct with the trial judge during the proceedings; or
for any
person after the proceedings have been completed or the jury has been
discharged, to disclose information to one
or more listed agencies if
that person has reason to believe that an offence may have been committed
or that the conduct of a juror may provide grounds
for a mistrial or an
appeal. The listed agencies to which a disclosure may be made are the
Police, the Solicitor-General, counsel who acted for the
Crown or
counsel who acted for the defence.
R27
R28
R29
R30
R31
It should not be an offence under R24 for a juror or former juror to disclose
any information to any researcher who has an authorisation
from the Judicial
Research Committee for the conduct of research about juries or jury service or
for any researcher working under
such an authorisation to solicit such
information.
It should not be an offence under R24 for a juror or former
juror to disclose any information to a health practitioner (including
a
counsellor) registered under the Health Practitioners Competence Assurance
Act 2003.
The Ministry of Justice should be invited to review educational
information provided to those called for jury service and to jurors
to ensure it
provides adequate and clear guidance on the problems, risks and consequences
if jurors disclose information about
the case.
The judiciary should be
invited to review guidelines to promote standard practice among jury warranted
judges regarding giving directions
to jurors about the problems, risks and
consequences if jurors disclose information about the case.
Appeals in respect of the offences in R18 and R24 should be under
subpart 3 (Appeals against conviction) and subpart
4 (Appeals against
sentence) of Part 6 of the Criminal Procedure Act 2011 because the
offences in R18 and R24 are
ordinary offences and not contempt of
court.
Reforming the law of contempt of court: A modern statute 87
CHAPTER 5: Non-compliance with court orders
Chapter 5
Non-compliance with court orders
INTRODUCTION
5.1
5.2
5.3
5.4
It is fundamental to the administration of justice and the rule of law
that court judgments and orders will be enforced
against anyone who
fails or refuses to comply with them. The absence of an effective and
efficient enforcement regime would
ultimately lead to anarchy, with unsuccessful
parties simply disregarding a judgment or order against them.
As Elias CJ
and McGrath J put it in the first Siemer case:359
Effective administration of justice under our constitution requires that
the orders of the courts are obeyed unless properly
challenged or set
aside. Public confidence in the administration of the law, also necessary
for its effective administration,
requires that there is a strong
expectation that those who ignore court orders are quickly brought to
account.
This chapter concerns the contempt of failing or refusing to
comply with a court order. In civil proceedings contempt applications
remain
an important enforcement mechanism available to litigants where court orders
made in their favour are not complied with.
In criminal proceedings there are
already comprehensive statutory regimes in place for the enforcement of most
court orders made
during criminal proceedings, with contempt still playing a
role as a mechanism for addressing breaches of some suppression
orders.360
In this chapter we consider whether a new
statutory regime should be enacted to respond to non-compliance with court
orders.
THE CONTEMPT OF NON-COMPLIANCE
5.5
5.6
A person will be in contempt of court if he or she fails or refuses to
comply with a lawfully made court order.361One exception to this
general position, however, is that an order requiring the payment of money
cannot be enforced by contempt
proceedings.362 The power to commit
a person to prison for non-payment of a debt was abolished in New Zealand in
1990.363
Breaching an undertaking given to the court is
also contempt of court if, on the faith of the undertaking, the court has
sanctioned
a particular course of action.364
Jurisdiction of the High Court
5.7
This form of contempt comes within the High Court’s authority under
its common law inherent jurisdiction. At the same time,
the High Court Rules
prescribe the practice and procedure for
359 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [26].
360 See below at [5.40]–[5.41].
361 Laws of New Zealand Contempt of Court (online ed) at [54]; Siemer v Solicitor-General [2010], above n 359; Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.
362 District Court Act 2016, s 133 provides alternative mechanisms excluding contempt to enforce judgments or orders for the payment of money.
High Court Rules 2016, r 17.84(1) provides for the issue of an arrest order to enforce a court order excluding an order to pay a sum of money.
363 Section 2 of the Imprisonment for Debt Limitation Amendment Act 1989 repealed s 2 and ss 4–17 of the Imprisonment for Debt Limitation Act
1908.
364 See Malevez v Knox [1977] 1 NZLR 463 (SC) at 467; Blomfield
v Slater [2015] NZHC 2239 at [9].
88 Law Commission Report
5.8
5.9
5.10
5.11
5.12
issuing an order of arrest and committing a person for contempt of court.
The Court will not exercise its authority under its
inherent jurisdiction in
a manner that is contrary to legislative
requirements.365
Briefly, in this area of contempt, the
High Court Rules provide that the Court may issue an arrest
order366 and commit a person to prison for contempt of
court367 where a court order has been breached or where an
undertaking has been breached.368 The Rules provide that the term
of imprisonment that the Court may impose is such period as the Court thinks
necessary and is
allowed by law.369 Alternatively, the High Court
may impose a fine for contempt, an order for costs or, if appropriate, strike
out a proceeding.
Consistent with the legislative abolition in 1990 of
the power to commit a person to prison for debt, the High Court Rules
expressly
exclude committal for breach of an order to pay a sum of
money.370
The Court may also issue a sequestration order
against the property of a person held in contempt of court.371
A sequestration order authorises a person appointed by the Court as the
sequestrator to take possession of all the real and personal
property of the
party against whom it is directed.372 Sequestration is an ancient
remedy originating in the Courts of Chancery in Elizabethan times.373
It is available only as a last resort374 and only where the
person has wilfully disobeyed the court order.375 It has been mostly
used in cases where an order has been disobeyed by a corporate body, where
committal would not be available.376
The Rules provide a
power for the Court to commit a party to prison for wilfully failing
to comply with an interlocutory
order377 or for wilfully
failing to comply with an order for discovery or for the production
or inspection of documents.378 The Rules also address
circumstances in which a person who is not a party to the proceedings may be
committed for contempt
of court for wilfully failing to comply with an order
for discovery.379
The High Court’s authority under its
inherent jurisdiction is considered wider than the powers contained in the
High Court
Rules. As pointed out in McGechan on Procedure,
“[t]he very
365 Zaoui v Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577 (SC) at [36]; and R v Moke [1996] 1 NZLR 263, (1995) 13 CRNZ 386 (CA) at 391. See also
McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SC12.02].
366 Rule 17.84.
367 Rule 17.85.
368 Rules are made under s 148 of the Senior Courts Act 2016 for the purposes specified in ss 145–146; s 147 of the Act continued in force the High Court Rules set out in Schedule 2 of the Judicature Act 1908; the relevant rules are in pt 17, subpt 7 of the High Court Rules 2016 – “Arrest orders and sequestration orders”, r 7.48, dealing with the enforcement of interlocutory orders by committal, and r 17.6, dealing with enforcement against non-parties.
369 The Supreme Court has determined that the court could imprison a person for contempt for no more than three months and/or fine them:
Siemer v Solicitor-General [2010], above n 359, at [66]–[68].
370 Rule 17.84(1). Further, no writ of arrest may be issued in respect of non-compliance with an order that amounts in substance to the payment of a sum of money such as a decree for specific performance of a contract where performance involves payment of money; see Summer & Winter Fuels Ltd v Pickens (1990) 4 PRNZ 621 at 623.
371 Rule 17.87, which replaced r 610 (as from 1 February 2009).
372 Rule 17.86.
373 Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at 615.
374 Morris v Douglas [1996] NZHC 1637; (1996) 10 PRNZ 363 at 366.
375 Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union, above n 373, at 615.
376 David Eady and ATH Smith Arlidge, Eady and Smith on Contempt (4th ed, Sweet & Maxwell, London, 2011) at [14-129]. As the authors also note this sanction has been used against trade unions in the course of industrial disputes; see also [14-132]. The leading New Zealand case, Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union, above n 373, concerned an application against a trade union.
377 Rule 7.48, which provides that, if a party fails to comply with an interlocutory order, a judge can, subject to any express provision in the Rules, make any order thought just, including an order that the party be committed. The rule provides that an order may not be enforced by committing the person in default to prison unless he or she has been served personally or he or she had knowledge or notice of the order and sufficient time to comply with it.
378 Rule 8.33.
379 See rr 8.21 and 8.33.
Reforming the law of contempt of court: A modern statute 89
CHAPTER 5: Non-compliance with court orders
5.13
character of the inherent jurisdiction defies defining its
scope.”380 The inherent jurisdiction can be invoked, for
example, in response to the actions of persons who are not themselves
actual
litigants in the matter before the Court.381
The
Court may exercise its powers under the High Court Rules to enforce an
order on the application of the party entitled
to the benefit of the
order.382 The Rules also provide for enforcement by a
non-party where the non-party obtains an order.383 In addition
the Solicitor- General may bring an application in the same way as in respect
of other forms of contempt.384
When bringing an application,
the Solicitor-General is not acting on behalf of the party in the civil
proceeding or on behalf
of the government, but is acting as a Law Officer of
the Crown in the performance of his or her duty to safeguard the administration
of justice.385
Jurisdiction of the District Court, Family Court and Environment
Court
5.14
The District Court Act 2016, which came into force on 1 March 2017,
replaced the District Courts Act 1947. It confers
on the District Court
and also on the Family and Environment Courts, which both partly source
their jurisdiction from
the new Act, statutory jurisdiction to enforce some
court orders by detention for contempt.386 Section 134 of the
District Court Act provides that:387
134 Judgment or order in nature of injunction, etc
(1)
This section—
(a) (b)
(c)
applies to a judgment or an order in the nature of an injunction;
and
applies to a judgment or an order within the competence of the court
that, if it were given or made in the High Court, could be enforced
in the
High Court by a writ of arrest; but
does not apply to an order for
the recovery of land.
(2)
A judgment or an order to which this section applies may be enforced, by order or warrant of a
Judge, by detention for a term not exceeding 3 months.
5.15
5.16
The Act also provides for the enforcement of any order for
discovery (including one for particular disclosure of a document
against a
non-party) by detention for contempt.388 The maximum penalty is
again a term not exceeding three months or a fine not exceeding
$1,000.389
There was uncertainty over the scope of the
contempt jurisdiction conferred by the earlier
1947 Act, particularly as it applied to orders made by the Family Court. The
High Court in the
2009 decision KLP v RSF [Contempt of court]
determined that the general ancillary jurisdiction conferred on District
Courts under section 41 of the earlier District Courts
Act 1947 was
broad
380 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SC12.02].
381 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SC12.02].
382 See rr 17.84 and 17.87 for the rules governing applications by the parties. An originating application is brought by the Solicitor-General in the same way as it is in other contempt proceedings.
383 Rule 17.6(1).
384 Siemer v Solicitor-General [2010], above n 359, at [6] and [41].
385 This well-established position was expressly noted by the High Court in Solicitor-General v Siemer HC Auckland CIV-2008-404-472, 8 July 2008 at [47].
386 District Court Act 2016, s 134. Section 16 of the Family Court Act 1989 applies the District Court Act 2016, with some exceptions, to the Family
Court and Family Court Judges in the same manner and to the same extent as it applies to the District Court and District Court Judges. Section
278 of the Resource Management Act 1991 provides that the Environment Court and Environment Court Judges have the same powers that the
District Court has in the exercise of its civil jurisdiction.
387 Section 136 of the Act makes alternative provision for an order for the recovery of land. It provides that a judgment or an order for the recovery of land may be enforced under a warrant for the recovery of land.
388 District Court Act 2016, s 135.
389 District Court Act 2016, s 135.
90 Law Commission Report
enough to encompass the ability to punish a party to proceedings for
contempt if that party refused to comply with a lawful
order of the
court.390 Section 41 provided:
41. General ancillary jurisdiction
Every Court, as regards any cause of action for the time being within its
jurisdiction, shall (subject to the provisions of section
59) in any proceedings
before it —
(a)
(b)
grant such relief, redress, or remedy, or combination of remedies,
either absolute or conditional; and
give such and the like effect to
every ground of defence or counterclaim equitable or
legal—
5.17
5.18
5.19
5.20
as ought to be granted or given in the like case by the [High Court] and
in as full and as ample a manner.
The High Court adopted a broad
interpretation of this provision and said its effect was that the District
Court had the same power
as the High Court to grant relief, redress or
remedy in the manner sought.
The Family Court applied KLP v RSF
on a number of occasions.391 The decision gave the Family Court
confidence that it could enforce most orders by contempt, whereas before
the decision the
position was considered uncertain.392 Following
the KLP v RSF decision in 2009, the Family Court relied on section 41 and
occasionally imprisoned a litigant for contempt of court for wilful disobedience
of a court order.393 In one case a parent was sentenced to 14
days in prison for breaching a parenting order and then a further six weeks for
subsequent
wilful breaches.394 More often, however, the Family
Court simply warned parties that it had the potential to hold them in
contempt unless they complied
with the court’s
orders.395
We had reservations about founding jurisdiction to
commit for contempt on section 41. In our view it was at least doubtful whether
the provision was a sufficiently clear platform on which to base a punitive
power of this type. This matter had not been before
the senior appellate
courts. Where loss of liberty was at stake the law should clearly state a
court’s power.396
The new District Court Act 2016
has replaced section 41 with a provision that might be interpreted more
narrowly by
the courts. The new provision (section 84) is entitled
“Remedies” and provides that, in a proceeding, a Judge may:
... in the same way as a Judge of the High Court in the same or a
similar proceeding –
(a) (b)
(c)
grant any remedies, redress, or relief:
dispose of the
proceeding:
give effect to every ground of defence or
counterclaim, whether legal or equitable.
5.21
The District Court’s powers under section 84 are not as clear as they
could be. It is not obvious whether the language of
this provision can or will
be interpreted widely enough to allow for the
390 KLP v RSF [Contempt of court] [2009] NZFLR 833 (HC) at [49]–[50].
391 Examples are JMC v AHB FC Dunedin FAM-2008-012-000055, 10 June 2010; TAL v BKL FC Tauranga FAM-2010-070-000207, 5 October
2011; JMC v AJH-B [2012] NZFC 2711; Chief Executive of Ministry of Social Development v ETM [2012] NZFC 434.
392 See for example the earlier case Y v Y (1994) 12 FRNZ 176 (FC) at 190 where Judge Boshier considered that the position was simply too unclear to hold a parent who had deliberately obstructed the enforcement of an access order in contempt of court.
393 See for example, JMC v AHB, above n 391; JMC v AJH-B, above n 391; Chief Executive of Ministry of Social Development v ETM, above n 391.
394 JMC v AJH-B, above n 391, at [51]–[52].
395 For example, MAM v HLL [2012] NZFC 4511 at [13].
396 Y v Y, above n 392.
Reforming the law of contempt of court: A modern statute 91
CHAPTER 5: Non-compliance with court orders
5.22
punishment of contempt of court. It is also unclear whether the District
Court, the Family Court or the Environment Court, which
source some aspects
of their jurisdictions from the District Court Act 2016, can make
sequestration orders. This issue has
not been tested in the courts, although
a line of United Kingdom cases on equivalent provisions suggests that the
District
Court may possibly be able to make sequestration orders under section
84.397
The extent of the District Court’s powers,
and those of other courts sourcing jurisdiction through the District
Court
Act, in respect of non-compliance with court orders could helpfully be
clarified by legislation.
Proving contempt
5.23
Any applicant seeking to enforce a civil judgment by contempt proceedings
must prove to the criminal standard of beyond reasonable
doubt
that:398
(a) (b)
(c) (d)
the terms of the court order were clear and unambiguous and binding on
the defendant;
the defendant had knowledge or proper notice of the
terms of the order, normally as the result of personal
service;399
the defendant acted in breach of the terms of the
order; and the defendant’s conduct was
deliberate.
5.24
It is unnecessary to establish whether a defendant knew he or she was
breaching a court order. It is sufficient to show the relevant
actions were
deliberate.400 The fact a person’s liberty may be affected
means the standard of proof is the criminal standard.401
The
courts have established the above elements in case law, but they are not in
statute or in the
High Court Rules.
Collateral challenges to validity of original order not
permitted
5.25
It is not open to a defendant in contempt proceedings to challenge the
validity of the order said to have been breached.
The courts have been clear
that people are not free to ignore court orders simply because they believe
they lack foundation and
should not have been made. The defendant must comply
with the order while it is in force, and unless and until it is set aside.
It is no answer to an allegation of contempt to assert that the underlying
order was wrongly granted.402 The law is clear. As the majority
of the Supreme Court stated in the second Siemer
case:403
397 The question was discussed in B v T [1990] NZFLR 373, (1990) 5 FRNZ 328 (FC) at 332 per Judge Inglis QC.
398 These four elements are identified in most recent cases. See for example Zhang v King David Investments Ltd [2016] NZHC 3018 at [39]; Shawyer v Thow HC Invercargill CIV-2010-425-000116, 20 October 2011 at [28]; and Lockwood Group Ltd v Small HC Auckland CIV-2009-404-1019,
21 April 2010 at [65]. In Solicitor-General for New Zealand v Krieger [2014] NZHC 172 at [24]–[26], Panckhurst J combines the first two requirements so identifies only three elements that must be proved. In Zhang v King David Investments Ltd at [39], Palmer J referred to the Law Commission’s Issues Paper to summarise the law on this point.
399 The court will not hold a person in contempt unless satisfied that the person had proper notice of the order. In one case, the Judge declined to issue a committal warrant because the applicant had waited too long before seeking to enforce an order requiring the defendant to vacate premises. The order in question required the defendant to vacate by 31 December 1991, but the defendant was not served with the “Notice as to Consequences of Disobedience of Order of Court” until two months after the date, by which time it was impossible for him to heed the warning and obey the order. See Wellington City Council v Ivanoff [1992] DCR 727.
400 This position was confirmed by the Court of Appeal in Siemer v Stiassny [2007] NZCA 117, [2008] 1 NZLR 150 at [10]. The Court acknowledged that there was some authority that seemed to go the other way, but that the weight of authority favoured the view they had taken. The Court said that a bona fide breach of an order, which resulted from erroneous legal advice as to the scope of the order, is nonetheless a contempt of court. If there is anything unclear about the scope of an order, it is open to the party to ask the court for clarification. A party should do this rather than take the risk.
401 Siemer v Solicitor-General [2010], above n 359, at [33]; Siemer v Stiassny, above n 400, at [11].
402 Siemer v Solicitor-General [2013], above n 361, at [188]–[226].
403 Siemer v Solicitor-General [2013], above n 361, at
[191].
92 Law Commission Report
Provided the court had power to make an order of its kind, a court
order is binding and conclusive unless and until it is
set aside on
appeal or is for some other reason lawfully quashed. Collateral attacks on
such orders are not permitted. Neither
the parties, nor other persons subject
to an order, are permitted to arrange their affairs in accordance with their
perceptions
of its flaws, including any individual views they may have
concerning the validity of the order. The position is the same whether
the
order has been made in the High Court or in the District Court.
Civil and criminal contempt no longer distinguished
5.26
5.27
5.28
5.29
The law has traditionally classified contempt as either a civil or a
criminal contempt. The distinction is not dependent on
whether the underlying
order was made in criminal or civil proceedings, but on the nature of the
breach or non-compliance. Failures
to comply with court orders or undertakings
are normally classified as civil contempts, although some breaches of court
orders
are considered criminal contempt.404
The conceptual
distinction between civil and criminal contempt is not clear because it
turns on whether the contempt involves
conduct that so threatens the
administration of justice it requires punishment from the public point of
view. If it does,
it is a criminal contempt, even when the contempt itself
takes the form of a breach of a court order made in civil
proceedings.405
McLachlin J in the Supreme Court of Canada
explained the distinction:406
A person who simply breaches a court order, for example by failing
to abide by visiting hours stipulated in a child
custody order, is viewed as
having committed civil contempt. However, when the element of public defiance
of the court’s
process in a way calculated to lesson societal respect for
the courts is added to the breach, it becomes criminal.
Under the
traditional dichotomy, the law conceptualises criminal contempt as punitive
and concerned with punishing actions
or words that obstruct or interfere
with the public interest in the administration of justice. Meanwhile it
views civil
contempt as primarily remedial or coercive in nature because
it is concerned with compelling compliance with the court’s
order
through the threat of punitive sanctions.407 The courts, however,
have said on numerous occasions that the validity of the traditional
distinction is highly questionable.
In 2014, in Solicitor-General for New
Zealand v Krieger, Panckhurst J summarised the illusory nature of the
traditional distinction:408
[T]he validity of this distinction has been doubted in many
jurisdictions. A true dichotomy does not exist. Civil contempt,
in common
with criminal contempt, is similarly focused upon the due administration of
justice. The remedial punishment for
a civil contempt will benefit a litigant,
but the Court intervenes in direct response to the disobedience of its order.
Hence,
civil contempt vindicates both the right of the successful litigant and
equally the authority of the Court. As Salmon LJ put
it, the two objects are
inextricably intermixed.
The traditional distinction overlooks the
underlying rationale behind every exercise of the contempt power, namely that
of upholding
and protecting the administration of justice. Even if civil
contempt is coercive, it is also punitive and shares the attributes
normally
associated with criminal contempt.409 It is only because the
disobedience of the courts’ orders interferes with
the
404 Eady and Smith, above n 376, at [3-4]–[3-11].
405 Eady and Smith, above n 376, at [3-1]. See also the discussion of the difference between civil and criminal contempt in the Supreme Court of
Canada’s decision in Poje v British Columbia (Attorney-General) [1953] 1 SCR 516 at 522.
406 United Nurses of Alberta v Alberta (Attorney-General) [1992] 1 SCR 901 at 931.
407 Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990) at 435.
408 Solicitor-General for New Zealand v Krieger, above n 398, at [23]. See Jennison v Barker [1972] 2 QB 52 at 62G for Salmon LJ’s decision.
409 Maxton, above n 407, at 437.
Reforming the law of contempt of court: A modern statute 93
CHAPTER 5: Non-compliance with court orders
fair administration of justice that it is contempt and punishable by
imprisonment in the same way as criminal contempt.410
Procedural protections applied in the first Siemer
case
5.30
5.31
As already mentioned in chapter 1,411 the Supreme Court
decided in the first Siemer case that the fair trial rights under
section 24 of the New Zealand Bill of Rights Act 1990 (NZBORA) apply to all
defendants
facing allegations of contempt, whether civil or criminal, because
they are potentially at risk of imprisonment.412 Although the Court
did not directly address whether there was still a distinction between
criminal and civil contempt, the consequence
of the Court recognising these
criminal law protections apply in all contempt cases is that the distinction
is no longer a helpful
one.413
In New Zealand law civil and
criminal contempt are therefore now almost indistinguishable. In
both:
. the criminal standard of proof
applies;
. the right to be released on bail, on
reasonable terms and conditions, applies;
. the
maximum sentence of imprisonment is the same;
. the
same rights to legal representation apply under section 24(f) of NZBORA,
including the
right to receive legal assistance without cost if the interests of
justice so require and the person does not have sufficient
means;
.
rights to natural justice and a fair trial apply, including the
right against self-incrimination
and the right to be heard properly;
. the
defendant must be given proper and adequate notice of the particulars of the
allegations;
and
. equivalent rights of appeal
apply.414
Purging the contempt
5.32
One remaining difference between civil and criminal contempt, however, is
that civil contempt can be purged or made good by
the person complying
with the original court order. If the person does this, he or she may apply
to the relevant court to
have a committal or sequestration order
discharged.415 The person can comply with the original order
and end the penalty. This is because civil contempt is primarily remedial
or coercive and has successfully compelled compliance with the
court’s order.416 Criminal contempt cannot be purged in
the same way, although compliance with the order, where it occurs
before sentencing
will mitigate the penalty.417 The punishment
must therefore be completed.
410 Laws of New Zealand Contempt of Court (online ed) at [5].
411 See [1.6].
412 Siemer v Solicitor-General [2010], above n 359, at [57].
413 In his paper, Professor ATH Smith concluded, following his analysis of the Supreme Court’s decision, that “[i]t is not entirely straightforward to say, after the decision in Siemer, what remains of the traditional distinction between civil and criminal contempts”: ATH Smith Reforming the New Zealand Law of Contempt: An Issues/Discussion Paper (Crown Law Office, April 2011) at [6.22].
414 Although the statutory basis for appeals differs, appeal rights do not differ in substance. Civil contempt rulings are currently subject to appeal under the Senior Courts Act 2016, s 56 and the District Court Act, s 124, while criminal contempt rulings are subject to appeal under pt 6, subpt
5 of the Criminal Procedure Act 2011.
415 Section 193 of the District Court Act 2016 expressly provides for the discharge of a person, if at any time it appears to the satisfaction of a judge of the court that a person detained for contempt ought to be discharged for any reason. The judge may order discharge upon such terms as he or she thinks fit.
416 See Queen Elizabeth the Second National Trust v Netherland Holdings Ltd [2014] NZHC 1094, [2015] NZAR 1815 at [23]–[24].
417 Forest v R [2016] NZHC 3198 at [14].
94 Law Commission Report
Penalties available to the courts
5.33
5.34
The usual penalty for civil contempt is the imposition of a fine. Courts
exercise the power to imprison for civil contempt
with great care and
caution. They will not impose an order of committal to prison where
the non-compliance has been
accidental or unintentional or is of a minor
or technical nature.418 Courts do not order imprisonment
unless the contempt involves fault or misconduct.419 The
maximum term of imprisonment that the District Court, Family Court or
Environment Court can impose for breach of an order
is three months and the
maximum fine is $1,000, while the maximum term of imprisonment that can be
imposed by the High Court is
two years and there is no limit on the maximum
fine.420
In the first Siemer case the Supreme Court
decided that, because common law contempt must be tried summarily, section
24(e) of NZBORA restricted
the maximum sentence that could be applied to under
the level set at which a person was guaranteed the right to a jury
trial.421 At the time of the Supreme Court decision that maximum
was three months’ of imprisonment. This was the same maximum applying
in
the District Courts at the time. In 2013, however, section
24(e) was
amended and the maximum period was increased to two years. As a consequence,
the maximum penalty for contempt at common
law also increased to two years,
raising issues of parity with penalties available for breaches of District
Court orders. The difference
in maximum penalties between the courts is now
an anomaly which we address below at [5.73]–[5.74].
Application of sentencing principles
5.35
5.36
When determining an appropriate penalty, courts generally have a
discretion. The court must consider the extent of the contempt,
the
defendant’s motive, and the prejudice suffered by the innocent
party.422 A Full Court of the High Court has stated that a penalty
ought to be assessed applying a methodology akin to that used for sentencing
a
criminal offender.423
We consider below at [5.68] and
[5.69] whether legislation should expressly apply the methodology and
principles
in the Sentencing Act 2002 to sentencing for contempt.
RELATED ENFORCEMENT REGIMES
5.37
Before discussing the issues with the current law, it is convenient to note
the existing statutory enforcement regimes related
to contempt. In respect of
orders made in criminal proceedings, statutory enforcement regimes have
almost completely replaced
contempt as a means of enforcement.
Sentencing decisions
5.38
The enforcement of all sentencing decisions is now statutory. Custodial and
community-based sentences are enforced under the Sentencing
Act. Fines and
reparation orders are made under the Sentencing Act and enforced under Part 3
of the Summary Proceedings Act
1957.424 Under Part 3 a registrar
or judge of the District Court may issue an attachment order or
order seizing property where
a person defaults and does not pay a fine
or comply with an order
418 Soljan v Spencer [1984] NZCA 34; [1984] 1 NZLR 618 (CA); Morris v Douglas, above n 374, at 366.
419 In a number of cases, the courts have determined that the elements of contempt are made out, but that sanctions, particularly committal or sequestration, are not appropriate. See for example Lockwood Group Ltd v Small HC Auckland CIV-2009-404-1019, 21 April 2010, at [68].
420 Siemer v Solicitor-General [2010], above n 359, at [66]–[68].
421 Siemer v Solicitor-General [2010], above n 359, at [67]; and New Zealand Bill of Rights Act 1990, s 24(e).
422 Lockwood Group Ltd v Small, above n 419, at [68].
423 Solicitor-General v Miss Alice [2007] NZHC 48; [2007] 2 NZLR 783 (HC) at [88]; also see Grant v Grewal and others [2016] NZHC 1564 at [17].
424 Section 19 of the Crimes Act 1961 applies pt 3 to orders made in the
High Court.
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CHAPTER 5: Non-compliance with court orders
5.39
for reparation.425 If those mechanisms do not prove
effective at enforcing compliance with the original order, the registrar
or judge may
have the non-complying person arrested and brought before
the court.426 A judge may then make an order imposing a substituted
sentence of community work, home detention or imprisonment.427 Once
the person has completed the new sentence, the original fine (or reparation
order) is remitted.428
Common law contempt of court therefore
has no part to play in enforcing sentencing decisions.
Suppression orders
5.40
5.41
Suppression orders made in criminal proceedings under the
Criminal Procedure Act are enforced under that Act. Although
non-compliance with a suppression order made under the Act may technically
be a contempt of court (because it involves a
breach of a court order), the
Criminal Procedure Act makes breach of a suppression order made under
the Act an offence.429 The appropriate remedy is therefore
prosecution under the Act, rather than contempt
proceedings.430
Where the courts have made suppression
orders using their inherent authority or implied powers rather than
statutory powers,
contempt provides the only enforcement mechanism. As
discussed earlier in chapter 2,431 the Supreme Court has
confirmed that breaches of such orders constitute contempt.432 The
current position is that enforcing suppression orders made under a
court’s inherent authority or implied power is a
matter for the common
law of contempt, while suppression orders made under the Criminal Procedure Act
are enforced by a prosecution
under that Act.
Other offence provisions for non-compliance with court
orders
5.42
For completeness, we mention there are several statutory regimes that have
made it an offence for a person to fail to comply with
court orders made under
the regime. There are approximately
38 such offences and we have listed
these in Appendix 1 to this Report. Non-compliance with a court order made
under these statutory
regimes may also technically be contempt of court as it
involves a breach of a court order. We consider where an Act contains
specific offence and enforcement provisions these should be used to enforce
court orders made under the Act and contempt should
not be used. Parliament
enacted these statutory provisions specifically for that purpose, whereas
contempt is a broad general remedy.
425 Summary Proceedings Act 1957, s 87(2).
426 Summary Proceedings Act 1957, s 88. See also R v Slavich HC Hamilton CRI–2006–419–000089, 6 August 2010 and 10 September 2010 and Slavich v R [2011] NZCA 457 (leave to appeal refused: Slavich v R [2011] NZSC 139). Although the operative provisions have since been changed, the case illustrates that the ultimate sanction remains one of imprisonment.
427 Summary Proceedings Act 1957, s 88AE. A person can be imprisoned under the enforcement provisions even if the original offence was not one for which they could be imprisoned. The maximum period of imprisonment will depend on the original offence for which the person was convicted. If the original offence was not punishable by more than three months imprisonment, the maximum substituted sentence is three months. If it was punishable by more than three months the maximum is one year: see s 90.
428 Summary Proceedings Act 1957, s 91.
429 Criminal Procedure Act 2011, s 211. The Bail Act 2000 imposes publication restrictions on publication of matters relating to bail and matters dealt with at any bail hearing and it is an offence under that Act for any person to publish details of a bail hearing in breach of any specific prohibition ordered by the court: Bail Act 2000, s 19.
430 Solicitor-General v Fairfax New Zealand Ltd HC Wellington CIV-2008-485-000705, 10 October 2008 at [135]–[138], though a different view has been taken in the United Kingdom: Solicitor-General v Cox [2016] EWHC 1241 (QB), [2016] 2 Cr App R 15. See discussion at [1.44] and [5.43]–[5.44].
431 See chapter 2 at [2.36]‒[2.38].
432 The majority of the Supreme Court have confirmed that where
there is no statutory power available, the courts can
use inherent powers
to make any suppression order necessary to protect or uphold the
administration of justice and protect the
fair trial rights of an accused;
Siemer v Solicitor-General [2013], above n 361, at [114] and
[188].
96 Law Commission Report
5.43
5.44
5.45
As already noted, there is some uncertainty whether these different statutory
offence provisions have fully replaced contempt.433 In
Solicitor-General v Fairfax New Zealand Ltd a Full Court of the High
Court took the view that the breaches of suppression orders should have
resulted in criminal
charges under the relevant statutory offence
provisions rather than common law contempt
proceedings.434
Contempt may, however, remain available
where it is not clear that statutory offences are explicitly or
implicitly enacted
in substitution for common law contempt. In a 2016
case in England, the High Court found two defendants who covertly
took
photographs in court and published those photographs guilty of
contempt435 even though it was a statutory offence for any person to
take pictures in court and publish them.436 The court in that case
held that the conduct could still be prosecuted as contempt even though the
statutory offence had been
created to cover this
conduct.437
We return in chapter 7 to this issue whether the
new offences should replace the common law of contempt.438
ISSUES PAPER
5.46
5.47
In the Issues Paper the Law Commission considered whether the traditional
distinction between civil and criminal contempt should
be abolished. As
already noted, following the Supreme Court decision in the first Siemer
case,439 the distinction now has minimal significance
in New Zealand.440 Civil contempt, because of the risk of
imprisonment, is treated by the courts as criminal contempt.
The
Issues Paper noted that there had been calls in several jurisdictions
for the abolition of civil contempt. In 1974,
the Phillimore Committee in
the United Kingdom concluded that the distinction was complex and
artificial and recommended
that all distinctions between civil and criminal
contempt in England and Wales should be abolished.441 In its
1987 report, the Australian Law Reform Commission recommended abolishing
the common law of civil contempt. The Commission
recommended replacing it
with statutory forms of proceedings for civil enforcement of court orders
and a separate offence
of disobedience contempt that would cover defiant
breaches of both civil and criminal court orders.442 In a more
recent 2003 report reviewing the law of contempt, the Law Reform
Commission of Western Australia concluded that
civil contempt should be
abolished and replaced by an offence.443 None of these
recommendations has, however, been adopted.444
433 See chapter 1 at [1.44].
434 Solicitor-General v Fairfax New Zealand Ltd, above n 430, at [135]–[138].
435 Solicitor-General v Cox, above n 430.
436 Criminal Justice Act 1925 (UK), s 41.
437 Solicitor-General v Cox, above n 430, at [31].
438 See chapter 7 at [7.19].
439 Siemer v Solicitor-General [2010], above n 359.
440 See [5.32] for discussion on the remaining differences between civil and criminal contempt.
441 Lord Phillimore Report of the Committee on Contempt of Court (House of Commons, Cmnd 5794, December 1974) at 73.
442 Australian Law Reform Commission Contempt (ALRC Report 35, 1987) Summary of recommendations at [64] and Appendix A cl 46.
443 Law Reform Commission of Western Australia Report on Review of the Law of Contempt (LRWA, PN 93 III, 2003) at 92–95 and recommendation
46.
444 In response to the Australian Law Reform Commission a
government position paper was prepared and circulated, outlining
the
Federal Government's position on the Commission's recommendations in 1992.
Although four jurisdictions initially agreed to
work together for the
purpose of agreeing on uniform contempt legislation, state and territory
interest in the project lapsed
and the project is no longer being actively
pursued; ALRC “Contempt” (12 July 2010) <www.alrc.gov.au>; The Law Reform
Commission of Western Australia’s Report was tabled in the State
Parliament on 9 September 2003. The Commission
has advised that there has been
no government feedback on this aspect of the report and the recommendation has
not been implemented.
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CHAPTER 5: Non-compliance with court orders
5.48
The Issues Paper also identified a number of other issues requiring
resolution:
(a)
(b)
(c) (d)
Whether Parliament should enact a more comprehensive statutory regime for
enforcing court orders and undertakings to clarify
and simplify the law.
The contempt of non- compliance with court orders is only partially
codified. Legislative reform
would address the uncertainty discussed in [5.16]
to [5.21] above over the extent of the jurisdiction of the District Court,
Family Court and Environment Court.
Whether the maximum penalty levels
that can be imposed should be rationalised. As discussed above at [5.33]
to [5.34], the
High Court can impose a penalty of up to two years’
imprisonment for breach of a court order, while other courts can
impose
no more than three months’ imprisonment. Fines are also limited
to $1,000 in other courts. The
significant difference in penalties
available for breaches of High Court orders and orders made by other
courts is an
inadvertent consequence of the 2013 amendment to
section
24(e) of NZBORA.
Whether reform should clarify that the
methodology in the Sentencing Act applies when determining the appropriate
penalty for
contempt.
Whether sequestration orders should be
retained. The Issues Paper suggested that sequestration could be
considered
draconian because it prevents a person from using or disposing of
their property until the contempt is purged or the order is
lifted by the
Court.445
There are now modern alternatives to sequestration
available in the enforcement arsenal and the Issues Paper asked for feedback
on
whether the remedy should be abolished.
Proposals included in the Issues Paper
5.49
In the Issues Paper the Commission suggested it might be time to
abolish contempt as a civil enforcement mechanism
to remedy private wrongs.
Imprisonment is the most punitive sanction, and the Commission suggested it
should only be available
under the criminal law, and not used for civil
enforcement. The Commission put forward a proposal to abolish contempt and
replace
it with a new offence (option 1). As an alternative, the Commission
proposed retaining contempt but in a statutory form (option
2).
Option 1: Abolish civil contempt and have a new statutory
offence
5.50
5.51
The Commission proposed removing contempt proceedings from the
civil enforcement measures available to litigants.
A new statutory offence
would be created in its place.446 The offence would be prosecuted
in the usual way and would be available to punish the types of serious
breach of court orders
currently considered criminal contempt (being breaches
that have an element of public defiance of the court’s process in
a way
that is calculated to undermine the administration of justice).
Civil
enforcement mechanisms would otherwise remain as they are, with the
enforcement of orders in the hands of the parties
affected. Contempt
proceedings for non-compliance would,
445 Morris v Douglas, above n 374, at 366.
446 Contempt is the sole remaining common law offence still recognised in Canadian law, however, Part IV of the Canadian Criminal Code (covering offences against the administration of law and justice) does include an offence of disobeying a court order. Section 127(1) of the Code provides that:
Everyone who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of
(a) (b)
an indictable offence and liable to imprisonment for a term not exceeding two years; or an offence punishable on summary conviction.
This was the type of provision the Commission envisaged, although the
Commission did not intend it would be an indictable offence.
98 Law Commission Report
5.52
however, be abolished and the courts would not be able to commit a person to
prison for failing to comply with a court order unless
the person was being
convicted of the new offence.
The Commission also proposed abolishing
the remedy of sequestration because there were now sufficient modern
enforcement remedies
available.
Option 2: Codify use of contempt for enforcing court
order
5.53
5.54
The alternative option proposed was to retain contempt where it involved
a breach of a court order, but to codify it more
fully in statute. If
retained in statutory form, Parliament could specify in the statute a clearer
framework, including expressly
applying NZBORA protections to criminal
charges. Under this option contempt would remain a hybrid between criminal
and civil
procedure, but with clear statutory limits on its use.
Option 2
was included as an alternative because Commissioners had reservations about
whether an ordinary statutory offence (option
1) would leave litigants with
sufficient civil remedies. The Issues Paper suggested that although parties
would no longer be able
to seek committal to prison or a fine, they would still
have available to them all the other existing civil enforcement tools.
Submissions and feedback
5.55
5.56
5.57
5.58
Submitters were divided on whether we should have a new statutory offence and
whether this offence should replace the contempt
of non-compliance with
court orders. Some favoured a specifically designed offence to deal with
breaches of court orders,
saying failure to comply with a court order is
as much an offence against the state as a wrong against the other party.
They were not comfortable using contempt as a mechanism of civil enforcement
and supported an end to contempt in this context.
They supported introducing
the independent prosecutorial scrutiny that would occur with an
offence.
On the other hand, some submitters were not supportive of
contempt of breaching a court order becoming an offence. The Police were
concerned Police prosecutors would become responsible for receiving complaints
regarding civil disputes and effectively, although
not legally, Police
would be prosecuting for a civil party rather than the state. Others were
concerned an offence would not
be an effective mechanism for enforcing an
order, and without contempt, there would be nothing else adequate in the
civil
enforcement options. They were concerned that because of the penalty
level involved the offence would be prosecuted in the District
Court, even where
the order being breached was a High Court order.
Most submitters,
whether they supported the proposal for an offence or not, considered it still
necessary for the courts to retain
the power to imprison a litigant to
force compliance with a court order in civil proceedings. Many questioned
how a court
could adequately enforce an order in a case like Jones v
Skelton, where a child had been abducted and the party refused to
disclose the child’s whereabouts, without being able to imprison
the
person.447 The New Zealand Law Society said this was necessary
as a last resort provided all the appropriate NZBORA protections
applied.
The District Court judges, in their comments on the Issues
Paper, argued it was important to have an effective way of ensuring
people
complied with court orders. Even if rarely used, the threat of
imprisonment was in their experience effective in achieving
compliance. They
saw no disadvantage in retaining contempt as a last resort, while abolishing
it risked creating a class of litigant
with no mechanism available to enforce
court orders.
447 Jones v Skelton [2006] NZSC 113, [2007] 2 NZLR 178; Ms Skelton
spent 79 days in prison for contempt of court and was released after her
father, the child’s grandfather,
returned the child to the Hamilton
Police station.
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CHAPTER 5: Non-compliance with court orders
5.59
In relation to sequestration orders, most submitters considered that the remedy, while rarely used, was vital as a remedy of last resort.
THE COMMISSION’S RECOMMENDED REFORMS
5.60
5.61
5.62
5.63
5.64
We have reconsidered the options put forward in the Issues Paper in light
of the matters raised by submitters. We have decided
not to proceed with
the offence in option 1 and recommend instead a variant of option
2.
We agree that the party in whose favour the court makes an
order should retain the ability to enforce that order through
the
ultimate sanction of contempt, because without contempt the party would not
have adequate civil enforcement remedies.
We agree with submitters that
prosecuting an offence does not give the party an effective remedy. Currently,
the beneficiary of
the original court order can bring an action for contempt and
we consider this should remain the case. We therefore recommend enacting
a
statutory form of contempt for responding to breaches of court orders, rather
than a criminal offence. The opportunity should
also be taken to replace the
anachronistic language of contempt in the new Act. The proposed clauses in
subpart
5 of Part 2 of the draft Bill deliberately avoid the language of
contempt.
We recommend that the new statutory provisions should
replace the common law entirely in respect of contempt involving a breach
of, or failure to comply with, a court order. Under the new clauses,
the litigant who obtained the court order
may apply to the relevant
court for an order that a person who has not complied with the court
order be punished for
non- compliance. The Solicitor-General should also be
able to bring proceedings, as is the current practice. We would expect
this
would only occur, as now, in exceptional cases and the parties would normally
take steps to enforce compliance with their
own court orders. In cases involving
high-impact, deliberate, widely publicised and repeated breaches, such as
occurred in the
first Siemer case,448 the
Solicitor-General, in her capacity as a Law Officer of the Crown, should retain
the ability to make an application. We have discussed
this approach with the
Solicitor-General who agrees with it. We are not recommending the courts should
be able to initiate this
form of contempt. As it is not contempt in the
courtroom, we consider some independent assessment and an application to the
court
are necessary preliminary steps.
We recommend the new
enforcement procedure should not be available to enforce breaches of orders
requiring the payment of a
sum of money under a court judgment or relating
to the recovery of land. In this respect, the new provision would enact
the
current law under which contempt is not available to enforce a money
judgment. We are not suggesting any return to debtor
prisons.449
The District Court Act, District Court Rules and High Court Rules
provide other enforcement mechanisms for recovery of land
or for obtaining money
owed under a court order.450
We do, however, recommend the
new enforcement procedure should apply to suppression orders made in
criminal proceedings
under the inherent authority or implied powers of the
courts.451 This would create consistency between the enforcement
of court orders in civil and criminal
proceedings.
448 Siemer v Solicitor-General [2010], above n 359.
449 The Imprisonment for Debt Limitation Amendment Act 1989 repealed provisions in the Imprisonment for Debt Limitation Act 1908 that had allowed committal for non-payment of debt.
450 See District Court Act 2016, pt 10; District Court Rules 2014, pt 19; and High Court Rules 2016, pt 17.
451 See above at [5.40]–[5.41].
100 Law Commission Report
5.65
5.66
5.67
5.68
5.69
Clause 22(1) of the draft Bill identifies court orders for the purposes
of the new provision. It covers any court order that
requires a person to do,
or abstain from doing, something that does not involve paying a sum of money
under a judgment. Orders
for the recovery of land are also excluded. The
definition includes any undertaking given to the court where, in reliance on
the undertaking, the court has sanctioned a particular course of action or
inaction. The relevant court in which the proceedings
would be brought
would be defined as the court in which the applicable court order was
made or any court to which the
proceedings have been transferred for
enforcement or any court of appeal hearing an appeal in respect of the
proceedings.
The new provision would clarify that the District Court, and those
other courts that take jurisdiction under the District Court
Act, have full
jurisdiction under the provisions.
Clause 22(4) of the Bill specifies
the elements that must be proved to the standard of beyond reasonable doubt
before the court
will make an enforcement order, which are:
.
the applicable court order was made in clear and unambiguous terms
and is binding on the
person;
. the person was given proper notice
of the terms of the court order; and
. the person has,
without reasonable excuse, intentionally failed to comply with the
applicable
court order.
The maximum penalty should be set at an appropriate
level, consistent with other forms of contempt. The maximum penalty should
be the same irrespective of which court’s order has been breached,
and irrespective of whether enforcement is being
undertaken in the District
Court or the High Court. We recommend a maximum penalty of six months’
imprisonment and a maximum
fine of $25,000. The discussion around how we have
set penalty levels is found in chapter 7.452
The Sentencing
Act should apply in respect of any sentence the court imposes under the new
provision, as if the person had been
convicted of an offence. We consider
that the methodology and principles in the Sentencing Act should apply when the
courts determine
the penalty under the new provision, and the community-based
sentences provided for in the Act should also be available to the
court.
In determining the appropriate penalty, the court should
consider the nature and gravity of the non-compliance or breach
and
should consider any relevant mitigating or aggravating factors relating
to the person. In Blomfield v Slater, Asher J, when considering the
appropriate punishment for a contempt involving a breach of an undertaking,
noted:453
[A]s with all sentencing exercises the objective seriousness of
the relevant conduct and the defendant’s
personal culpability
for the conduct must be assessed. In accordance with ordinary
sentencing principles a defendant’s
means and any personal aggravating or
mitigating factors will be taken into account.
Where breach of a court
order involves an element of public defiance of the court’s
process in a way calculated
to lessen respect for the court, the court may
well consider imprisonment to be appropriate. Nothing in the new provision
should limit the court’s ability to make any other order it has
jurisdiction to make either under any Act, the rules
of Court or its inherent
authority or implied powers.
452 See chapter 7 at [7.59]–[7.66].
453 Blomfield v Slater, above n 364, at [48].
Reforming the law of contempt of court: A modern statute 101
CHAPTER 5: Non-compliance with court orders
5.70
5.71
Appeals against any finding that a person is in contempt under the new
provision or against the sentence imposed could be heard
under Part 6, subpart
5 (sections 260 to 269) of the Criminal Procedure Act 2011. Parliament enacted
these provisions to provide
for appeals where a court finds a person guilty of
a criminal contempt of court, whether at common law or under
statute.
We have also concluded that the remedy of sequestration
should remain because, while rarely used, it is still necessary as a
remedy of
last resort. Sequestration orders against the property of a person who has
failed to comply with a court order should continue
to be available as a remedy
in proceedings under the new provisions in the High Court.
Corporate defendants: personal liability on
directors?
5.72
Rather than having a higher level of fine for corporate defendants, the
Issues Paper suggested courts could impose liability
directly on the directors.
This was because currently when a court makes a judgment or order against a
corporate body, it can be
enforced by an order of committal for contempt against
the directors or other officers of the corporate body.454 We
recommend the new provisions reflect this approach, and where a company
or incorporated society has failed to comply with
an applicable court order,
the relevant court may make an order finding its directors or officers in
breach and sentence
them under the provision. As noted earlier,
sequestration orders can also be used in cases where a corporate body has
disobeyed
an order.455
Greater consistency between penalties when enforcing suppression
orders
5.73
5.74
Finally, our recommended reforms will improve consistency between
breaches of suppression orders that are offences under the
Criminal
Procedure Act and suppression orders made under inherent authority or implied
powers. As discussed earlier in [5.40]
to [5.41], the current position
is that suppression orders in criminal proceedings are enforced by a mixture
of offence provisions456 and the law of contempt, and in civil
proceedings suppression orders are enforced by the law of contempt. The
maximum penalty
for a breach of an order made under the Criminal
Procedure Act is six months’ imprisonment, while the maximum sentence
for
a breach of a suppression order made in the High Court under inherent
powers is up to two years’ imprisonment.457
Our
recommendations will bring these maximum penalties into line. The new
statutory enforcement provisions we have recommended
will replace the common
law of contempt and will be available to enforce suppression orders.
RECOMMENDATIONS
R32
R33
R34
New statutory provisions should be enacted to replace the common
law in respect of contempt involving a breach of or
failure to comply with an
applicable court order.
Under the new provisions, a person who has
obtained an applicable court order may apply to the court for an order that the
other
party has failed to comply with the order.
Under the new provisions, the Solicitor-General should have discretion to
apply to the courts for an order that a person has failed
to comply with an
applicable court order.
454 Laws of New Zealand Contempt of Court (online ed) at [54]. See: Grant (as liquidators of Ranolf Company Ltd (in liq)) v Bhana [2016] NZHC
2755; Zhang v King David Investments Ltd (in liq), above n 398.
455 Eady and Smith, above n 376, at [14-129].
456 It is an offence under section 211 of the Criminal Procedure Act 2011 for anyone to publish information in breach of a suppression order made under that Act. Where a person intentionally or recklessly breaches a suppression order made under the Criminal Procedure Act they face a maximum penalty of up to six months’ imprisonment.
457 See [5.33]–[5.34] above.
102 Law Commission Report
R35
R36
For the purposes of the new provisions, an applicable court order
means, whether or not the order is in a judgment, a court order to do or
abstain from doing something that is not paying a sum
of money or any
undertaking given to the court where, on the faith of that undertaking, the
court has sanctioned a particular
course of action or inaction. Orders for
the recovery of land should also be excluded. The relevant court would be the
court
in which the applicable court order was made or any court to which
the proceedings have been transferred for enforcement,
or any court of appeal
hearing an appeal in respect of the proceedings.
The court may make an order finding the person has failed to comply with
an applicable court order if satisfied beyond reasonable
doubt that:
(a) (b)
(c)
the applicable court order has been made in clear and
unambiguous terms and is binding on the person;
the person has
knowledge or proper notice of the terms of the court order being
enforced; and
the person has, without reasonable excuse, intentionally failed to
comply with the applicable court order.
R37
R38
Where the person who has failed to comply with the applicable court order is a company or incorporated society the court may make an order finding any director or officer of the company or incorporated society has failed to comply with an applicable court order under R36.
On making a finding that a person has failed to comply with an applicable court order, the court may sentence the person to:
(a) (b)
a term of imprisonment not exceeding 6 months; or a fine not exceeding
$25,000.
R39
R40
R41
On making a finding that a person has failed to comply with an applicable court order, the
High Court may issue a sequestration order against the property of the
non-complying party.
The Sentencing Act 2002 should apply in respect
of any sentence imposed by the court under the new provision as if the person
had been convicted of an offence.
Appeals against any finding that a person has failed to comply with an
applicable court order under the new provision should be heard
under subpart 5
of Part 6 (sections 260 to 269) of the Criminal Procedure Act
2011.
Reforming the law of contempt of court: A modern statute 103
CHAPTER 6: Abusive allegations and false accusations against
judges and courts
Chapter 6
Abusive allegations and false accusations against judges and
courts
INTRODUCTION
6.1
6.2
6.3
This chapter deals with abusive allegations and false accusations made
against judges and courts that are published and have
a real risk of
undermining public confidence in the judiciary as an institution.458
As already noted,459 public confidence in the
independence, integrity and impartiality of the judiciary needs to be
maintained because the general
acceptance of judicial decisions, by citizens
and governments, is essential for the peace, welfare and good government of the
country.460 In this context, courts may invoke contempt of
court in the public interest to punish those whose actions constitute
false and egregious attacks on the integrity and impartiality of members
of the judiciary, thereby impugning the integrity
of the judiciary and
adversely affecting the rule of law.
It is important to emphasise at
the outset that the purpose of this contempt of court is to uphold
public confidence
in the independence, integrity and impartiality of the
judiciary as an institution, not to vindicate the judge as a person or to
protect the feelings of individual judges.461
As Laddie J said in
Re Swaptronics Ltd: “It is all too easy for a court to be impressed
by its own status”.462
It is also important to
emphasise that this contempt is not designed to prevent or deter legitimate
criticism of court decisions
or the views of judges expressed in those
decisions or in papers or speeches. The right to freedom of expression, now
affirmed
by the New Zealand Bill of Rights Act 1990 (NZBORA), extends to
criticism of judges and courts. The New Zealand Court
of Appeal has
always recognised the right of the media and the public to criticise courts
and their work. In Re Wiseman North P said:463
... we wish to make it perfectly clear that Judges and Courts are
alike open to criticism and if reasonable argument
or expostulation is
offered against any judicial act as contrary to law or the public good, no
Court could or would treat that
as contempt of Court. No wrong is committed by
any member of the public who exercises the ordinary right of criticising, in
good
faith, in private or public, public acts done in the seat of
justice.
Similarly, in Solicitor-General v Radio Avon Ltd,
Richmond P said:464
458 Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA) at 231; Gallagher v Durack [1983] HCA 2; [1983] 152 CLR 238 (HCA) at 243.
459 Above at [1.34].
460 Murray Gleeson “Public Confidence in the Judiciary” (2002) ALJ 558 at 560; James Plunkett “The role of the Attorney-General in defending the judiciary” (2010) 19(3) JJA 160 at 162.
461 Solicitor-General v Radio Avon Ltd, above n 458, at 229.
462 Re Swaptronics Ltd [1998] All ER (D) 407 (Ch) at [20] when deciding there was no need for an additional power to prohibit a party who is obdurately in contempt, by reason of his contempt, from enforcing his civil rights or from defending himself against civil claims made against him.
463 Re Wiseman [1969] NZLR 55 (CA) at 58.
464 Solicitor-General v Radio Avon Ltd, above n 458, at
230.
104 Law Commission Report
6.4
6.5
6.6
6.7
The Courts of New Zealand, as in the United Kingdom, completely
recognise the importance of freedom of speech in relation
to their work
provided that criticism is put forward fairly and honestly for a legitimate
purpose and not for the purpose of
injuring our system of
justice.
Criticism of the judiciary and its work is important in a
democratic society and can play a significant part in increasing
public
confidence in the justice system rather than undermining it. No one can
object to criticism of this nature. Modern judges
generally accept that, as
public figures responsible for upholding the rule of law and determining
criminal and civil cases,
which are often contentious and where invariably
there is an unsuccessful party, they need to be robust and resilient
in
the face of criticism. Respect, like reputation, is earned by the timeliness
and quality of their work and not conferred by
any status attached to their
office.
There is also growing recognition that many criticisms are best
ignored, especially perhaps those that are so extreme as to be simply
unbelievable. As two of the Judges of the Ontario Court of Appeal put it in
R v Kopyto, the criticisms there were “so preposterous that no
right thinking member of society would take [them] seriously.”465
Put another way, if there were any substance in criticisms of this
nature, the public would be entitled to expect steps to have
been taken to
remove the judge concerned from office. Inaction in this regard may serve to
confirm that such criticisms have not
been taken seriously by those
responsible for taking such steps.
At the same time, when criticism
becomes abusive or contains false allegations or accusations that undermine
public confidence
in the independence, integrity and impartiality of
the judiciary as an institution, action may be required. As the
Hon Paul
East, when Attorney- General, put it:466
Constitutionally, the Judges can speak only through their judgments and
cannot, by convention, publicly answer any criticism.
The Attorney-General
assumes responsibility over criminal contempts of court, whether arising in
respect of criminal or civil proceedings,
which undermine public confidence in
the administration of justice. The Judge can deal with matters of contempt
that occur in
the face of the Court, but once it occurs outside the Court then
it is a function of the Attorney-General to bring proceedings
for
contempt.
The convention that judges are not able to answer criticism
publicly distinguishes the judiciary from other arms of government
and
explains why the Attorney-General, as the senior Law Officer of the
Crown, has constitutional responsibility for
upholding the rule of law
and answering any unwarranted criticism of the judiciary.
Mr East also
pointed out that protecting freedom of speech needs to be balanced with
the independence of the judiciary
so that:467
Often a public statement by the Attorney-General is all that will be
necessary to remind the news media that unfounded attacks
on the judiciary
can undermine the stability of our Constitution which it is in all our
interests to protect.
465 R v Kopyto (1987) 62 OR (2d) 449 (ONCA); 47 DLR (4th) 213 (ONCA) at [85] per Dubin and Brooke JA. See also Ursula Cheer Burrows and
Cheer: Media Law in New Zealand (7th ed, LexisNexis, Wellington, 2015) at 561.
466 The Honourable Paul East Attorney-General “The Role of the Attorney-General” in Philip A Joseph (ed) Essays on the Constitution (Brooker’s, Wellington, 1995) 184 at 200; John McGrath QC “Principles for Sharing Law Officer Power: The Role of the New Zealand Solicitor-General” (1998) 18 NZULR 197 at 213. The position may not be the same in Australia: See James Plunkett, above n 460.
467 At 201.
Reforming the law of contempt of court: A modern statute 105
CHAPTER 6: Abusive allegations and false accusations against
judges and courts
6.8
6.9
6.10
6.11
6.12
6.13
This approach is reflected in the Cabinet Manual, which currently
states that the Attorney- General:468
... has an important role in defending the judiciary by answering improper
and unfair public criticism, and discouraging ministerial
colleagues from
criticising judges and their decisions.
As Mr East’s statements and
the Cabinet Manual recognise, a public statement by the Attorney- General
answering an unwarranted
criticism of the judiciary may be sufficient to
produce a retraction or apology, thereby avoiding any need for proceedings
for contempt.
Another alternative to contempt proceedings may be a
formal written request by the Solicitor- General, as the junior Law Officer
of the Crown, for a withdrawal of the unwarranted criticism and an apology to
the particular judge involved. This alternative proved
particularly effective
in 1984 when the Solicitor-General on his own initiative wrote to the National
Secretary of the New Zealand
Police Association seeking and obtaining an
apology for remarks attributed to him by the Sunday News, which included
a statement impugning the impartiality of a Judge.
In another example,
in 2003, a website listed 14 judges and claimed to be investigating them. The
website accused them of “corruption,
incompetence and suspect
character” and stated that evidence would be progressively published
on the website to prove
it. After the Solicitor- General sent a letter, the
offending material was removed from the
website.469
Responsibility for upholding the rule of law,
including defending the independence, integrity and impartiality of the
judiciary,
does not rest solely with the Law Officers of the Crown. Under the
Lawyers and Conveyancers Act 2006 all lawyers and the New Zealand Law Society
(NZLS) are obliged to uphold the rule of law.470 Similar
responsibilities are reflected in the Rules of the Auckland District Law
Society Incorporated and the New Zealand Bar Association.
The NZLS will,
in appropriate cases, make public statements answering attacks on members of
the judiciary. Recent examples have
included:
. a response
from the President of the NZLS to criticism of a High Court Judge’s
decision not
to impose a sentence of preventive detention on an offender who
subsequently committed murder;471
. a similar
response to criticism of the sentencing of a young man who received a
discharge
without conviction for assault;472
.
comments regarding the need for criticism of court decisions
to be measured and made in
appropriate forums following extensive coverage of the extrajudicial
comments of a retired judge on a high-profile case;473
and
. a video published by the NZLS in which a
leading criminal barrister explains how the
sentencing process works.474
468 Cabinet Office Cabinet Manual 2008 at [4.8].
469 This incident is discussed in Cheer, above n 465, at 558.
470 Lawyers and Conveyancers Act 2006, ss 4(a) and 65(b).
471 New Zealand Law Society “Criticism of Judge unfair” (27 August 2015) <www.lawsociety.org.nz>.
472 New Zealand Law Society “Sentence criticism ill-informed” (15 September 2016) <www.lawsociety.org.nz>.
473 New Zealand Law Society “Discussion of judgments should be in appropriate forums, says Law Society” (8 November 2013)
474 New Zealand Law Society “Law Society provides guidance on
sentencing considerations” (6 October 2016) <www.lawsociety.org.nz>.
106 Law Commission Report
6.14
6.15
6.16
6.17
6.18
6.19
An example from the independent bar is found in the response by
Robert Lithgow QC and retired Judge Dr David Harvey,
among others, to
criticism of the discharge without conviction of a young sports player guilty
of assault.475
When the criticism of a judge is made by a
lawyer, the NZLS may also invoke disciplinary procedures. In a recent case
the
New Zealand Lawyers and Conveyancers Disciplinary Tribunal found
allegations by a lawyer of racism and corruption against two
High Court
Judges to be “baseless”,476 “without cause”
and supported by “not one shred of evidence”,477
and imposed a sentence of 15 months’ suspension of practice,
together with costs of over $250,000.478 The Tribunal’s
decision, delivered some seven years after the allegations were first
made, led to belated apologies
by the lawyer concerned to both of the
Judges.
The result in that case was perhaps not surprising as the
lawyer had made the allegations in complaints against the Judges
to the
independent Judicial Conduct Commissioner who had investigated and rejected
them prior to the Tribunal’s decision.479 It is reasonable
to assume, if there had been any truth in the allegations, steps would have
been taken to remove the Judges
from office long before the Tribunal’s
decision in 2016. Instead the Judges remained in office with the unfounded
allegations
hanging over them. A more efficient and effective method for
dealing with allegations of this nature is needed.
Under the
Constitution Act 1986 and the Senior Courts Act 2016 High Court Judges may not
be removed from office except by the Sovereign
or Governor-General acting upon
an address of the House of Representatives.480 That address
“may be moved only on the grounds of that Judge’s misbehaviour or
of that Judge’s incapacity to
discharge the functions of that
Judge’s office.”481
Judges of the Senior Courts
therefore have security of tenure until they reach the age of 70, when
they must retire.482 District Court Judges must also retire at
the age of 70, and may be removed from office by the Governor-General on
the advice
of the Attorney-General on the grounds of “inability or
misbehaviour”.483
Members of the public who are
concerned about the conduct of a judge may complain to the Judicial Conduct
Commissioner under
the Judicial Conduct Commissioner and Judicial Conduct Panel
Act 2004, which was enacted to “enhance public confidence
in, and
to protect the impartiality and integrity of, the judicial
system”.484 As the High Court recognised in Muir v
Judicial Conduct Commissioner, the Act confirmed New Zealand’s
commitment to the United
Nations’ Basic Principles on the
Independence of the Judiciary.485
475 Stuff “Leading defence lawyers defend Losi Filipo’s discharge without conviction” (29 September 2016) <www.stuff.co.nz>; Vaimoana
Tapaleao and Lynley Bilby “Losi Filipo case: How the judges judge” The New Zealand Herald (online ed, Auckland, 29 September 2016)
476 National Standards Committee No 1 v Deliu [2016] NZLCDT 26 [Judges charges] at [215].
477 At [185].
478 National Standards Committee No 1 v Deliu [2016] NZLCDT 41 [Penalty decision]. This penalty decision reflected nine charges proved against Mr Deliu across three decisions: National Standards Committee No 1 v Deliu [2016] NZLCDT 25 [Interruption of meeting charge], National Standards Committee No 1 v Deliu [2016] NZLCDT 26 [Judges charges], and National Standards Committee No 1 v Deliu [2016] NZLCDT
27 [Incompetence charges]. Of these nine charges, six related to the allegations of racism made by Mr Deliu. Mr Deliu has filed an appeal: “Auckland barrister suspended” LawTalk 904 (New Zealand, March 2017) at 41.
479 Complaints were made about one judge in 2008 and 2009 and about the other judge in 2010, all of which were dismissed: National Standards
Committee No 1 v Deliu [2016] NZLCDT 26 [Judges charges] at [10], [184] and [209].
480 Constitution Act 1986, s 23; Senior Courts Act 2016, s 134.
481 Constitution Act 1986, s 23.
482 Senior Courts Act 2016, s 133.
483 District Court Act 2016, ss 28-29.
484 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 4; Wilson v Attorney-General [2010] NZHC 1678; [2011] 1 NZLR 399 (HC) at [25]–[52].
485 Muir v Judicial Conduct Commissioner [2013] NZHC 989 at
[41].
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CHAPTER 6: Abusive allegations and false accusations against
judges and courts
6.20
6.21
6.22
6.23
6.24
Under the Act the Judicial Conduct Commissioner has statutory
responsibility for examining complaints in private and, in appropriate
cases,
recommending the appointment of a Judicial Conduct Panel to investigate
allegations of judicial misconduct.486 The Panel then has
statutory responsibility for investigating, hearing in public and reporting
on complaints.487 Subject to a right of appeal to the Court of
Appeal,488 an adverse report by the Panel against a judge may lead
to action by the Attorney-General489 and, ultimately, the House of
Representatives may remove the Judge from office under section 23 of the
Constitution Act 1986. Decisions
of the Judicial Conduct Commissioner are also
open to challenge by judicial review.490
While the Law
Officers of the Crown and the NZLS have responsibility for defending the
independence, integrity and impartiality
of the judiciary by answering
unwarranted criticism of judges and while there is a formal statutory regime
in place for dealing
with complaints by members of the public against judges,
the question is whether there is any need to retain in any form the common
law
contempt of scandalising the court.
The Solicitor-General has not
brought a case alleging scandalising the court since 2004 when Dr Nick Smith
MP, was found by
a Full Court of the High Court to have been guilty of
this contempt when making statements designed to lessen public acceptance
of a Family Court custody decision.491
The absence of any
cases since Smith does not mean, however, there have been no
abusive allegations or false accusations against the judiciary over the last
13 years that have tended to undermine public confidence in the independence,
integrity and impartiality of the judiciary. Recent
examples include:
.
websites with false and egregious criticisms of several
judges;492
. picketing by the Union of
Fathers outside two Family Court Judges’ homes in Hamilton and
Auckland in 2006;493
.
demonstrations outside the private homes of senior judges,
upsetting their neighbours and
families;
. website blogs and social media
entries making derogatory statements against a Family Court
Judge and her family and disclosing personal information about them
(including photographs of her children and the name and address
of their
school); and
. unfounded accusations by a lawyer of racism
and corruption against two High Court Judges
in complaints to the Judicial Conduct Commissioner.494
None
of the criticisms or allegations in the above examples was true. All of the
targeted judges remained in office. Yet in none
of these cases did the Law
Officers of the Crown or the Police
486 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, ss 15 and 18.
487 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 24.
488 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 31.
489 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, ss 32 and 33.
490 Wilson v Attorney-General, above n 484, at [50]; Siemer v Judicial Conduct Commissioner [2013] NZHC 1655 and [2014] NZHC 2878; Muir v
Judicial Conduct Commissioner, above n 485.
491 Solicitor-General v Smith [2004] 2 NZLR 540 at [86]–[94]. Discussed above at [2.41]–[2.43].
492 See [6.11] above. More recently, a New Zealand businessman used a website to advance his case and allege bias and corruption by a judge. The Court of Appeal rebuked his allegations in Siemer v Ferrier Hodgson [2007] NZCA 581, [2008] 3 NZLR 22 at [31]. See also Cheer, above n 465, at 558.
493 Derek Chang “Fathers’ vendetta angers top judge” The New Zealand Herald (online ed, New Zealand, 9 May 2006).
494 National Standards Committee No 1 v Deliu [Judges charges],
above n 478. See [6.15]–[6.16] above.
108 Law Commission Report
6.25
6.26
take any steps to answer or respond to the allegations.495 The
reasons for taking no steps include uncertainty over the scope and
effectiveness of the law in this area and concerns about
drawing further
attention to the allegations.
The lawyer who made the unfounded
allegations of racism and corruption faced professional disciplinary
proceedings, but due to
numerous interlocutory applications and other delays
the proceedings took some seven years to be heard and
determined.496
There is, therefore, a serious question
whether the law of scandalising the court is currently workable in
practice. If the
law is to be retained, there are further questions as to the
nature and gravity of the conduct covered by the offence, and where
the line
should be drawn between freedom of expression and conduct interfering with
the administration of justice. If the law
is retained, what is its appropriate
form?
HISTORICAL BACKGROUND
6.27
6.28
6.29
The common law contempt of court, known by the antiquated description
“scandalising the court”, covers “scurrilous
abuse” of
a judge or attacks on the integrity or impartiality of a judge or
court.497
Some of the early scurrilous abuse cases in this
category make quaint reading today:
. A newspaper article
describing a judge as “an impudent little man in horse hair”
and “a
microcosm of conceit and empty
headedness”.498
. Placards outside
the Royal Courts of Justice alleging a judge had “defrauded the course
of
justice”.499
. Letters to a
judge accusing him of being “a liar, a coward, a
perjurer”.500
. A newspaper article
describing a judge as “the bewigged puppet and former Tory Member
of
Parliament chosen to put Communist leaders
away”.501
During the twentieth century, this contempt
fell into disuse in England largely because courts preferred to ignore attacks
on
themselves or leave them to be pursued by individual judges through civil
remedies, such as damages for defamation.502 Indeed, for many
years, scandalising the court was considered “virtually
obsolescent” in England.503 In 1974, the Phillimore
Committee recommended that scandalising the court should cease to be
part of the law of contempt,
but it should be an offence to defame a
judge in such a way as to bring the
495 Principal Family Court Judge Peter Boshier defended the Family Court in respect of the 2006 picket at the homes of judges. He said that the picketing went beyond acceptable democratic protest and “[i]t has all the hallmarks of personal vendetta by individuals who do not respect the legitimacy of the court.”; see Derek Chang “Fathers’ vendetta angers top judge” The New Zealand Herald (online ed, New Zealand, 9 May 2006).
496 National Standards Committee No 1 v Deliu [Incompetence charges], above n 478, at [29]. The Tribunal said “the primary contributing reasons for delay were the multiple challenges to the process taken by the practitioner and their, some-times slow progression, and his opposition to the Committee’s application to access evidence from the Court files”. A range of interlocutory and judicial review proceedings, as well as appeals, were filed in relation to both preliminary and substantive decisions. The Court of Appeal in one decision recorded that his objective was to prevent the Tribunal ever hearing the disciplinary charges: Deliu v New Zealand Law Society [2015] NZCA 12, [2016] NZAR 1062 at [19] and [32]. See also National Standards Committee No 1 v Deliu [Penalty decision], above n 478.
497 David Eady and ATH Smith Arlidge, Eady and Smith on Contempt (4th ed, Sweet & Maxwell, London, 2011) at [5-204], Laws of New Zealand
Contempt of Court (online ed) at [30]; Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990) at 366.
498 R v Gray [1900] UKLawRpKQB 63; [1900] 2 QB 36; see Maxton, above n 497, at 368, for full story.
499 R v Vidal, The Times October 14, 1922; see Maxton, above n 497, at 369, for full story.
500 R v Freeman, The Times, November 18, 1925.
501 R v Wilkinson, The Times, July 16, 1930.
502 Eady and Smith, above n 497, at [5-207]–[5-208].
503 McLeod v St Aubyn [1899] UKLawRpAC 33; [1899] AC 549 (PC) at 561 per Lord Morris; Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 (HC) at
347A per Lord Diplock.
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6.30
6.31
6.32
6.33
administration of justice into disrepute.504 While
recommendations for its replacement by statutory provisions were not
initially implemented,505 scandalising the court was
finally abolished in 2013.506
This brought the position in
England into line with the United States and Canada where scandalising
the court has been
held to breach rights of freedom of speech and
expression.507
In New Zealand, however, the Court of
Appeal in the 1978 Radio Avon case rejected a submission that
contempt proceedings for scandalising the court had become
obsolete.508 The Court emphasised the need for caution, but did
not accept that the jurisdiction was one that should no longer be
exercised
under any circumstances. The position in Australia is similar.
Despite the Australian Law Reform Commission recommending
in 1987 that
scandalising the court be abolished,509 it remains part of the
common law in Australia.510
The enactment of NZBORA in 1990
has not undermined this contempt. In Solicitor-General v Smith a Full
Court of the High Court considered the contempt of scandalising the court
survived the enactment of NZBORA because it was
a reasonable limit on
freedom of expression that could demonstrably be justified in the free and
democratic society that exists
in New Zealand today.511 Wild and
MacKenzie JJ said:512
We do not accept that the offence of scandalising the Court cannot
be justified as a reasonable limitation upon freedom
of expression... The
rights guaranteed by the [NZ]BORA depend upon the rule of law, the upholding
of which is the function
of Courts. Courts can only effectively discharge
that function if they command the authority and respect of the public. A
limit upon conduct which undermines that authority and respect is thus not
only commensurate with the rights and freedoms contained
in the [NZ]BORA, but is
ultimately necessary to ensure that they are upheld.
The High
Court’s view that a common law contempt of court may constitute a
justifiable limit on the right to freedom of
expression prescribed by law is
consistent with the approach of the Supreme Court in the two Siemer
cases.513
ISSUES WITH COMMON LAW
Summary process
6.34
Like all common law contempt, scandalising the court is punishable in New
Zealand by way of summary process for committal.514
Responsibility for initiating the process rests with the judge
concerned (but only where the offending conduct occurs during
proceedings
before one of the higher courts) or with the Solicitor-General, who commences
the proceeding by way of
504 Lord Phillimore Report of the Committee on Contempt of Court (House of Commons, Cmnd 5794, December 1974) at 94.
505 Eady and Smith, above n 497, at [5-210]–[5-215].
506 Crime and Courts Act 2013 (UK), s 33.
507 Bridges v California [1941] USSC 148; 314 US 252 (1941) at 287; R v Kopyto, above n 465.
508 Solicitor-General v Radio Avon Ltd, above n 458, at 237–238.
509 Australian Law Reform Commission Contempt (ALRC Report 35, 1987). Initially, in response to the Australian Law Reform Commission, a Government position paper was prepared and circulated, outlining the federal government's position on the Commission's recommendations in 1992. Although four jurisdictions initially agreed to work together for the purpose of agreeing on uniform contempt legislation, state and territory interest in the project lapsed and the project is no longer being actively pursued; ALRC, “Contempt” (12 July 2010)
510 Gallagher v Durack, above n 458.
511 Solicitor-General v Smith, above n 491, at [133] and [136]. We discuss this case in some detail at [2.41]–[2.43].
512 At [133].
513 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [24]–[25]; Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at
[229]. See also discussion at [1.75], [2.36] and [5.30].
514 Solicitor-General v Radio Avon Ltd, above n 458, at
235.
110 Law Commission Report
originating application in accordance with the High Court Rules.515
The District Courts and other courts or tribunals that source their
jurisdiction from statute do not have jurisdiction in respect
of this contempt.
Instead, the High Court’s inherent jurisdiction extends to upholding the
authority of the lower courts
and tribunals.516
Proof of intention
6.35
A successful case does not require proof of an intention to lower the
authority of the judge or court.517 The Court of Appeal has
said there must be a real risk, as opposed to a remote possibility, that
the criticism involved
would undermine public confidence in the administration
of justice.518 This is the same real risk test we outlined and
discussed in detail in chapter 2.519
Defence of truth
6.36
6.37
It is unclear whether defences of fair comment, truth or
justification (public benefit) are available.520 In
Attorney-General v Blomfield, the majority of the Full Court of the
then Supreme Court considered that the summary procedure in a contempt case was
not suitable
for inquiries of this nature.521 It is arguable that
to allow truth as a defence would open up the possibility of the conduct of
judges (both past and present)
being subject to investigation and judgment. On
the other hand, how could truth not be a defence?
In the United Kingdom,
the Phillimore Committee,522 which in 1974 reviewed and made
recommendations relating to contempt, suggested that truth could be a
defence if there was an
additional element of public benefit.523
Professor ATH Smith has noted, however, there is likewise authority
to suggest that fair criticism of judges that is true
itself has a public
benefit, implying that there is no additional element of public benefit
required.524
OTHER REMEDIES
6.38
6.39
When considering the future of the contempt of scandalising the court, it
is important to take into account other remedies
that are available for
the Police to prosecute, and for judges to pursue, in the same way as
anyone else. These other
remedies include a range of criminal offences and
civil actions. It is also relevant to note in this context the existence
of
the Ministry of Justice National Security Operations Section which has
responsibility for judicial security. Judges are
able to refer all types of
attack, including online abuse, to the Section for investigation and, if
necessary, further action.
Serious attacks or threats of attacks
against judges may constitute criminal offences under the
Crimes Act 1961:
. threatening to kill or do grievous
bodily harm: section 306;
. threatening to destroy
property: section 307;
515 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR19.3.01].
516 Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at 616.
517 Solicitor-General v Radio Avon Ltd, above n 458, at 232.
518 At 229 and 232–233.
519 At [2.69]–[2.72].
520 Eady and Smith, above n 497 at [5-204]; Attorney-General v Blomfield [1913] NZGazLawRp 241; (1913) 33 NZLR 545 (SC); and Solicitor-General v Radio Avon, above n 458, at 231.
521 Attorney-General v Blomfield, above n 520, per Stout CJ at 559, Williams J at 563, and Denniston J at 570. See also Solicitor-General v Radio
Avon Ltd, above n 458, at 231.
522 Phillimore, above n 504.
523 This approach was taken by the High Court in Australia in Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 39.
524 ATH Smith Reforming the New Zealand Law of Contempt: An
Issues/Discussion Paper (Crown Law Office, April 2011) at
[3.52]‒[3.56].
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. threats of harm to people or property: section 307A; and
. threatening acts: section 308.
6.40
6.41
6.42
Less serious conduct may constitute criminal offences under the following
legislation:
. section 4 of the Summary Offences Act 1981
(offensive behaviour);
. section 8 of the Harassment
Act 1997 (criminal harassment);
. sections 21 and 22
of the Postal Services Act 1998 (posting noxious substances,
noxious
things or indecent articles);
. section 112 of
the Telecommunications Act 2001 (misuse of telephone device);
and
. sections 21 and 22 of the Harmful Digital
Communications Act 2015 (failing to comply with
a take down order and posting a digital communication with intention to cause
harm).
Civil remedies available to judges who are the subject of
attacks, threats, abusive allegations or false accusations include:
.
civil claims for defamation;
. actions for
trespass;
. actions for harassment under the
Harassment Act (civil harassment); and
. complaints
under the Harmful Digital Communications Act.
The Harmful Digital
Communications Act was enacted following the Law Commission’s review of
“Regulatory Gaps and the New
Media”.525 The purpose of
the Act is to:526
(a) (b)
deter, prevent, and mitigate harm caused to individuals by digital
communications; and
provide victims of harmful digital
communications with a quick and efficient means of
redress.
6.43
Under the Act digital communication is defined as “any form
of electronic communication [including] any text message,
writing,
photograph, picture, recording, or other matter that is communicated
electronically”.527
The Act creates a new civil
enforcement regime that enables specified persons to make initial
complaints528 about harmful digital communications to the Approved
Agency.529 The Approved Agency may then investigate the complaint
and attempt to resolve it using advice, negotiation, mediation and persuasion
as appropriate.530 A specified person may apply to the District
Court for a number of civil orders, but only once a complaint has been made and
the
Approved Agency has had a reasonable opportunity to assess it and
determine a course of action.531 Where a
525 Law Commission Harmful Digital Communications: The adequacy of the current sanctions and remedies (NZLC MB3, 2012); Law Commission The News Media Meets ‘New Media’: Rights and Responsibilities in the Digital Age (NZLC R128, 2013). See also New Zealand Law Society “IT & Online Law Conference” May 2015, New Zealand Law Society Webinar “Cyber Bullying” September 2015, New Zealand Law Society “Cyber Law Conference” (May 2016), New Zealand Law Society Seminar “Media Law” (February 2017).
526 Harmful Digital Communications Act 2015, s 3.
527 Harmful Digital Communications Act 2015, s 4.
528 Harmful Digital Communications Act 2015, s 11.
529 Section 7 of the new Act came into force on 20 May 2016: Harmful Digital Communications Act Commencement Order 2016. Netsafe was appointed as the Approved Agency in November 2016. It has already received over 600 requests for assistance: Hon Amy Adams, Minister of Justice “Cyberbullying law holding offenders to account” (press release, 5 April 2017).
530 Harmful Digital Communications Act 2015, s 8(1)(c). The use of “as appropriate” in this section suggests that the Agency has discretion to use all, some or none of the listed techniques, depending on the circumstances. This is consistent with the advice of the Approved Agency, Netsafe, which says that the Agency will never contact the person harassing the complainant without first obtaining the complainant’s consent: Netsafe “Get Help With Online Bullying, Abuse and Harassment” (22 February 2017) <www.netsafe.org.nz/hdc>.
531 Harmful Digital Communications Act 2015, s 12(1).
112 Law Commission Report
6.44
communication constitutes a threat to the safety of an individual, the
Police may apply directly to the court without having to
first make a
complaint to the Approved Agency. These orders may include those requiring
harmful digital communications to be
taken down and requiring the defendant to
cease the harmful conduct.532 It is also a criminal offence under
the new Act for a person to post a digital communication with the intention
that it causes
harm533 or to fail to comply with an order made
under the Act.534
In the Act’s first year, there have
been 132 charges filed and 50 convictions.535 It appears many of
the prosecutions have related to harmful communications after the breakdown of
intimate relationships.536
POSITION TODAY
6.45
6.46
6.47
6.48
There are still many ways today in which members of the New Zealand
judiciary may face unwarranted attacks, threats, abusive
allegations and
false accusations or personal ridicule or threats that compromise or may
compromise their ability to
adjudicate without “fear or
favour”.537
In addition to statements published in the
traditional media, unwarranted attacks include, as we have already noted,
statements
on websites, blogs or social media platforms such as Facebook and
Twitter, and demonstrations outside judges’ private homes.
While
attacks and threats constituting criminal offences should be left to the Police
to prosecute in the normal way, the advent
of digital media has highlighted the
need for the retention of some form of action for contempt of court in respect
of published
allegations and accusations which are false but appear credible
and carry with them a real risk of undermining public confidence
in the
judiciary as an institution. With the internet being a permanent repository of
information and with the potential for posts
to go viral, we can no longer
dismiss attacks on judges on the ground that today’s newspaper is
tomorrow’s fire lighter.538
As already noted above at
[6.11], in 2003 a website appeared on the internet which listed 14 judges who
it said it was investigating,
accusing them of “corruption, incompetence
and suspect character” and that evidence would be progressively
published
on the website to prove it.539
A letter from the
Solicitor-General followed, and the material was removed from the website.
Also in recent years, Mr Siemer,
who was involved in protracted
litigation against another businessman and against some higher court
judges, has made statements
in court documents filed in those proceedings, and
also on his Kiwis First website that are similar. In one set of proceedings
he stated that: “Many of [the judge’s] actions are sufficient
to cause an impartial observer to wonder whether
he is paid counsel for the
respondents rather than an impartial arbiter”.540 Although
these comments drew a firm rebuke from the Court of Appeal,541
such attacks and possible scandalising comments have otherwise been
publicly ignored.
532 Harmful Digital Communications Act 2015, ss 11, 12 and 19.
533 Harmful Digital Communications Act 2015, s 22.
534 Harmful Digital Communications Act 2015, s 21.
535 Hon Amy Adams, Minister of Justice, above n 529.
536 Judge David Harvey “Prosecutions under the HDC Act” (2016) 29 Law News 8. See also R v Iyer [2016] NZDC 23957, reversed on appeal:
New Zealand Police v B [2017] NZHC 526.
537 Oath and Declarations Act 1957, s 18. See also above at [3.42].
538 Eady and Smith, above n 497, at [5-207].
539 Cheer, above n 465, at 558.
540 Siemer v Ferrier Hodgson, above n 492, at [32].
541 At [31].
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6.50
6.51
6.52
For various reasons none of the other available remedies has proved adequate
to deal with these actions. The demonstrators outside
the judges’
homes have not been prosecuted.542 Solicitors- General have
also been reluctant in recent years to bring contempt proceedings.
Matters touching on this
ground of contempt are referred to Crown Law
regularly, but few result in action. The threshold for contempt is very
high
and the credibility of the attack is central to whether a contempt
action on this ground could ever be successful. If
extreme and
vitriolic language is used, people are less likely to regard it as credible,
making it difficult to demonstrate a real
risk to the administration of
justice.
As noted above at [6.3], a balanced approach is also required
because of the right to freedom of expression. Fair and honest
criticism of
judgments and courts is legitimate and needed in a democratic
society.543
The recent press activity in England following the
first judicial decision that Brexit could not be triggered without a vote by
Parliament
illustrates how the balance has shifted towards freedom of
expression following the abolition of the contempt of scandalising.
As a result
of this judicial decision, three newspapers published photos of the three
judges involved, with headings such
as “enemies of the people”
and “the judges versus the people” and, within the articles, making
allegations
that the judiciary was biased: “infested with
Europhiles”, as well as making attacks on each of the judges on a personal
level. There were calls for the Lord Chancellor to defend the judges. The
Lord Chancellor, however, in essence made it clear
that while the rule of law
is important so too is freedom of the press and she was not prepared to
criticise the newspapers because
they had not broken the law. This did not
quiet criticism however, and Sir Geoffrey Palmer QC subsequently
wrote:544
It took an embarrassingly long time for the Lord Chancellor to issue a
statement defending the Judges and upholding the basic constitutional
principle
of English law, the independence of the judiciary.
In 2013, as we have
noted earlier, England abolished the common law contempt of scandalising so,
while some of the coverage was quite
distasteful and misleading, there could be
no suggestion that the newspapers were breaking the law in this respect.
ISSUES PAPER
6.53
In our Issues Paper we identified the following issues requiring
resolution:
(a)
(b) (c)
(d)
(e)
Whether the common law contempt of scandalising the court should be
abolished in New Zealand because it was now virtually
obsolete here, no
cases having been brought since Solicitor-General v
Smith.
Whether the anachronistic term “scandalising” was
unsatisfactory.
Whether the uncertain scope of this form of contempt,
particularly the guilty intention requirement and whether truth or
justification
was a defence, called for reform.
Whether the use of a
summary procedure when there was no need to protect a particular trial was
appropriate.
Where to draw the line, if at all, between legitimate
criticism of the judicial system and criticism that undermined confidence
in the administration of justice.
542 Possibly because of the decisions in Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 and Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.
543 Solicitor-General v Radio Avon Ltd, above n 458, at 231; Gallagher v Durack, above n 458, at 243. See also [6.3]–[6.4]; and Cheer, above n 465, at [16.1].
544 Geoffrey Palmer “Do the British understand their own unwritten
Constitution?” [2017] NZLJ 27 at 27.
114 Law Commission Report
6.54
We outlined one main proposal and two consequential options. The
main proposal was to abolish the common law contempt
of scandalising the
court. The two consequential options then were to:
(a) (b)
rely on other existing avenues and sanctions for remedies in
situations where judges or courts were unfairly subject to
vitriolic
criticism (such as existing statutory offences and civil defamation);
or
replace the common law contempt of scandalising with a new
statutory offence. For example, an offence of publication
of material
imputing improper or corrupt judicial conduct, which, having regard to
the nature of the published statement,
the status of the person making the
statement and the likely audience, created a real risk of impairing
confidence in
the administration of justice.
6.55
6.56
6.57
The Commission expressed preliminary support in the Issues Paper for
the first option.
In proposing as the second option the replacement of
the common law contempt of scandalising with a new statutory offence of some
kind, the Issues Paper suggested there could be a defence to such an offence
if the allegations were true or publication was
for the public benefit.
The law would also need an exception to allow allegations of judicial
misconduct to be made to the Judicial
Conduct Commissioner.
The
Commission suggested the defence of truth or public interest might ensure
the offence was compliant with NZBORA. One
problem with enacting an offence
with a defence of truth and public interest would be that it would
effectively put the
judge on trial and subject the judge’s conduct
to scrutiny outside the statutory process for dealing with complaints
against
the judiciary.
SUBMISSIONS ON THE ISSUES PAPER
6.58
6.59
6.60
APN News and Media Ltd,545 the Police and the Auckland
District Law Society Incorporated all supported the introduction of a new
statutory offence along
the lines set out in the Issues Paper. They considered
that while the offence was not used often, the objective of the contempt of
scandalising was important and remained valid.
Although most other
submitters considered scandalising obsolete for the reasons we set out in the
Issues Paper, others we consulted
suggested the contempt of scandalising
offered something of a symbolic standard for the law. While there were
likely to be
few (if any) prosecutions, it was beneficial to have a clear
statement of what was not acceptable in terms of attacks on
the courts and
judiciary. Some submitters considered there was scope to consider a statutory
offence relating to the administration
of justice, or bringing the
judiciary and courts into disrepute. Some suggested reliance on
defamation as a remedy was
problematic, and it was appropriate to have a
standard set out in law.
Submitters who were in favour of abolition
included TVNZ which considered defamation laws and the framework under the
Harmful Digital
Communications Act would be sufficient. The NZLS also
supported abolition and considered “to the extent that criticism
or
threatening behaviour is not captured by existing criminal offences, civil
defamation or the Harassment Act, it may be accepted
as a normal incident of
a society that respects free speech and liberty
545 APN publishes almost 20 daily newspapers (including the New
Zealand Herald) and more than 80 non-daily newspapers in New Zealand. It
has over 50 websites, mobile sites and apps across Australia and New
Zealand,
and owns three national radio networks: NewsTalk ZB, The Hits and
Coast as well as four other major networks.
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6.61
6.62
of opinion”. Some of the judges we consulted also considered that,
even where scandalising penalised only the worst conduct,
it had no place in
our society any more.
Crown Law did not offer opinions on the policy
options outlined in our Issues Paper. It did note, however, that if a
catch-all
offence was recommended, this might provide an ideal opportunity to
abandon scandalising. If there were to be an offence relating
to scandalous
conduct, Crown Law raised the issue whether any person charged would have the
right to bring evidence placing judges
in the position of being called as a
witness and challenged accordingly.
During consultation Crown Law
advised that a key factor when it was exercising its
prosecutorial discretion was
considering how the public would view the
action. Ultimately, contempt was concerned with public confidence in
the administration of justice and, accordingly, sometimes contempt
actions would not advance this goal. An example
of this would be when
the public would likely view a prosecution as heavy handed. Crown Law
noted that where the
material or conduct in question was extreme the
public tended to view it with scepticism. In other words, it was not
considered
credible so it did not undermine public confidence.
Harmful Digital Communications Act 2015
6.63
6.64
Some submitters did not consider the Harmful Digital Communications
Bill (as it was at the time) and other existing
remedies could cover
the space occupied by the contempt of scandalising. Crown Law submitted
it did not consider the
Bill provided a suitable mechanism to deal with
complaints about judicial harassment. It also did not support the
suggestion
that Crown Solicitors, in the name of the Solicitor-General,
could make complaints under the legislation on behalf of
individual judges.
The Police noted the Bill was limited to digital communication; it would
not cover attacks on the court
that were not digital, and it did not
address the risk to public confidence in the administration of
justice.
The comments made on behalf of District Court judges
were critical of resolving problems through the Bill’s process
because the regime under the Bill required people to follow a mediation
resolution process through the Approved Agency
before seeking a court
order.546 Such a process might not be suitable where the harassing
party had a personal vendetta against the judge and the court system.
Putting the judge and this party face to face might simply be an
opportunity for further abuse.
OUR ASSESSMENT
6.65
After careful consideration of all these submissions, we have reached
the following principal conclusions:
(a)
(b) (c)
It remains in the public interest to have an offence which is
designed to deter and, if necessary, punish persons
responsible for
publishing allegations and accusations against judges and courts which appear
credible but are not in fact true
and which carry with them a real risk of
undermining public confidence in the judiciary as an institution.
The
offence should be a statutory one and replace the common law offence of
scandalising the court, which should be abolished.
The Solicitor-General
should be responsible for investigating and bringing prosecutions for the new
offence.
546 Harmful Digital Communications Act 2015, s 12. As noted above at n
529, Netsafe has been appointed as the Approved Agency
under the Act.
116 Law Commission Report
(d)
(e)
The Solicitor-General should prosecute the new offence in the High
Court following the filing of charges under the Criminal
Procedure
Act.
The High Court should also have power to make orders, both
interim and final, for the retraction or take down of the allegation
or
accusation.
Reasons for our conclusions
6.66
Our reasons for concluding there should still be an offence are:
(a)
(b) (c)
It is in the public interest we maintain confidence in the
independence, integrity and impartiality of the justice system.
False
allegations, which are published without justification and which carry
a real risk of undermining public confidence
in the judiciary as an
institution, should not go unanswered. Maintaining public confidence in the
judiciary as an institution is
essential for upholding the rule of law in New
Zealand.
As we have noted, since the Smith case in 2004 there have
in fact been several serious false allegations made against judges which have
gone unanswered.547
The general remedies (defamation,
trespass, harassment, and harmful digital communications) do not address
the public interest
in maintaining confidence in the judiciary as an
institution. Instead, they focus on the interests of the individual judge.
They
also require the judge to initiate proceedings, which almost inevitably
involves further personal publicity, time
and cost for the judge.
6.67
Our reasons for concluding there should be a new statutory offence
replacing the common law offence of scandalising the court
are:
(a) (b)
(c)
(d)
The common law contempt of scandalising is outdated. Its antiquated
language is no longer appropriate in a modern world. We
need to
address its summary process and the uncertainties surrounding proof of
intention and the availability of defences.
The new offence would
define the proscribed conduct with precision, settle the issue of
whether there should be a defence
of truth, and prescribe appropriate penalties.
It would be clear that it does not prevent legitimate criticism of
judgments
and courts by anyone exercising their rights to freedom of
expression.
Although the statutory offence would be a new one, it would
replace and clarify an existing common law offence.
The principal
purpose of the offence would be to act as a deterrent. As we explain below,
we anticipate other remedial steps
being taken first and prosecution being a
last resort.
6.68
6.69
Our reasons for concluding the Solicitor-General should have
responsibility for prosecuting the new offence are discussed below
at
[6.87]–[6.89].
Our reasons for concluding courts should also
have power to make orders, both interim and final, for the retraction or
take
down of allegations or accusations are:
(a)
While the powers to take down or suppress material exist at
common law in other contexts,548 it is preferable to prescribe
them by statute so that breach of the orders may be made a separate criminal
offence and capable
of relatively straightforward enforcement in New
Zealand.
547 See [6.23].
548 L v R [2015] NZCA 279, [2016] 2 NZLR 21. See also David Harvey
internet.law.nz (4th ed, LexisNexis, Wellington, 2016).
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(b)
A retraction or take down order is likely to be the most effective
way of dealing with allegations in this context, especially
with online
publications. The orders may be made against the owners of servers
(responsible ones are likely to comply)
and New Zealand residents
responsible for the websites and blogs.
The recommended offence
6.70
6.71
6.72
Our recommendation is that it should be an offence for any person to
(i) publish an untrue allegation or accusation against
a judge or a
court where (ii) there is a real risk that the publication could
undermine public confidence in the independence,
integrity or impartiality of
the judiciary as an institution. The recommended offence would cover
statements of opinion, which
are not capable of proof, as well as allegations
of fact that are untrue. This is because opinions can be equally damaging.
After considering the options, we determined the offence should also cover
attacks on the court system as a whole or a particular
court as well as those
against a judge. The scope of the offence should make it clear that the
underlying policy behind the offence
is an attack on the administration of
justice and not the protection of the feelings of individual judges.
In
this context “publish” will require knowledge of the publication
by the person involved. In the context of liability
for third party
publications, such as comments on one’s social media account, for
example, we have considered analogous
cases from defamation law. We agree with
the Court of Appeal in Murray v Wishart that actual knowledge of the
third party publication should be required.549 A lower standard of
“ought to know” is challenging to apply consistently in the
context of social media, potentially
widens the scope of liability quite
dramatically and is difficult to justify as a reasonable limitation on freedom
of expression.
We consider people should be liable for third
party publications where there is (i) actual knowledge of the
publication,
(ii) a deliberate act (including inaction in the face of
actual knowledge) and (iii) power and control over the offending
material.550 This test was described by the Supreme Court of
British Columbia in Pritchard v Van Nes as representing the position in
Canada, although the court in that case departed from the requirement of
actual knowledge. This
test is broadly similar to that in Murray v
Wishart. It differs, however, in that it makes express the requirement of
power and control, and removes the “inference that [the
defendant] was
taking responsibility” for the publication from the elements of the test
itself.551 Some people have raised concerns this limb of the
test could potentially permit a host to avoid liability by expressly
disclaiming
responsibility while continuing to host the offending material.
As far as the Court in Pritchard disagreed with Murray on the
subject of actual knowledge,552 however, we consider the Court of
Appeal in Murray was correct for the reasons outlined above. Where
Murray v Wishart required actual knowledge, the Court in Pritchard
v Van Nes was willing to find liability for defamatory comments by third
parties where the defendant “ought to have anticipated”
that
such comments would be made.553 In Pritchard, the defendant
had responded to various comments on her original post and actively
encouraged discussion, but had not
responded specifically to the comment at
issue. On such facts, however, it arguably would be open to the court to
infer
actual knowledge circumstantially without having to remove the
requirement altogether.
549 Murray v Wishart [2014] NZCA 461, [2014] 3 NZLR 722 at [137]–[143].
550 Pritchard v Van Nes [2016] BCSC 686 at [108].
551 Murray v Wishart, above n 549, at [148].
552 Pritchard v Van Nes, above n 550, at [117].
553 At [110] and [117].
118 Law Commission Report
Freedom of expression
6.73
6.74
6.75
The requirement that there must be a real risk that the publication
could undermine public confidence in the judiciary would
make it clear that
the right to express legitimate criticism is not proscribed. Consistent with
the decision of the Full
Court of the High Court in Solicitor- General
v Smith,554 the offence remains, in our view, a reasonable and
necessary limitation upon the right to freedom of expression guaranteed by
section
14 of NZBORA. The rights guaranteed by NZBORA depend upon the rule of
law. The function of courts is to uphold the rule of law,
and the courts can
only effectively discharge that function if they command the authority and
respect of the public.555
The position is similar under
Article 10 of the European Convention on Human Rights.556
Article 10 protects the right to freedom of expression, and further
provides:
The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions
or penalties as are prescribed by law and are necessary in a democratic
society ... for maintaining the authority
and impartiality of the
judiciary.
The European Court of Human Rights has accordingly recognised
reasonable limitations on the right to freedom of expression in pursuit
of the
legitimate aim of maintaining the authority and impartiality of the judiciary.
Factors that the Court has taken into
account in determining the
reasonableness and proportionality of such limitations include whether or not
the expression was
made in the conduct of proceedings or by a lawyer in the
context of defending or pursuing a client’s interests;557
whether the expression is properly characterised as criticism, insult
or even gratuitous;558 whether the subject of the expression was a
matter of public interest;559 the chilling effect that the
limitation may have on legitimate criticism, including upon lawyers
advocating for their clients;560 and whether there was a factual
basis for criticism.561
For example, in Peruzzi v Italy
the Court determined that there was no breach of Article 10 where a
lawyer was convicted and fined for defaming a judge after
sending a letter to
the Judge and the Judge’s colleagues alleging that the Judge had
wilfully disregarded his or her
ethical obligations and possibly committed a
criminal offence.562 In Ravelo v Spain, on the other hand,
the Court held a lawyer’s conviction for libel for attributing similar
blameworthy conduct to a judge
in a written application in civil proceedings
to be a violation of Article 10. While the Court considered the lawyer could
legitimately
have been punished for his conduct, it was influenced by the
communication having been made solely in writing and only to the
court in the
context of defending a client’s interests, and the severity of the
penalty.563
Defence of truth
6.76
We consider that a defence of truth should be available in cases involving
allegations of fact if the person who has published
the allegations or
accusations is able to prove, on the balance of probabilities, that the
allegation or accusation was in fact
true or not materially different
from
554 Solicitor-General v Smith, above n 491. See above at [6.32]–[6.33].
555 Solicitor-General v Smith, above n 491, at [133] and [136].
556 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5 (opened for signature 4 September 1950, entered into force 3 September 1953), art 10.
557 Morice v France (2016) 62 EHRR 1 (Grand Chamber, ECHR); Nikula v Finland (2004) 38 EHRR 45 (Section IV, ECHR).
558 Erdogan v Turkey (346/04 and 39779/04) Section II, ECHR 27 May 2014.
559 Erdogan v Turkey, above n 558.
560 Ravelo v Spain (48074/10) Section III, ECHR 12 January 2016.
561 Peruzzi v Italy (39294/09) Section IV, ECHR 30 June 2015.
562 Peruzzi v Italy, above n 561.
563 Ravelo v Spain, above n 560.
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CHAPTER 6: Abusive allegations and false accusations against
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6.77
6.78
the truth. As we have already noted, it is currently unclear whether the
defence of truth is available at common law. With the
enactment of NZBORA, it
would perhaps now be difficult to justify the approach taken in
Attorney-General v Blomfield over 100 years ago.564 Truth
should now be a defence.
Consistent with the requirements of NZBORA,
defendants should be able to raise the defence of truth as of right. Also
relevant
to this consideration is the compellability of a judge to give
evidence. We are concerned to avoid the situation of a judge having
to give
evidence in court. If the allegations are in respect of the judge’s
conduct as a judge, the judge cannot be compelled
to give evidence: section
74(d) of the Evidence Act 2006.565 If, however, the allegations
relate to conduct outside the scope of section 74(d), then a judge might be
compelled to give
evidence, unless the court decides the evidence the judge is
being asked to give is inadmissible, irrelevant or oppressive, or it
would be
an abuse of process for the judge to be required to give
evidence.566
These are factors which the Solicitor-General would
be able to take into account when deciding whether it would be in the public
interest to prosecute the new offence.
We consider the defence should
largely be the same as the defence of truth in section 8 of the Defamation Act
1992 and clause 24(3)
in the draft Bill reflects this approach. While defamation
is a civil proceeding and the new proposed offence is criminal, the
same
underlying rationale applies. The defence of truth exists in defamation law
because an individual cannot claim damage
to a reputation that he or she does
not have. Similarly, a defendant cannot be said to be responsible for
undermining public confidence
in the judiciary where the allegations made
are in fact true. Section 8 reads as follows:
8 Truth
(1)
(2) (3)
In proceedings for defamation, the defence known before the commencement of
this Act as the defence of justification shall, after
the commencement of this
Act, be known as the defence of truth.
In proceedings for defamation
based on only some of the matter contained in a publication, the defendant may
allege and prove any
facts contained in the whole of the
publication.
In proceedings for defamation, a defence of truth
shall succeed if—
(a) (b)
the defendant proves that the imputations contained in the matter that
is the subject of the proceedings were true, or not
materially different from
the truth; or
where the proceedings are based on all or any of the matter
contained in a publication, the defendant proves that the publication
taken
as a whole was in substance true, or was in substance not materially different
from the truth.
6.79
Section 8(2) provides that where a claim is based on only part of a
statement, it is open to the defendant to plead and
prove the defence of truth
in relation to the statement as a whole. Accordingly, where the truth of part
of the statement cannot
be proved, the defence may succeed if that part
is immaterial in the context of the whole. Consistent with our approach
to
adopting section 8, we consider that the same rule should apply for the
proposed new offence. This is a factor the Solicitor-General
would be able
to take into account when considering whether a prosecution is in the
public interest, as it will not be possible
to limit a prosecution
to
564 Attorney-General v Blomfield, above n 520. See above at [6.36].
565 Warren v Warren [1997] QB 488 (CA). See also Deliu v New Zealand District Court [2016] NZHC 2806, [2017] NZAR 120 at [16]–[33].
566 Note there is no statutory provision in New Zealand relating to the
setting aside of either a witness summons issued under
s 159 of the Summary
Proceedings Act or a subpoena under r 9.52(1) of the High Court Rules, but it
is accepted in both situations
the Court has jurisdiction to do so: Re
Golightly [1974] 2 NZLR 297 (SC), Senior v Holdsworth [1976] 1 QB 23
(CA), and Tuck v Registrar of District Court (1991) 3 PRNZ 459 (HC) at
462–463. See also T Jenns “Subpoena of Judges” (2000) NZLJ
198.
120 Law Commission Report
6.80
6.81
only those allegations that are incontrovertibly false and the defendant may
be entitled to plead the truth of other parts of
a statement which cannot
be responded to without calling members of the judiciary to give
evidence.
We have considered whether there should be some restrictions on
a defendant raising a defence of truth. In particular, whether there
should
be some link between being able to raise the defence and the outcome of
a complaint under the Judicial Conduct
Commissioner and Judicial Conduct Panel
Act. As we have already explained, that Act provides a formal regime for
dealing with
complaints against judges. In the absence of a complaint or an
adverse recommendation, it would be reasonable to take the
position
that the allegation is without foundation. One option we therefore explored
was whether a defence of truth should
only be available where the defendant
had made the allegation or accusation the subject of a complaint under
the Judicial
Conduct Commissioner and Judicial Conduct Panel Act and then
only if the allegation or accusation was consistent with the ultimate
outcome
of the complaint under that Act.
We concluded, however, that this
option was too complicated and likely to result in undue delay. It would
require the
prosecution to be adjourned pending determination of any complaint
by the Judicial Conduct Commissioner. Also, the Judicial Conduct
Commissioner
and Judicial Conduct Panel Act processes, while designed to assess complaints,
do not necessarily make legal determinations
about the truth or otherwise of
specific factual allegations. We have concluded that the Judicial Conduct
Commissioner and
Judicial Conduct Panel Act processes should remain
separate from the criminal offence, especially as there would be potential
for
significant delay in the prosecution process. At the same time, however, we
have also concluded that the existence of an
unresolved complaint to the
Judicial Conduct Commissioner might be a factor the court could take into
account when deciding whether
to make an interim take down order. The
rejection or absence of a complaint under the Judicial Conduct Commissioner
and Judicial
Conduct Panel Act is also a factor the Solicitor-General might
take into account in considering whether a prosecution for the new
offence was
in the public interest.
No defence of honest opinion
6.82
For completeness, we note we do not consider that there should be a further
defence of honest opinion such as that available
in an action for
defamation under section 9 of the Defamation Act. This defence has never
been a part of the law of contempt,
and it is not consistent with the overall
purpose of this part of the law of contempt, which is to protect the
independence,
integrity and impartiality of the judiciary as an
institution. Further, the likely effect of a defence of honest opinion
would be to confine the proposed offence to a very small selection of
exceptional cases.
Take down orders
6.83
6.84
The High Court should have statutory powers to make both interim and
final orders for the retraction or take down of the
allegation or accusation.
The Court should be able to exercise the power to make a take down order in
any case where a person
has been charged with the new offence and the Court
is satisfied there is an arguable case that the person has committed
the
offence. The Court should also be able to make an interim order pending the
filing of a charge.
The High Court’s powers here would be
discretionary. The Court would have to be satisfied that the risk of undermining
public
confidence was sufficient to justify interfering with the
person’s rights to freedom of expression. Under the provision,
the Court
would not remove statements of legitimate criticism by anyone exercising their
rights to freedom of expression. Non-compliance
with any order to retract or
take down the allegation or accusation would also be a separate criminal
offence.
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6.85
6.86
In addition we recommend that the High Court be able to make orders
requiring the publication of a correction or an apology. Clause
26(1) of the
draft Bill gives effect to this recommendation.
In the same way as we
have provided for this in relation to take down orders made to preserve a fair
trial,567 we recommend that the accredited media should have
standing to be heard in relation to, any application for a take down
order.
Investigation and prosecution
6.87
6.88
We have considered whether the Solicitor-General or the Police should
be responsible for investigating and bringing prosecutions
for the new
offence. We have discussed the different options with the
Solicitor-General and the Police Prosecutions Service
and have reached the
view that the Solicitor-General should retain responsibility in this area.
The Solicitor-General agrees.
We discuss prosecution issues in more
detail in chapter 7 at [7.47] to [7.54] of the Report, but there are
five reasons
why responsibility for investigating and, where appropriate,
bringing proceedings for the new offence should be with the
Solicitor-General:
(a) (b) (c)
(d)
(e)
This is the current position in respect of the common law contempt
of scandalising the court.568 This reflects the constitutional role
of the Law Officers of the Crown in upholding the rule of law by responding to
unwarranted attacks
on the independence, integrity and impartiality of the
judiciary.569
The fact that the other new offences are to be
prosecuted by the Police in the normal way does not mean that the new offence
replacing
scandalising the court, which has always been in a special
category of its own, should now be prosecuted by the Police.
Statutory
codification is not a reason for altering the classification of this
offence.
The Solicitor-General should assess the public interest element
in bringing proceedings for the new offence, taking into account
wider
public interest considerations (such as the risk of further adverse
publicity), the defendant’s privilege against
self-incrimination
and whether the judge involved is likely to need to give evidence (refer
above to separate discussion
at [6.77]), the absence or outcome of any
complaint to the Police (in the case of an allegation of bribery or corruption)
or the
Judicial Conduct Commissioner (in the case of alleged misconduct) and the
adequacy of any explanation.
The evidence for such contempts (a public
statement in the media or online) will usually be in the public domain and it
should usually
be a relatively straightforward matter to seek an explanation
from the potential defendant. The fact that Crown Law is not set
up to conduct
first instance investigations, obtain search warrants or seize evidence, is
therefore not the barrier it could be
for other types of offences. If such
steps are required, there is no reason why Crown Law should not be able to
obtain appropriate
assistance from the Police. When necessary Crown Law
should be able to request the Police to exercise the enforcement powers
the
Police have to investigate an alleged offence.
We are also concerned
that there would be practical difficulties in changing the
prosecutorial responsibility
for these particular contempt offences. The Police
have made it clear to us that administration of justice offences of this nature
do not receive investigation or prosecution priority. This means that our
proposals, if implemented, would be unlikely
567 See above at [2.83].
568 See Re Wiseman, above n 463; Solicitor General v Radio Avon, above n 458; and Solicitor-General v Smith, above n 491.
569 See McGrath, above n 466, at 203 and 213–214.
122 Law Commission Report
6.89
to lead to charges in cases where they are currently needed if the
Police were to have prosecutorial responsibility.
We therefore
recommend that the Solicitor-General should be responsible for
filtering prosecutions by investigating and
deciding whether there is a
sufficient evidential base to bring a prosecution and whether the prosecution
is in the public interest.
Only the Solicitor-General would then also be able to
apply to the High Court for a take down order. Our recommendations concerning
take down orders are reflected in clauses 26 to 27 of the draft Bill.
Approach in practice
6.90
With our recommendations we envisage there would be a number of steps that
would normally occur before a prosecution was brought
by the Solicitor-General.
Prosecuting the replacement scandalising offence would normally be the
last resort. We see
the following steps being available:
(a) (b) (c) (d)
A public statement by the Attorney-General or Solicitor-General,
following a complaint or acting on his or her own initiative, responding
to the
unwarranted attack on the judiciary and seeking a retraction or an
apology.
A letter from the Solicitor-General, following a complaint or
acting on her own initiative, to the alleged offender asking for
a retraction
and a voluntary take down of the offending publication and/or an
apology.
An application by the Solicitor-General for an interim take
down order to have the offending publication removed where
there is
an arguable case an offence has been committed. Non-compliance with that
order would be a separate offence.
A prosecution by the
Solicitor-General for the replacement scandalising offence. The High Court
could make interim orders for the
removal of the offending publication pending
the hearing of the prosecution. The Court could also make
permanent
orders where appropriate.
6.91
6.92
6.93
Prosecution of the new offence would be transferred to the High Court. We
discuss the reasons for this later in the section on prosecutions
in chapter 7,
but essentially it is to reflect the more serious nature of the offence, to
ensure that a consistent approach
is taken, and, to the extent this is
possible, to ensure cases are seen to be dealt with in a disinterested
court.
The public interest test to be applied in deciding whether
to bring proceedings would be applicable as it is required
in the
Prosecution Guidelines for all public prosecutions.
The existence of the
new offence as the ultimate sanction should act as a cost effective deterrent.
The existence of other effective
remedial steps before a prosecution is
brought should also ensure that prosecution for the new offence is the last
resort.
Penalty levels
6.94
The more serious nature of the offence warrants a penalty that is greater
than the six months’ imprisonment proposed for
publishing information
that poses a real risk of prejudicing a fair trial. We note that a term of
imprisonment not exceeding
two years is imposed for the offence of causing
harm by posting digital communications under section 22 of the Harmful
Digital
Communications Act 2015. We consider this new offence to be just as
serious and recommend that the maximum penalty for the
offence should be
a term of imprisonment up to but not including two years or a fine not
exceeding $50,000, or a fine
not exceeding $100,000 for
a
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CHAPTER 6: Abusive allegations and false accusations against
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6.95
corporate defendant. A maximum penalty at this level would ensure the
prosecution would be heard by a judge alone sitting without
a
jury.
Further discussion around how we have set penalty levels
across the Report is found in chapter 7.570
An extended offence?
6.96
6.97
6.98
6.99
6.100
During the course of our review, members of the judiciary, the
Solicitor-General and members of the legal profession have raised
concerns
about whether the scope of any new offence should extend to cover more subtle
ways of subjecting the courts and
judges to pressure, including conduct
such as the deliberate publication of private information about judges
(their private
addresses and facts about their family members) and the
sending of offensive material in documentary form or online
to courts,
judges and court staff. We share the concerns expressed about the publication
of private information and communications
of this nature, as well as other more
covert attempts to influence judges, especially in the age of the internet and
social media.
We consider these to be serious forms of abuse which are
becoming real issues inimical to the due administration of justice and
potentially to judicial and court staff recruitment.
In the United
Kingdom a recent survey found “strong levels of disenchantment”
among the judiciary, with many judges
reportedly intending to leave their jobs
early in the next five years. Over a third of the judges surveyed were
concerned for
their safety outside court, and 15 per cent were worried
specifically because of social media, fearing threats and personal
abuse
or being identified and targeted.571 The survey also pointed to,
among other concerns, low judicial morale and a loss of judicial
independence.
While we share these concerns, we do not consider it
would be appropriate to extend our proposed new offence to cover
conduct
of this nature. The publication of private information which is true would not
be caught by our proposed new offence.
Private communications which are not
published would not be capable of undermining public confidence in the
independence, integrity
and impartiality of the judiciary as an institution. In
our view, an extended offence of this nature would therefore be outside
the
scope of this reference.
At the same time, however, these concerns
do warrant further consideration. In our view they may ultimately need to
be
addressed by separate legislation, possibly by the addition of new
specific judicial harassment provisions in the Harmful Digital
Communications
Act or the Harassment Act or the enactment of a specific new offence akin
to abuse of a public office holder.
In our view, the following factors would
be relevant to such further consideration.
First, the Harmful Digital
Communications Act is still new. It may be able to address some of these
concerns. We have already
described this legislation572 and the
view of some submitters that it is unlikely to prove effective in its
present form to deal with judicial harassment,
particularly because they
consider that it may require attempts at mediation before seeking court
orders.573 We think, however, that this may be too literal a
reading of the new Act. As discussed above at [6.43], the Act provides
that mediation and negotiation along with other methods are to be used
“as appropriate”.574
570 See chapter 7 at [7.59]–[7.66].
571 Frances Gibb “Dejected judges look to the exit as pay falls and personal danger grows” The Times (online ed, United Kingdom, 10 February
2017).
572 See above at [6.42]–[6.44].
573 See above at [6.63]–[6.64].
574 Harmful Digital Communications Act 2015, s 8(1)(c).
124 Law Commission Report
6.101
6.102
6.103
The Approved Agency, Netsafe, may decide to take no action and the
complainant may seek an order from the court after Netsafe has
had a reasonable
opportunity to consider the complaint.575
Further, the Police may
proceed directly to seek an order from the court where a threat to the
safety of an individual
is at issue. The policy of Netsafe investigating
complaints is not to contact alleged perpetrators without the consent of
the complainant. We consider that, while the issue has yet to be considered
other than hypothetically, it is unlikely Netsafe
would request or require
that judges attend mediation with those making allegations against them. The
response of Netsafe is
likely to be to take no further action and instead
permit the complainant to proceed to court to seek an
order.576
Second, the issue of deliberate publication of
personal information specifically targeted at judges may begin to affect the due
administration
of justice. With the digital age, people have an almost
unrestrained ability to communicate their views and share any information
they
wish by way of the internet and social media. This lack of constraint has
resulted in damaging and unwarranted targeting of
many people in public life.
In some situations, the material published is sufficiently objectionable to be
defamatory, but other
times it is not. It is simply the public exposure
of factual information about the person that causes distress.
Third,
some of the offensive material sent to courts and members of the
judiciary is grossly abusive. There is little
doubt that those
responsible ought to be held accountable for their conduct.
RECOMMENDATIONS
R42
R43
R44
R45
The common law of contempt of scandalising the court should be
abolished.
It should be an offence for any person (i) to publish
an untrue allegation or accusation against a judge or a court (ii)
when
there is a real risk that the publication could undermine public confidence
in the independence, integrity or impartiality
of the judiciary or a
court.
The maximum penalty for the offence in R43 should be a term of
imprisonment up to but not including two years or a fine not exceeding
$50,000
or, in the case of a body corporate, a fine not exceeding $100,000.
It should be a defence for a person prosecuted for the offence in R43
to prove on the balance of probabilities that:
(a)
(b)
the allegation or accusation was true (i.e. a defence of truth should
be available to the person publishing the material); or
the person was the online host or distributor of the publication and
was unaware it contained the allegation or accusation.
R46
The Solicitor-General should be responsible for receiving complaints and
filtering potential prosecutions by investigating and
deciding whether there
is a sufficient evidential base to bring a prosecution and whether prosecution
is in the public interest.
In deciding whether there is sufficient evidence,
the Solicitor-General would be able to take account of the absence
of
any complaint about the judge’s conduct to the Police or the
Judicial Conduct Commissioner and the adequacy of any
explanation.
575 See above at n 530.
576 In a recent case, a person was able to complain directly to the
Police of an alleged offence under s 22 of the Harmful
Digital Communications
Act 2015, and the matter was dealt with as a standard criminal prosecution
without resorting to alternative
resolution processes: New Zealand Police v
B, above n 536, at [6].
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CHAPTER 6: Abusive allegations and false accusations against
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R47
If the Solicitor-General has reason to believe that a person may have
committed an offence against R43, the Solicitor-General
may, but is not
obliged to, take any of the following action:
(a) (b) (c)
(d)
request the alleged offender to retract the allegation or accusation or
apologise for it, or both:
request the alleged offender to retract the
allegation or accusation pending the hearing of the charge:
request an
online content host to take down or disable public access to any specified
information relating to the allegation or
accusation that the host has made
accessible to members of the public: or
apply to the High Court for
an order under R48.
R48
If the Solicitor-General makes an application under R47(d), the High Court may, if satisfied that there is an arguable case that a person has committed an offence against R43, order the person to:
(a) (b) (c) (d) (e)
take down or disable public access to material;
retract the
allegation or accusation;
not encourage any other persons to engage in
similar communications;
publish a correction; or publish an apology.
R49
The Court may:
(a) (b) (c)
make any order under R48 on an interim basis, pending the filing of a
charge;
vary or discharge any interim order; or
make an interim
order permanent, but only if the interim order is accepted or a person is
convicted of the charge.
R50
R51
In addition to any of the orders the Court may make under R48, the Court should have power to order that an online content host take down or disable public access to any material related to the suspected offence that the host has made accessible to members of the public.
When making an order that a correction or apology be published under
R48, the Court should, subject to the New Zealand Bill
of Rights Act 1990, be
able to include requirements relating to:
(a) (b) (c)
the content of the correction or apology;
the time of publication
of the correction or apology; and
the prominence to be given to the
correction in the particular medium in which it is published.
R52
A provision modelled on section 210 of the Criminal Procedure Act
2011 should give members of accredited media, and
any other person
reporting on the proceedings with the permission of the court, standing to
be heard on any application
for a take down order under R48(a) or any
application to renew, vary or revoke any order.
126 Law Commission Report
R53
R54
R55
Subpart 7 of Part 6 of the Criminal Procedure Act 2011 should be amended
to give a right of appeal against any decision to make
or refuse to make
any order under R48 or R50 or to renew, vary, or revoke an order made under
R48 or R50.
It should be an offence for a person knowingly or recklessly
to breach any order made under
R48 or R50.
The offence in R54 should be
punishable:
(a)
(b)
in the case of an individual, by a term of imprisonment not exceeding 6
months or a fine not exceeding $25,000; or
in the case of a body
corporate, by a fine not exceeding $100,000.
R56
R57
It should be a strict liability offence to fail to comply with an order made
under R48 or R50.
The offence in R56 should be punishable:
(a) (b)
in the case of an individual, by a fine not exceeding $10,000;
or
in the case of a body corporate, by a fine not exceeding
$40,000.
R58
Appeals in respect of the offences in R43, R54, and R56 should be under
subpart 3 (Appeals against conviction) and subpart 4
(Appeals against
sentence) of Part 6 of the Criminal Procedure Act 2011 because the
offences in R43, R54, and R56 are
ordinary offences and not contempt of
court.
Reforming the law of contempt of court: A modern statute 127
CHAPTER 7: Inherent jurisdiction, prosecutions and penalties
Chapter 7
Inherent jurisdiction, prosecutions and
penalties
INTRODUCTION
7.1
This chapter is divided into three sections addressing the remaining issues
considered as part of our review. Here we report on:
.
whether the High Court should retain its common law inherent
jurisdiction to punish
contempt;
. the prosecution procedure that
should apply in respect of the new offences; and
. the
maximum penalty levels that should apply for the recommended new
offences.
SHOULD THE HIGH COURT RETAIN ITS INHERENT JURISDICTION TO HOLD A PERSON
IN CONTEMPT?
7.2
Common law authority to punish contempt falls within the inherent
jurisdiction of the High Court.577 Relevant also are the
implied powers that all courts of record have to do what is necessary
to enable them to exercise
their jurisdiction and perform their
functions.578
Inherent jurisdiction and implied powers
7.3
7.4
As already mentioned, the High Court has authority under its inherent
jurisdiction to deal with every aspect of contempt not otherwise
addressed in
statute.579 The Court has authority under its inherent jurisdiction
to find conduct unlawful for interfering with the due administration of
justice.580 The High Court’s authority under its jurisdiction
extends to upholding the authority of statutory courts and tribunals.
It can
punish a person for contempt of a statutory court’s or tribunal’s
processes where the relevant court or tribunal
lacks jurisdiction to do
this.581
Again, as we have also discussed, courts with
substantive jurisdiction conferred solely by statute, such as the District
Court, do not have an inherent jurisdiction. Instead they have the implied
powers that are necessary for the exercise of
their statutory functions
and duties.582
The power of the District Court, for example, to
commit for contempt is incidental or ancillary to its substantive statutory
jurisdiction
either because statute confers the power
expressly,583
577 Discussed in chapter 1 at [1.8]–[1.17].
578 A court of record is “[a] court that is required to keep a record of its proceedings”: Bryan A Garner (ed) Black’s Law Dictionary (9th ed, Thomson Reuters, St Paul, 2009) at 407.
579 Discussed in chapter 1 at [1.8]–[1.16]; see Senior Courts Act, s 12(b); McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SC12.02]; Sir Jack Jacob “The Inherent Jurisdiction of the Court” (1970) CLP 23; R Joseph “Inherent Jurisdiction and Inherent Powers in New Zealand” [2005] CanterLawRw 10; (2005) 11 Canta LR 220; and MR Ferrere “The Inherent Jurisdiction and its Limits” (2013) 13 Otago LR 107.
580 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [113]–[114].
581 Discussed in chapter 1 at [1.15]; see Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at 616.
582 McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276.
583 See for example District Court Act 2016, s 212.
128 Law Commission Report
7.5
7.6
or because it is necessarily implied to enable the Court to discharge
its statutory jurisdiction effectively.584
There has
sometimes been confusion over the extent to which the powers of the
District Court and other courts that
do not have inherent jurisdiction
enable those courts to address interferences with the administration of
justice that happen
outside the court itself.585 To avoid
confusion between the authority of the High Court under its inherent
jurisdiction and the “inherent and implied”
powers of statutory
courts under their statutory jurisdictions,586 we have throughout
the Report described the contempt authority of the High Court as inherent and
the powers of the District Court
as express or implied. As already noted, in our
view this reflects the differences between the authority and power of the two
Courts
and recognises the more limited nature of the implied powers under the
statutory jurisdiction of the District Court.587
The correct
position seems to be that implied powers do not extend to the power to
punish contempt outside and away from
the court. Only the High Court, under its
inherent jurisdiction, has the authority necessary to punish contempt by third
parties
that occurs outside and away from the court.
Inherent jurisdiction may be circumscribed by
statute
7.7
7.8
To the extent that conduct is exclusively regulated by statutory
provisions, the High Court may not exercise its authority under
its inherent
jurisdiction in a manner that is contrary to those
provisions.588
The High Court’s contempt jurisdiction
is therefore circumscribed by statutory provisions which replace its
authority
under the inherent jurisdiction so far as they extend. The
Court’s authority under its inherent jurisdiction may supply
any
deficiency and fill any gap in the statute.589 In chapter 1 we
noted that over the years there have been numerous statutory inroads into the
common law of contempt and as a result
the source of jurisdiction for contempt
is now significantly statutory. As a result the law of contempt of court is a
mix of court
decisions based on the common law inherent jurisdiction and
legislation, including powers implied under that legislation. There
are
relatively few areas where the legal authority to punish for contempt still
falls within the High Court’s authority
under the inherent jurisdiction.
These are:
. publishing material that may interfere
with a defendant’s right to receive a fair trial
(discussed in chapter 2);
. placing improper
pressure on litigants in civil proceedings and restricting access to the
courts
(discussed in chapter 2);
. actions by jurors
that may impact on a defendant’s right to a fair trial or erode confidence
in
the jury system (discussed in chapter 4); and
584 As to the meaning of “necessary implication” see R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2003] 1 AC 563 (HL) at
[45], B v Auckland District Law Society [2003] UKPC 38, [2004] 1 NZLR 326 at [58], and Cropp v Judicial Committee [2008] NZSC 46, [2008] 3
NZLR 774 at [26].
585 This issue is discussed in R Joseph, above n 579; and Ferrere, above n 579.
586 See for example, KLP v RSF [2009] NZFLR 833 (HC); McMenamin v Attorney-General, above n 582; Transport Accident Investigation
Commission v District Court [2008] NZAR 595 (HC) at [20].
587 For example, see above at [2.2] and [6.34].
588 Siemer v Solicitor-General [2013], above n 580, at [126]. McGechan on Procedure says that, where a matter before the court is already the subject of precise legislation, the court will rarely choose to exercise any inherent powers. The inherent jurisdiction should be developed and exercised in harmony with the relevant legislation. See McGechan on Procedure, above n 579, at [SC12.02] citing R v Moke and Lawrence [1996] 1 NZLR
263 (CA) as authority. See also below at [7.20].
589 McGechan on Procedure, above n 579, at [SC12.02].
Reforming the law of contempt of court: A modern statute 129
CHAPTER 7: Inherent jurisdiction, prosecutions and penalties
. publishing material that undermines public confidence in
the judiciary and the courts themselves (discussed in chapter
6).
7.9
7.10
We have recommended in previous chapters replacing the inherent
jurisdiction and the use of the High Court’s common
law authority in
these areas with statutory jurisdiction and new offences. In particular, we
recommend:
. A new offence to replace the current strict
liability contempt of publishing information that
interferes with a fair trial (chapter 2 at [2.92] and
R7);
. A new offence to replace the common law contempt
where a member of a jury intentionally
investigates or researches information knowing that it may be relevant to
the case he or she is trying (chapter 4 at [4.24] and R18);
.
A new offence to replace the common law contempt where any person,
including a person
serving on a jury, intentionally discloses, solicits or publishes details of a jury’s deliberations
(chapter 4 at [4.74] and R24); and
. A new
offence to replace the common law contempt of scandalising the court (also
referred
to as scandalising the judiciary or scandalising judges) (chapter 6 at
[6.65] and R43).
The enactment of these recommended new statutory
offences would significantly circumscribe the ability of the High Court to use
its
inherent jurisdiction to punish contempt.
Proposal in the Issues Paper
7.11
7.12
7.13
In the Issues Paper the Law Commission asked whether all forms of contempt
currently falling within the High Court’s inherent
jurisdiction should
be replaced by statutory offences, and whether Parliament should abolish
contempt of court at common
law because it would no longer be
necessary.
The Commission also invited feedback on whether the current
exception for contempt of court in section 9 of the Crimes Act
1961 was
still appropriate in modern New Zealand.590 The Issues Paper
noted the punitive nature of contempt and suggested Parliament should bring
all contempt offences into line with
every other criminal offence in New
Zealand and make them statutory. The Issues Paper said it was difficult to
see why contempt
laws should not be in a statute which would also improve
clarity and accessibility.
The Commission expressed the preliminary
view that Parliament should extinguish all powers and authority of the courts
to punish
any person for contempt of court at common law and make the
various forms of contempt statutory.
The arguments for contempt being statutory
7.14
The Issues Paper outlined a number of arguments in favour of replacing
common law contempt with a statute:
. It would complete
the codification of contempt and mean all offences relating to
the
administration of justice would be statutory and consequently clearer and
more accessible to the New Zealand public. The law relating
to interference
with the administration of justice (contempt) would be in one place: the
statute book.
. The serious nature of contempt and the
severity of potential punishment for it, including
substantial fines and up to two years’ imprisonment, meant it was
important that those
590 See discussion in chapter 1 at [1.57]‒[1.63].
130 Law Commission Report
affected were able to discern what behaviour was unlawful and what the consequences of such behaviour might be.
. The law would have greater democratic legitimacy and certainty if it were made by
Parliament.
. Replacing common law contempt with statutory provisions would enable the public to have
its say on the shape of contempt laws and the values the laws embody, rather than leaving the judiciary to determine the scope and nature of the offending conduct without consultation or public discussion as to what the appropriate boundaries should be.
. Parliament could address gaps in the jurisdiction of the District Court and other statutory
courts in a statute.
The arguments against codification
7.15
The Commission acknowledged in the Issues Paper there were
also arguments against attempting to address contempt
in a statute
completely and against extinguishing the High Court’s inherent
authority to punish contempt:
. The breadth of matters
that may potentially qualify as interfering with the administration
of
justice makes it difficult to draft a sufficiently comprehensive
statute.
. The scope of conduct that the law of
contempt may cover means there is the potential for the
drafters of statutes to miss some conduct.
. We
could only overcome concern about gaps in a statute by retaining a
residual role for
the inherent jurisdiction, or by having a general broad catch-all statutory
provision covering other conduct that might interfere
with the
administration of justice. A statutory catch-all provision would simply
replicate the residual role of the inherent jurisdiction
and would not make the
law any clearer.
The views of submitters and feedback from
consultation
7.16
7.17
Submitters expressed a range of views. There was no consensus. There was
extensive support for greater codification to make
the law clearer and
more accessible, although many who favoured further codification also
supported retaining the High
Court’s inherent jurisdiction to deal with
situations not addressed in the statutory provisions. The New Zealand Law
Society
(NZLS) said that, because it was so difficult to predict all the
possible forms which contempt may take, it would prefer
to retain a
residual contempt power. A majority of those consulted were concerned that
full codification in statute was
not possible and attempting this risked
missing some conduct. Most agreed that a statutory catch-all offence
would
be necessary to address this risk if we abrogated the inherent
jurisdiction. Some submitters were concerned that we would need
to construct
the elements of such a catch-all offence broadly and the provision would
consequently be no clearer than the common
law.
The Police in its
submissions supported codifying common law contempt in statute, but did not
favour complete codification and abolition
of the High Court’s inherent
jurisdiction because of the risk that some conduct might be missed. It also
suggested it should
be responsible for laying charges in the same way as for
other offences.
Recommended approach
7.18
In view of the concerns raised by a number of submitters and by senior
judges we consulted, we have decided not to recommend the
complete abolition of
the authority of the High Court under its inherent jurisdiction to punish for
contempt. Our reasons for reaching
this conclusion are:
Reforming the law of contempt of court: A modern statute 131
CHAPTER 7: Inherent jurisdiction, prosecutions and penalties
(a)
(b) (c) (d)
The High Court’s general inherent jurisdiction is crucial in enabling
the Court to exercise powers in the public interest
for the purpose of
ensuring the fair, transparent, expeditious and efficient administration of
justice in New Zealand and maintaining
public confidence in the justice system.
It is an invaluable jurisdiction which no-one has seriously suggested should
be abolished.
The existence of the general inherent jurisdiction is not at issue
in this review of the law.591
The common law authority of the
High Court to punish for contempt is an important aspect of the Court’s
general inherent jurisdiction
as recognised by section 9(a) of the Crimes
Act
1961. We should therefore adopt a cautious approach before
recommending abolition of any aspect of this important jurisdiction.
Before
doing so, we would need to be confident that the proposed replacement
legislation covered the whole ground. In view of the
prospect of unforeseen
circumstances, especially with the advent of the digital age, we are not
satisfied this test could
be met.592
Our recommendations for
enacting a range of new statutory provisions to replace a large part of the
ground should go a long
way to achieving greater accessibility and
clearer understanding of the law of contempt. At least to that extent, the
new provisions will replace the uncertainties of the common law.593
But retaining the common law authority under the inherent jurisdiction
will ensure the High Court keeps a residual authority
to cover matters not
addressed by the legislation, for example a publication that might affect a
civil case.
Repealing section 9(a) of the Crimes Act 1961 would also
be likely to raise constitutional issues because the existing provision
currently preserves not only the authority of the High Court to punish for
contempt but also the authority of the House of Representatives
to do
so.594 The latter authority is not at issue in this review.
Section 9(a) could, however, be amended so that only the authority
of the
High Court, and not the House, to punish for contempt is repealed or
amended.
7.19
7.20
The new statutory provisions recommended in this Report, and
included in the draft Administration of Justice (Reform
of Contempt of
Court) Bill, expressly state that the new provisions substitute the
existing common law of contempt and
replace contempt entirely in the areas
they cover (see clause 29). They replace all other authority to punish
conduct falling
within those provisions. To the extent that any matter is
regulated by those provisions, the High Court would not be able to
exercise
its inherent jurisdiction in a manner that is contrary to
them.595
In order for Parliament to restrict the
Court’s jurisdiction or limit its authority, a statute needs clear
and unambiguous
language.596 The general constitutional principles
that apply mean the courts will not allow “by implication
drafting” in a statute
to restrict their
jurisdiction.597
Ultimately, it is for the Court to determine as
a matter of interpretation whether any statutory provision covers any situation
before the courts. An express statement in the legislation
should,
591 See chapter 1 at [1.37].
592 See chapter 1 at [1.49].
593 See for example above at [1.41]–[1.43], [2.50], and [5.16]–[5.21]; and Siemer v Solicitor-General [2013], above n 580, at [126].
594 See chapter 1 at [1.9(b)].
595 See above at [7.7]–[7.8].
596 The principle espoused by Lord Atkinson in Attorney-General v De Keyser’s Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508 (HL) at 539. See also the more recent
New Zealand Supreme Court decisions: Siemer v Solicitor-General [2013], above n 580, at [142] and [148]–[149]; and Erceg v Erceg [2016] NZSC
135 at [3].
597 For a general discussion see; John Burrows “Common Law Among the Statutes: The Lord Cooke Lecture 2007” (2008) 39 VUWLR 401; and
Reed Dickerson “Statutes and Constitutions in an Age of Common
Law” (1987) 48 U Pitt L Rev 773 at 783.
132 Law Commission Report
however, make it clear that the common law jurisdiction of the Court to
punish the contempt is replaced. As the author of Burrows and Carter Statute
Law in New Zealand notes:598
7.21
7.22
The courts are particularly reluctant to find that statute has abrogated
the inherent jurisdiction of the court in any matter,
although of course that
jurisdiction cannot stand if it is totally inconsistent with the provisions
of legislation.
We also recommend the legislation expressly preserve
the High Court’s common law authority (forming part of the High
Court’s
inherent jurisdiction) to deal with any matter falling outside
the scope of the legislation (see clause 29). Nothing in the new
Act should
limit or affect any authority or power of the courts to punish any person for
contempt of court in any case to which
the Act does not apply.
As
discussed in chapter 1, the contempt jurisdiction of the Supreme Court and
the Court of Appeal is limited to any relevant
statutory powers such as those
conferred by section 165 of the Senior Courts Act and, possibly, in their
individual capacities
as judges of the High Court, to exercising the powers
of High Court Judges.599 With the repeal of section 35(4) of the
Supreme Court Act 2003, which provided that the Supreme Court had the
same power
and authority as the High Court to punish for contempt, the
Supreme Court itself no longer has that express power and authority.
We
recommend that any doubt about the contempt powers of the Supreme Court and
the Court of Appeal should be avoided by enacting
a provision that makes
it clear that, in respect of contempt of court, both appellate courts have the
same authority as the High
Court under its inherent jurisdiction. This
recommendation is implemented by clause 29(3) included in the draft
Administration
of Justice (Reform of Contempt of Court) Bill.
“PROSECUTION” PROCEDURE
7.23
7.24
7.25
7.26
In this section of the chapter we discuss the prosecution
procedure applying to the new statutory offences and whether
we need any
special arrangements for prosecuting these new offences.
As discussed
in chapter 1, contempt is currently not a true offence and there is no
resulting conviction or criminal record,
although contempt may result in a
court imposing a criminal penalty. With the exception of disruptive
conduct in
the face of the court,600 contempt proceedings
begin with an originating application, so are procedurally more akin to
civil proceedings. They receive
a civil file number in the court system and the
rules of evidence that apply are the civil ones, although the standard of proof
is the criminal one.
The procedure used for contempt proceedings is
characterised by the use of written rather than oral evidence, limited
cross-examination
and matters being proved to the judge’s satisfaction
based on their own judicial knowledge and by taking judicial notice
in light of
their experience. Proceedings, except those for civil contempt, are generally
brought in the name of the Solicitor-
General, rather than by the Police
Prosecution Service. As discussed in chapter 5, contempt applications can be
made in civil
proceedings by any party to those proceedings where a court
order made in that party’s favour is not complied with.
In
situations where there is disruptive conduct in the face of the court
courts can, as we discussed in chapter 3, act
on their own motion and
deal with the contempt in the context of the proceedings already before the
court.
598 Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 577.
599 See chapter 1 at [1.11].
600 The procedure used by the court where a judge has to deal with
disruptive conduct in the face of the court or
during the course of any
proceedings before the court is discussed in chapter 2.
Reforming the law of contempt of court: A modern statute 133
CHAPTER 7: Inherent jurisdiction, prosecutions and penalties
7.27
We have recommended in the previous chapters (chapter 2 – Publication contempt, chapter
4 – Juror contempt, and chapter 6 – Abusive allegations and
false accusations against judges and courts) the
introduction of new
offences to replace contempt. This will result in the ordinary criminal
prosecution procedure replacing
current contempt procedure. If no special
arrangements are made, the new offences would be prosecuted in the usual way
by the
Police under the Criminal Procedure Act 2011. The new offences are all
category 1 and 2 offences so would be prosecuted in the
District Court. The
defendant charged with a category 1 or 2 offence has no right to elect to be
tried by a jury.601
Proposals in Issues Paper
7.28
The Issues Paper outlined two options for prosecuting the new statutory
offences. These were:
(a)
(b)
The new offences should be prosecuted in the usual way in the District Court under the
Criminal Procedure Act; or
A special procedure should be developed
for them that continued to require an application by the
Solicitor-General.
7.29
The Commission suggested it might also be appropriate for a
different process to apply to different statutory contempt offences,
depending on the nature of the offence. For example, contempt in the
courtroom would need to have a special procedure
to enable the court to
respond immediately, while the ordinary prosecution procedure might be
appropriate for the new offences
that replace other forms of contempt, such
as the contempt of prejudicing a fair trial.
The option of applying the ordinary procedure
7.30
7.31
7.32
7.33
If the new offences are prosecuted in the same way as other criminal
offences, the Police would file a charging document
in the District Court.
The procedural protections specified in the Criminal Procedure Act would
apply in the usual way and
so would the criminal rules of evidence. Under
this option, a conviction would result in a person having a criminal
record.
The Commission suggested the Solicitor-General or a Crown
Solicitor could prosecute offences related to business in the higher
courts in
the High Court, with all other offences being referred by the Police to the
District Court. Offences relating to business
in the higher courts could
be included in the Protocol established by the Chief High Court Judge and the
Chief District Court
Judge identifying cases that must always be considered for
transfer to the High Court.602
Replacing contempt with
ordinary offences is consistent with earlier codifications of contempt in the
provisions in Part 6 of the
Crimes Act (Crimes affecting the administration
of law and justice).
To be effective, however, these new offences
would need to receive greater priority by prosecution authorities than
they currently give to offences in Part 6 of the Crimes Act
1961.
The new offences, like those currently in Part 6 of the Crimes Act, are
constitutionally important because they uphold the
fair administration of
justice and the rule of law.
601 Criminal Procedure Act 2011, s 6 states that:
category 1 offence means—
(a)
an offence that is not punishable by a term of imprisonment
category 2 offence means—
(a) (b)
(c)
an offence punishable by a term of imprisonment of less than 2 years;
or
an offence that, if committed by a body corporate, is punishable by only
a fine, but that would be punishable by a term of imprisonment
of less than 2
years if committed by an individual; or
an offence punishable by a
community-based sentence and not punishable by a term of imprisonment.
602 This would be in accordance with the protocol established under s 66
of the Criminal Procedure Act 2011.
134 Law Commission Report
The option of a special procedure
7.34
The other option, which the Commission noted but did not fully develop
in the Issues Paper, would be to provide for a special
procedure for contempt
that enabled a judge-alone hearing brought on application by either the
Solicitor-General or Crown Counsel.
The special procedure could be similar to
the current approach to contempt, where proceedings are commenced with an
originating
application. The Court would need to consider whether a finding
of contempt would result in a conviction that would be recorded
on the
offender’s criminal record. Under this option Parliament would also
need to consider whether the full range of
sentencing options under the
Sentencing Act 2002 should be available. It would need to resolve the
question whether the
court should be able to act of its own motion.
The views of submitters and feedback from
consultation
7.35
7.36
7.37
7.38
On the question of prosecution process, the NZLS favoured
placing responsibility for prosecutions in the hands of
Crown Solicitors,
rather than the Police, because this appropriately recognised the importance
of the offence of contempt. The
NZLS did not think it should be necessary
to require the approval of the Solicitor-General for a prosecution. The
Auckland
District Law Society Incorporated also favoured the Crown Solicitors
prosecuting rather than the Police.
The Police submission did not
consider a special procedure was needed for contempt on the basis that it was
better to be consistent
and have a predictable process. It proposed that
the Crown prosecutor should prosecute in the High Court and the Police in the
District Court.
Some submitters saw the application of the criminal
justice protections that would result from a shift to prosecution as a
positive
outcome for those facing charges. An accused person would receive
proper details of the offence he or she was charged with and
have an opportunity
to seek legal advice and be represented in court. Some submitters were
concerned, however, about the potential
effect a conviction would have on a
person.
Finally, submitters noted there were practical and
resourcing implications in applying the criminal prosecution process
and
sentencing process to contempt. Submitters said the Crown or the Police would
need to be properly resourced if they were to
prosecute. The District Court
judges commented that proceedings would be prolonged by applying the
criminal prosecution and
sentencing processes and would, as a result,
involve greater application of judicial resources.
Recommended approach
7.39
7.40
We have decided not to recommend that all contempt be replaced by
ordinary statutory offences. In particular, and as
discussed in more
detail in chapter 3 and chapter 5, we are recommending, for the reasons
set out in those chapters,603 that disruptive behaviour in the
courtroom and non-compliance with a court order should continue to be
subject to a special
quasi-criminal procedure rather than be an ordinary
criminal offence prosecuted under the Criminal Procedure Act.
The
approach we recommend in relation to disrupting the courtroom addresses
concerns raised by submitters and recognises the
unique context
surrounding this type of contempt. The criminal justice protections outlined
in that chapter would be applied
as part of that process to ensure that the
disruptive person should have proper details of the offence he or she is
charged with,
and an opportunity to seek legal advice and be represented in
court.
603 See chapter 3 at [3.45]–[3.48] and chapter 5 at
[5.60]–[5.62].
Reforming the law of contempt of court: A modern statute 135
CHAPTER 7: Inherent jurisdiction, prosecutions and penalties
7.41
7.42
In respect of contempt involving non-compliance with a court order, we recommend in chapter
5 retaining a special quasi-criminal procedure (largely reflecting the
current position). Under that procedure the party in
whose favour the
order was made, or the Solicitor-General exercising Law Officer
functions, may apply to the courts for
an order that the person who has
breached the order be found to be in contempt of court for failing to comply
with the applicable
court order. Again, criminal justice protections would
apply as part of that process to ensure that the person has proper
details
and an opportunity to seek legal advice and be represented in court.
With
the exception of those two special cases, we recommend the other forms
of contempt covered by this Report be
replaced with new criminal
offences. Within this broad recommendation, a number of more detailed
issues have needed
to be considered and resolved:
(a)
(b)
(c)
Whether these new offences, when they involve behaviour directed
at the senior courts, should be removed from the District
Court to the
High Court. For example, where a publication interferes with a fair trial
in the High Court the prosecution
of the alleged offender would be heard
in the High Court not the District Court.
Whether the Solicitor-General,
rather than the Police, should be responsible for receiving complaints and
determining whether there
is sufficient evidence for laying a charge in
respect of any of the new offences. The alternative would be for the
Police to receive complaints, undertake its usual investigative role, assess
the evidence and then lay charges in the usual way.
Whether prosecution
of the new offences should always be undertaken as Crown
prosecutions handled by the Crown prosecutors.
Alternatively, the Police would
undertake some prosecutions of some of the new offences.
Should the new offences, when they involve behaviour directed at the Senior Courts, be heard by the High
Court?
7.43
7.44
7.45
Currently the District Court does not have power to deal with
certain contempts, such as disclosure of juror deliberations,
publication
contempt or scandalising the judiciary because it has no inherent
jurisdiction. Consequently, when these contempts
arise, even when they
relate to proceedings in the District Court, the High Court deals with
them. If a special case is
not made for the recommended new offences this
situation would effectively reverse and the District Court would not only
deal with contempt in the District Court, but would also hear and determine
cases relating to contempt in the High Court, Court
of Appeal and Supreme Court,
as well as other specialist courts.
We are concerned that this role
reversal might create the perception that the High Court does not retain
control over its
own processes during a trial. We consider it
essential that the High Court retains control over, and is able to enforce
compliance with its own processes. We therefore recommend that when the new
offence of publishing information poses a real
risk of prejudice to a fair
trial in the High Court and also when the juror offences relate to a High Court
jury trial, the prosecution
should be removed (transferred) to the High
Court. The District Court should determine charges in respect of offences
where they relate to jury trials in the District Court.
In
relation to the new offence of publishing false allegations or accusations
against a judge or the courts that risk undermining
confidence in the
judiciary, we recommend prosecutions should be transferred to and heard in the
High Court. As already discussed,
only the High Court currently has authority
under its jurisdiction to punish the contempt of scandalising, which this
offence
is to replace. The High Court’s authority also extends to
upholding the authority
136 Law Commission Report
7.46
of lower courts and tribunals. Subject to any qualification by statute or
statutory rule, the High Court has authority to punish
for contempt of another
court’s processes in order to enable that court to act effectively as a
court.604 We consider it important for the High Court to retain
this role in respect of protecting the independence, integrity and impartiality
of the courts and court processes, and the rule of law.
We have included
an express provision in schedule 2 to the draft Administration of
Justice
(Reform of Contempt of Court) Bill to address the transfer of proceedings to the High Court.605
The amendment provides that a new section (section 74A) will be inserted into the Criminal
Procedure Act covering transfer of cases to the High Court.
Should the Solicitor-General be responsible for deciding whether to
prosecute?
7.47
7.48
7.49
7.50
7.51
If Parliament accepts our proposals to enact these various new offences, it
will also be necessary to determine whether the Solicitor-General,
Crown
Prosecutors or the Police (or a combination of them) should have responsibility
for investigating and prosecuting the offences.
The Solicitor-General
currently has responsibility for deciding whether to prosecute and
commence proceedings for all the
forms of contempt we have recommended should
be replaced by new offences. Crown Law receives and assesses complaints,
makes
inquiries and then determines whether there is sufficient evidence
for commencing contempt proceedings at common law.
The issue is whether the
change to having criminal offences is more one of form than of
substance.
After discussing the issue with the Solicitor-General and
the Police, we have formed the view the Solicitor-General should be
responsible for receiving and investigating complaints and laying charges
for the new offence of publishing false accusations
undermining confidence in
the judiciary. The Police, however, should investigate and charge in the
usual way the new offence
in chapter 2 of publishing information that
poses a real risk of prejudice to a fair trial, and the two new
offences
recommended in chapter 4 relating to juror conduct. The Police
should also prosecute breaches of the new suppression
and take down order
offences recommended in chapters 2 and 6.
We have considered the
extent to which the Crown Law Office and the Crown Solicitors on behalf
of the Solicitor-General
are able to undertake the investigative inquiries
necessary to gather evidence for a criminal prosecution. While the
Solicitor-General
does not, for example, have any compulsory powers of
search, we believe that the Solicitor-General does have sufficient
powers to undertake any necessary investigation to assess the sufficiency
of the evidence in respect of the new offences
of publishing false accusations
undermining confidence in the judiciary. The nature of the offending conduct
means the evidential
material will mainly be in the public domain. The Police
will also be available to assist where compulsory powers of search
are
needed.606
More importantly, the Attorney-General
and Solicitor-General have constitutional responsibility for upholding
the
rule of law. This responsibility includes protecting the judiciary from
unfounded public attacks. See also chapter 6 at [6.87]
to [6.89] where we
discuss the
604 See discussion in chapter 1 at [1.15].
605 The alternative would be for the Protocols authorised under s 66 of the Criminal Procedure Act 2011 to cover the transfer. Section 66 provides that the Chief High Court Judge and the Chief District Court Judge must establish a protocol covering the level of trial court for certain offences. They may also specify other specific offences to be covered by the protocol. There is a process in ss 67 and 68 for deciding what level of court should apply in respect of those offences. Ultimately a High Court Judge must determine whether the trial of a protocol offence is to be held in the District Court or the High Court and make an order accordingly.
606 Clause 25(6) of the attached draft Administration of Justice (Reform
of Contempt of Court) Bill.
Reforming the law of contempt of court: A modern statute 137
CHAPTER 7: Inherent jurisdiction, prosecutions and penalties
7.52
7.53
7.54
reasons why the offence of publishing allegations undermining
confidence in the judiciary should be prosecuted by the
Solicitor-General.
The Solicitor-General currently has responsibility
for prosecuting the common law contempt of scandalising. Maintaining the
status
quo should impose no additional burdens (staffing or budgeting) on
Crown Law. On the other hand, shifting responsibility
for investigating
and prosecuting offences to the Police does impose burdens (both staff training
and budgetary) on it.
We have therefore recommended the Solicitor-General
should be responsible for investigating any complaint and laying charges for
the new offence of publishing allegations undermining confidence in the
judiciary. The Solicitor-General has agreed that this
is appropriate.
In
respect of the new publication offence, the new juror offences and also
the new breach of suppression order offences,
we accept that the
Solicitor-General and the Crown Law Office is not well placed to investigate
these. The lack of any compulsory
powers of search that the Police have for
gathering evidence by obtaining production orders, search warrants or seizing
material
would hinder their work. The better option is to refer complaints to
the Police for investigation in the ordinary way. The Police
currently
investigate and prosecute breaches of suppression orders. We recommend that
the Police investigate and charge these
new offences (as the Police proposed in
its submissions to us). We note that shifting responsibility for
investigating and prosecuting
in this area to the Police does impose burdens
(both staff training and budgetary) on the Police.
Should prosecutions be Crown prosecutions?
7.55
7.56
7.57
The Commission has considered whether prosecutions in respect of all of
the new offences should be undertaken as Crown prosecutions
handled by the
Crown Prosecutors rather than the Police Prosecution Service.
The Crown
Prosecution Regulations 2013 provide that certain proceedings will
automatically be Crown prosecutions for the
purposes of the Criminal
Procedure Act.607 The regulations also provide the
Solicitor-General may direct that, having regard to the particular
features of the proceedings,
a prosecution should be conducted as a Crown
prosecution.608 Under the regulations once a proceeding becomes
a Crown prosecution, the Solicitor-General assumes responsibility and a Crown
Prosecutor takes over the case.609
Given our earlier
recommendations that the Solicitor-General should be responsible for
initiating prosecutions and
laying charges for the new offence of publishing
false accusations undermining confidence in the judiciary, we recommend that
this offence be listed in the Schedule to the regulations so
prosecution is undertaken as a Crown prosecution.610 We
recommend that the offence of publishing information that poses a real
risk of prejudice to a fair trial should also
be listed in the
regulations and prosecutions undertaken as a Crown prosecution. We do not
consider it necessary to list the
new juror offences or the breach of
suppression or take down order offences. In relation to these offences,
the Solicitor-General
could direct under the regulations that the prosecution
be a Crown prosecution if, having regard
607 Regulation 4(1)(a)–(d).
608 Regulation 4(1)(e).
609 Regulation 5.
610 Under the regulations a proceeding that is transferred to the High Court, even if not listed in the Schedule, is also a Crown proceeding; see
Crown Prosecution Regulations 2013, reg 4(1)(d).
138 Law Commission Report
7.58
to the particular features of the proceeding, it is appropriate that it be
conducted as a Crown prosecution.611
The Commission has
consulted with both the Solicitor-General and the Police before settling
these recommendations.
SETTING PENALTIES
7.59
7.60
7.61
7.62
7.63
There is no agreed method for setting maximum penalties of offences in
New Zealand. The Legislation Advisory Committee Guidelines on Process and
Content of Legislation,612 which are a guide to making good
legislation, state that maximum penalties should not be disproportionally
severe, but should reflect
the worst case of offending covered by the
offence.613 The maximum penalty will also impact upon the
procedure that the courts will adopt, including whether the High Court can
hear
the case and whether the defendant has the right to elect trial by
jury.
In setting maximum penalty levels for the proposed new
offences in this Report, we note that the Supreme Court in
the first
Siemer case decided the maximum penalty allowed by the common law for
contempt must be less than that specified in section 24(e) of the
New Zealand
Bill of Rights Act 1990 (NZBORA), which guarantees a person charged with
an offence the right to a jury trial.614 As we have already
noted,615 at the time of the Court’s decision the right to a
jury trial was guaranteed when the penalty for an offence was a maximum
of more
than three months’ imprisonment, so the maximum sentence that could be
imposed for contempt was three months. In 2013,
section 24(e) of NZBORA was
amended to increase the penalty maximum after which a person is guaranteed
the right to a jury
trial to two years or more. A consequence of that change
has been the increase in the maximum term of imprisonment for contempt
to two
years. We have taken this into account in determining penalty levels for the
proposed new offences.
In Tables 1 and 2, we set out the new
offences616 and quasi-offences617 we have recommended.
We also set out our proposed maximum penalties and provide the rationale for
these levels in our discussion
below.
To assist in setting maximum
penalty levels for the proposed new offences, we considered some examples of
the maximum penalties
for similar current offences (Table 3) and
quasi-offences (Table 4).
In doing so, we are conscious of the
Legislation Advisory Committee Guidelines on Process and Content of
Legislation which state that references to similar offences must be
done with care. New Zealand has not adopted the inflation-adjusted
penalty
unit system found in many other jurisdictions and therefore when comparing
offences in different statutes, the penalties
may be unduly low simply because
of the age of the statute, and therefore not necessarily provide
an
accurate guide.618
611 Any juror offence transferred to the High Court will also be a Crown prosecution under reg 4(1)(d) of the Crown Prosecution Regulations 2013.
612 Since the disestablishment of the Legislation Advisory Committee, the Legislation Design and Advisory Committee is responsible for the LAC Guidelines on Process and Content of Legislation.
613 Legislation Advisory Committee “Legislation Advisory Committee Guidelines” (October 2014) <www.ldac.org.nz> at [21.6].
614 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767.
615 See chapter 5 at [5.30].
616 An offence is one prosecuted by the filing of a charging document in the District Court under s 14 of the Criminal Procedure Act 2011.
617 A “quasi-offence” as we have referred to it, is the continuation of the current hybrid offence used for contempt.
618 Legislation Advisory Committee, above n 613, at [21.6].
Reforming the law of contempt of court: A modern statute 139
CHAPTER 7: Inherent jurisdiction, prosecutions and penalties
7.64
7.65
7.66
In the examples of similar current offences and their penalties it is
difficult to find consistency of penalty. Given the underlying
policy rationale
for each of our recommended offences is to protect the administration of
justice and maintain public confidence
in the justice system, we have
started with the approach that there should be similar penalties for
each offence.
We have then, however, considered whether any are more or
less serious. In setting maximum penalties we have been particularly
influenced by the penalty levels recently set for the newly created offences
in the Harmful Digital Communications Act 2015 and
also those that apply for
breaches of suppression orders in section 211 of the Criminal Procedure
Act.
We consider the offence of publishing a false allegation or
accusation against the judiciary where there is a real
risk the
publication could undermine public confidence in the independence,
integrity or impartiality of the judiciary
is more serious than the other
new offences. We consider the seriousness of the offence is similar to the
new offence
of causing harm by posting digital communications
under section 22 of the Harmful Digital Communications
Act, which
carries a similar penalty as that recommended here. In view of the more serious
nature of this offence we have recommended
the maximum penalty for the offence
should be a term of imprisonment up to but not including two years or a
fine not exceeding
$50,000, or a fine not exceeding $100,000 for a
corporate defendant.
For the other new offences, for individuals, we
have set a maximum term of imprisonment not exceeding three or six months
and maximum fines not exceeding $10,000 or $25,000, depending on the
gravity of the offence. For the strict liability offences,
breaching
suppression and take down orders, the maximum penalty is limited to a fine.
For corporate defendants we have set a
fine not exceeding $100,000 and reduced
this to $40,000 for strict liability offences.
RECOMMENDATIONS
R59
R60
R61
The new Administration of Justice (Reform of Contempt of Court) Act should
not limit or affect any authority or power of the
High Court to punish any
person for contempt of court in any case to which the provisions in the new Act
do not apply. Section 9(a)
of the Crimes Act 1961 should be amended so that
the inherent jurisdiction of the High Court to punish for contempt is subject
to the Administration of Justice (Reform of Contempt of Court) Act.
In
any case to which the provisions in the new Administration of Justice
(Reform of Contempt of Court) Act applies the
jurisdiction of a court to punish
any person for contempt of court is replaced fully by the jurisdiction of the
courts under the
Act.
The new Administration of Justice (Reform of Contempt of Court) Act should abolish as part of the common law of New Zealand the following forms of contempt:
(a) (b) (c) (d) (e)
contempt in the face of the court;
publishing information that
interferes with a fair trial;
contempt by jurors;
contempt by
disobeying court orders; and scandalising the court.
R62
To address any doubt over the contempt powers of the Supreme Court and
the Court of Appeal a new provision should be enacted
to make it clear that
both appellate courts have the same authority over contempt as the High Court
has under its inherent jurisdiction.
140 Law Commission Report
R63
R64
The new offences recommended in chapter 2 (R7), chapter 4 (R18) and
(R24) and chapter 6 (R43) should, subject to the recommendations
in (R64) to
(R68) below, be prosecuted in the usual way in the District Court.
Where charges in respect of the following new offences relate to a trial in the High Court, the prosecution should be transferred to the High Court for trial:
(a) (b) (c)
publication of information that poses a real risk of prejudice to a fair
trial (R7), intentional investigation or research by
a juror into the case they
are hearing (R18); and disclosure of jury deliberations (R24).
R65
R66
R67
R68
All prosecutions for the new offence of publishing an untrue allegation or
accusation against a judge or a court where there
is a real risk that the
publication could undermine public confidence in the independence,
integrity or impartiality of the
judiciary or a court (R43) should be
transferred to the High Court for trial.
The Solicitor-General should be
responsible for receiving and investigating complaints and filing a
charging document for
the new offence of publishing an untrue
allegation or accusation against a judge or a court where there is a real
risk that the publication could undermine public confidence in the
independence, integrity or impartiality of the judiciary
or a court
(R43).
The Police should be responsible for receiving and
investigating complaints and laying charges for all the other new offences
recommended in this Report for inclusion in the new Administration of Justice
(Reform of Contempt of Court) Act.
The Crown Prosecution Regulations 2013 should be amended to include
the following offences in the Schedule:
(a) (b)
publication of information that poses a real risk of prejudice to a fair
trial (R7); and publication of an untrue allegation or
accusation against a
judge or a court where there
is a real risk that the publication
could undermine public confidence in the independence, integrity or
impartiality
of the judiciary or a court
(R43).
Reforming the law of contempt of court: A modern statute 141
CHAPTER 7: Inherent jurisdiction, prosecutions and penalties
TABLE 1: NEW OFFENCES RECOMMENDED IN REPORT
Chapter Offence Proposed maximum individual penalty
Proposed maximum corporate penalty
Chapter 2 It would be an offence to intentionally publish information that
is relevant to any trial where there is a real risk
that the publication of
that information prejudices a fair trial.
Chapter 2 It would be an offence to knowingly or recklessly publish
material in breach of the statutory prohibition, a suppression
order or a take
down order.
Chapter 2 It would be an offence to publish material in breach of the
statutory prohibition, a suppression order or a take down
order. [strict
liability]
Chapter 4 It would be an offence for a member of the jury constituted for a trial to intentionally investigate or research information when he or she knows
or ought reasonably to know that it is or may be information relevant to
the case.
Chapter 4 It would be an offence for any person, including a person who is
serving or has served on a jury, to intentionally disclose,
solicit or publish
details of a jury’s deliberations.
Chapter 6 It would be an offence to publish an untrue allegation or
accusation against a judge or the court where there is a real
risk that the
publication could undermine public confidence in the independence, integrity
or impartiality of the judiciary or
a court.
Chapter 6 It would be an offence to knowingly or recklessly breach a take
down order or other order made under R48.
Chapter 6 It would be an offence to breach a take down order or other order made under R48. [strict liability]
A term of imprisonment not exceeding 6 months or a fine not exceeding
$25,000.
A term of imprisonment not exceeding 6 months or a fine not
exceeding $25,000.
Fine not exceeding
$10,000.
A term of imprisonment not exceeding 3 months or a fine not exceeding
$10,000.
A term of imprisonment not exceeding 3 months or a fine not
exceeding $10,000.
A term of imprisonment of up to 2 years or a fine not
exceeding
$50,000.
A term of imprisonment not exceeding 6 months
or a fine not exceeding $25,000.
Fine not exceeding
$10,000.
Fine not exceeding
$100,000.
Fine not exceeding
$100,000.
Fine not exceeding
$40,000.
N/A
Fine not exceeding
$40,000.
Fine not exceeding
$100,000.
Fine not exceeding
$100,000.
Fine not exceeding
$40,000.
142 Law Commission Report
TABLE 2: NEW QUASI-OFFENCES RECOMMENDED IN REPORT
Chapter Quasi-offence Maximum individual penalty
Maximum corporate penalty
Chapter 3 Disruptive behaviour in the courtroom, including disrupting
proceedings or disobeying a court order in the course of proceedings.
Chapter 5 Breach of or failure to comply with an applicable court order.
Imprisonment not exceeding 3 months or a fine not exceeding
$10,000.
Imprisonment not exceeding 6 months or a fine not exceeding
$25,000.
N/A
Imprisonment not exceeding 6 months or a fine not
exceeding $25,000 may be imposed on director or officer.
TABLE 3: SOME EXAMPLES OF SIMILAR CURRENT OFFENCES AND THEIR
PENALTIES
Section Offence Maximum individual penalty
Maximum corporate penalty
s 211(1) Criminal
Procedure Act 2011
s 211(2) Criminal
Procedure Act 2011
The offence covers knowingly or recklessly publishing material in breach
of a suppression order.
The strict liability offence covers the
publishing of material in breach of a suppression order without lawful
excuse.
A term of imprisonment not exceeding 6 months.
A fine not
exceeding
$25,000.
Fine not exceeding
$100,000.
Fine not exceeding
$50,000.
s 32 Juries Act 1981 The offence covers failure to attend for service or serve when called upon.
Fine not exceeding
$1,000.
N/A
s 32A Juries Act
1981
s 32B Juries Act
1981
s 21 Harmful Digital
Communications
Act 2015
s 22 Harmful Digital
Communications
Act 2015
The offence covers employers who dismiss a person on jury
service.
The offence covers publication of information that identifies
a juror.
The offence covers failure to comply with an order made under the
Act.
The offence covers causing harm by posting digital communications.
Fine not exceeding
$10,000.
Term of imprisonment not exceeding 3 months and/or fine not
exceeding $10,000.
Term of imprisonment not exceeding 6 months or a fine
not exceeding $5,000.
Term of imprisonment not exceeding 2 years or a
fine not exceeding
$50,000.
Fine not exceeding
$10,000.
Fine not exceeding
$10,000.
Fine not exceeding
$20,000.
Fine not exceeding
$200,000.
Reforming the law of contempt of court: A modern statute 143
CHAPTER 7: Inherent jurisdiction, prosecutions and penalties
TABLE 4: SOME EXAMPLES OF QUASI-OFFENCES AND THEIR PENALTIES
Section Quasi-offence Maximum individual penalty
Maximum corporate penalty
s 212 District Court
Act 2016
s 165 Senior Courts
Act 2016
s 134 District Court
Act 2016
Disruptive behaviour in the courtroom, including disrupting proceedings
or disobeying a court order in the course of proceedings.
Disruptive
behaviour in the courtroom, including disrupting proceedings or disobeying a
court order in the course of proceedings.
Breach of or failure to
comply with a relevant court order.
A term of imprisonment not exceeding 3 months or a fine not exceeding
$1,000.
A term of imprisonment not exceeding 3 months or a fine not
exceeding $1,000.
A term of imprisonment not exceeding 3 months or a fine
not exceeding $1,000.
N/A
N/A
N/A
144 Law Commission Report
Part 2
THE BILL AND COMMENTARY
Administration of Justice (Reform of Contempt of Court) Bill
and commentary
Administration of Justice (Reform of Contempt of Court) Bill and
commentary
INTRODUCTION
8.1
8.2
8.3
This part of the Report contains a commentary on the individual
clauses of the draft Administration of Justice (Reform
of Contempt of
Court) Bill. The Bill is divided into the following parts:
.
Title and Commencement
. Part 1 –
Preliminary provisions
. Part 2 – Provisions to
promote and facilitate administration of justice
.
Subpart 1 – Limiting publication of trial-related
information
. Subpart 2 – Prohibiting
publication of certain criminal trial information
.
Subpart 3 – Dealing with disruptive behaviour relating to
court proceedings
. Subpart 4 – Provisions
relating to juries
. Subpart 5 – Enforcement of
certain court orders
. Subpart 6 – Prohibiting
publication of untrue allegations or accusations against Judges or
courts
. Part 3 – General provisions and
consequential amendments
. Schedule 1 –
Transitional, savings, and related provisions
.
Schedule 2 – Consequential amendments to other
enactments
The major policy decisions that underlie the provisions
in this Bill and the analysis of feedback received during the consultation
process are discussed in the previous chapters of the Report and are not
repeated in this commentary. Where relevant, the commentary
includes a
chapter and paragraph reference back to the text of the Report.
A
complete copy of the draft Administration of Justice (Reform of Contempt of
Court) Bill is included as Appendix 2 of this
Report.
146 Law Commission Report
TITLE AND COMMENCEMENT
Clause 1 – Title
1 Title
This Act is the Administration of Justice (Reform of Contempt of Court) Act
2017.
Commentary
The title identifies the scope of the Bill, which is to reform the law of
contempt of court with a focus on maintaining and promoting
the administration
of justice.
Clause 2 – Commencement
2 Commencement
This Act comes into force on the day after the date on which it receives the
Royal assent.
PART 1 – PRELIMINARY PROVISIONS
Clause 3 – Purposes and objectives
3 Purposes and objectives
(1)
The principal purposes of this Act are to—
(a) (b)
(c)
promote and facilitate the administration of justice and uphold the rule of
law; and maintain public confidence in the judicial
system; and
reform the
law of contempt of court.
(2)
To those ends, this Act enables courts to make certain orders and
impose certain sanctions in order to achieve the following
objectives:
(a) (b) (c)
(d)
(e)
civil and criminal court proceedings are heard and determined fairly
by independent and impartial Judges:
jury verdicts are based only on
facts admitted or proved by properly adduced evidence after free, frank, and
confidential jury discussions,
and the finality of verdicts will be
protected:
individual cases are heard and determined in a manner that
is expeditious, efficient, and consistent with the principles of
justice:
except in unusual circumstances, proceedings will be open to
the public and news media:
the independence, integrity, and impartiality
of the judiciary will be protected.
(3)
In reforming the law of contempt of court in New Zealand, this Act
abolishes the common law contempts of contempt in the face
of the court,
publishing information that interferes with a fair trial, contempt by jurors,
disobeying court orders, and scandalising
the court, while preserving the
inherent jurisdiction of the High Court to punish for contempt of court in
circumstances
where this Act does not apply.
Commentary
Clause 3 identifies the principal purposes and objectives of the Bill. It
confirms our intention to reform the law of contempt
of court for the
purposes of promoting and facilitating the administration of justice,
upholding the rule of law and maintaining
public confidence in the
judicial system. It also confirms our intention to abolish common law contempt
in circumstances where
the Bill applies, while
Reforming the law of contempt of court: A modern statute 147
Administration of Justice (Reform of Contempt of Court) Bill
and commentary
preserving the inherent jurisdiction of the High Court to punish contempt
of court in circumstances where the Bill does not apply.
Clause 3(2)(d) recognises that the starting point for considering
restrictions on publication is a presumption of open
justice. Existing
restrictions, which constitute unusual circumstances, include the suppression
provision in s 204 of the Criminal
Procedure Act 2011 protecting the
identity of child complainants and witnesses in criminal cases and s 438 of
the Children,
Young Persons, and Their Families Act 1989 prohibiting
publication of Youth Court proceedings.
Clause 4 – Interpretation
4 Interpretation
In this Act, unless the context otherwise requires,—
bailiff has the same meaning as in section 4 of the District Court
Act 2016
category, in relation to an offence, has the same meaning as in section 5 of the Criminal
Procedure Act 2011
charged, in relation to an offence, means charged with the offence by
a charging document filed under the Criminal Procedure Act 2011
constable has the same meaning as in section 4 of the Policing Act
2008
court means any of the following courts:
(a) (b) (c)
(d)
the District Court:
the High Court:
the Court of
Appeal:
the Supreme Court
judicial officer means a High Court Judge, a District Court Judge,
a Community Magistrate, or a Justice of the Peace
officer of the court means—
(a) (b)
(c)
a person who holds an office referred to in section 33 of the Senior Courts
Act 2016:
a person who is an officer of the court as defined in section 4
of the District Court Act
2016:
a person who is an officer of any other court to which this Act
is applied, if the person is an officer of the court within the meaning
of the
Act that constitutes that court
online content host, in relation to any information, means the person
who has control over the part of the electronic retrieval system, such as an
Internet site or an online application, on which the information is posted and
accessible by the user
person, in relation to a defendant or other party in any proceedings,
includes a body corporate
Police employee has the same meaning as in section 4 of the Policing
Act 2008
public prosecution has the same meaning as in section 5 of the
Criminal Procedure Act 2011
148 Law Commission Report
publish, except in subpart 1 of Part 2, includes—
(a)
(b) (c) (d) (e) (f)
(g)
insert in any newspaper or other periodical publication printed,
published, or distributed in New Zealand; or
send to any person, by
post or otherwise; or
deliver to any person or leave upon premises
occupied by any person; or broadcast within the meaning of the Broadcasting
Act 1989;
or
include in any film or video recording; or
disseminate
by means of the Internet or any other electronic, digital, or similar
medium; or
display by way of a sign, a notice, a poster, or other
means
triable by a jury means—
(a)
(b)
tried by a jury in accordance with sections 50 and 73 of the Criminal Procedure Act
2011; or
tried by a jury in accordance with section 74 of that
Act if no order is made under section 102 or 103 of that Act that the
person be
tried before a Judge without a jury.
Commentary
The definition of online content host is that used in section 4 of the Harmful Digital
Communications Act 2015. The definition is most relevant to subparts 2 and
6 of Part 2 of the Bill.
The general definition of publish in clause 4 applies to all provisions of the Bill except those in subpart
1 of Part 2. The definition is most relevant to subparts 2 and 6 of Part 2.
The definition is broad and includes all dissemination
or display of
information to any person. The intention is to minimise the potential for
legal argument over whether something
has been published.
Clause 7 of the Bill (below) provides that for the purposes of subpart 1 of
Part 2 of the Bill (which deals with limiting the publication
of trial-related
information) publication is to be interpreted as having the same
meaning as in section 195 of the Criminal Procedure Act 2011. The
definition of publish here in clause 4 does not apply to subpart 1 of
Part 2 for the reasons explained in the commentary on clause 7.
Clause 5 – Act binds the Crown
5 Act binds the Crown
This Act binds the Crown.
Commentary
Clause 5 confirms that all of the provisions in the Bill will bind the
Crown. It has been included to address the presumption
in section 27 of
the Interpretation Act 1999 that an Act binds the Crown only if it expressly
provides the Crown is bound.
Clause 6 – Transitional, savings, and related
provisions
6 Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1
have effect according to their terms.
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PART 2 – PROVISIONS TO PROMOTE AND FACILITATE
ADMINISTRATION OF JUSTICE
Subpart 1 – Limiting publication of trial-related information
Clause 7 – Interpretation
7 Interpretation
In this subpart, unless the context otherwise requires, publication has the same meaning as in section
195 of the Criminal Procedure Act 2011.
Commentary
Clause 7 provides that for the purposes of subpart 1 of Part 2 of the Bill
(which deals with limiting the publication of trial-related
information)
publication is to be interpreted as having the same meaning as in section
195 of the Criminal Procedure Act 2011. Section 195 describes
the context
in which publication will breach a suppression provision or suppression
order made under subpart 3 of Part 5 of the Criminal Procedure Act. It
provides
that publication means publication in the context of any
report or account relating to the proceeding in respect of which the
suppression
provision or order applies. The explanatory note to the Criminal
Procedure (Reform and Modernisation) Bill619 noted that the
provision, adopting a Law Commission recommendation,620 was not
intended to be a definition of the terms publication or publish,
as it was considered preferable that the meaning of these terms continue
to be developed at common law rather than specified
in the legislation.
Instead section 195 is designed to clarify that publication is not
prohibited in any context that is unrelated
to a report or account of the
proceedings. In its report Suppressing Names and Evidence the
Commission said it was preferable to avoid a statutory definition of
“publication” and to leave it to the courts
to make decisions on a
case by case basis, taking a robust approach to the meaning of publication in
situations which are clearly
not intended to be captured by the Act.621
For consistency, publication in subpart 1 of Part 2 of the Bill
ought to be interpreted in the same way.
Clause 8 – Automatic suppression of details of previous convictions
and concurrent charges
8 Automatic suppression of details of previous convictions and concurrent
charges
(1)
If a person (the arrested person) is arrested for an offence and may be triable by a jury if charged with that offence (offence A), no person may publish details of the following except as permitted by or under this section:
(a) (b)
any of the arrested person’s previous convictions for any
offence:
any other offence that is a category 3 or 4 offence, if the
arrested person is—
(i) (ii)
already charged with that other offence when arrested for offence A;
or
charged with that other offence at the same time as the person is
charged with offence
A; or
(2)
(iii) charged with that other offence at any subsequent time while
the person remains charged with offence A.
A prohibition imposed by
subsection (1) applies until the start of the trial for offence A, unless
a different period applies under subsection
(3)(b).
619 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) (explanatory note) at 56.
620 Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [7.17].
621 At [7.18].
150 Law Commission Report
(3)
If the arrested person is charged with offence A, the pre-trial court or trial court (as the case may be)—
(a) (b)
must keep the prohibition under review:
may, by order made on
application or on its own initiative,—
(i) (ii)
lift the prohibition before the trial:
extend the prohibition for
a period that ends after the start of the trial:
(4) (5)
(iii) vary the effect of the prohibition by permitting the
publication of any details as specified in the order.
In addition, the
court may order that an online content host take down, or disable public
access to, any specific details referred
to in subsection (1) that the
host has made accessible to members of the public.
The prohibition ceases
to apply if—
(a) (b) (c)
(d)
the court makes an order to that effect under subsection (3)(b)(i);
or the arrested person ceases to be subject to arrest for offence A; or
the
charge against the arrested person for offence A is withdrawn, dismissed,
stayed, or otherwise disposed of; or
the arrested person does not elect
trial by jury or the court orders that the trial for offence A
is to be a Judge-alone trial.
(6)
The prohibition does not prevent the disclosure of any details referred to
in subsection (1) if the disclosure is made to or by any of the
following persons for the purpose of any proposed proceedings against
the arrested person for offence A:
(a) (b) (c)
(d)
the Solicitor-General:
a Police employee:
any person who
is conducting or proposing to conduct a public prosecution against the
arrested person for offence A:
a lawyer acting for the arrested
person.
Commentary
Clause 8 enacts a prohibition on
the publication or reporting of an accused person’s previous
convictions and
any serious concurrent charges during the
specified period. The automatic suppression on publication of this
information will begin when the accused person is arrested and continue,
unless varied by a court, until the beginning
of the trial. At that point the
trial court must review the position and may by order lift, extend or vary the
prohibition. Automatic
suppression under clause 8 applies only where the accused
person is arrested for an offence for which he or she is liable to be
tried by
a jury. Although the provision is new, under existing law it is normally
contempt of court for anyone to publish
previous convictions in these
circumstances. Further, the courts, using their inherent powers, are
currently able to make
suppression orders prohibiting publication of this
information where they consider the information prejudicial to any subsequent
trial.
Under Clause 8(5)(d) the prohibition ceases if the arrested
person does not elect trial by jury. The arrested person would
usually
make his or her election at the same time as he or she enters a plea (around
the time of his or her second appearance),
although section 51 of the
Criminal Procedure Act 2011 allows the person to elect a jury trial up
until a judge-alone trial
commences in certain
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circumstances. The pre-trial court could, in such cases, use its powers
under clause 8(3)(b) to ensure the application of the
prohibition is
clear.
As with clause 9 below, publish is used in a forward-looking sense
and, in the absence of a take down order made under clause 9(2) of the
Bill, earlier
or historical material that was lawful at the time of
publication would not breach this provision. Hyperlinking to historical
material containing the information specified in clause 8(1) would, however,
breach this provision.
Clause 9 – Court may suppress specific trial-related information
temporarily
9 Court may suppress specific trial-related information
temporarily
(1)
If a court is satisfied that it appears to be necessary for avoiding a
real risk of prejudice to the administration of justice
in any criminal
trial, or any part of the trial, the court may order that the publication of any
of the following information be
postponed for any period that the court thinks
necessary for that purpose:
(a)
(b)
any specific information relating to matters of character of any person
who is accused of or charged with an offence:
any specific information
relating to the previous convictions or matters of character of any person
who—
(i) (ii)
may be called as a witness; or
may be a victim of the offence;
or
(c)
(iii) is connected with the person who is accused of or charged with the
offence:
any other specific information relating to any trial.
(2) (3) (4)
(5) (6)
In addition, the court may order that an online content host take down,
or disable public access to, any specific information
referred to in
subsection (1) that the host has made accessible to members of the
public.
Despite subsection (1), the court may make an
interim order of any kind described in subsection (1) or (2) if
the person arrested for the offence advances an arguable case that
publication would be likely to create a real risk of
prejudice to a fair
trial.
An interim order under subsection (3) may be made or
renewed only in the absence of an order under subsection (1) or (2) and
expires at the person’s next court appearance for the offence, and may be
renewed only if the court is satisfied that publication
would be likely to
create a real risk of prejudice to a fair trial.
The court may make an
order under this section at any time after the person is arrested for an
offence and before the completion
of all proceedings relating to the
offence.
If the District Court is presided over by 1 or more Justices,
or 1 or more Community Magistrates, the court has the same power to
make orders
under this section as it has under section 362 of the Criminal Procedure Act
2011 to make suppression orders under
subpart 3 of Part 5 of that Act.
Commentary
Clause 9 provides for temporary suppression orders to protect fair
trial rights. Sub-clause (1) is intended to be
forward-looking, allowing
the court to prohibit all future publication of certain information for a
temporary period. Sub-clause
(1) is limited to material published
contemporaneously with the present proceeding. Material published prior to the
present proceedings,
which was lawfully published at the time, would not
be affected unless a take down order was made under
sub-
152 Law Commission Report
clause (2). An order under sub-clause (1) would however prohibit
deliberate hyperlinking to earlier or historical reports
that contained
information of the type specified in that section. Sub-clause (2) is broader,
and allows the court to order an
online content host to remove information
published before proceedings where that information remains publicly available.
As discussed
in our Report, the advent of digital media allows potentially
prejudicial material to remain accessible to an unprecedented
degree.
The same risks are not posed by, for example, archived print newspapers.
Although the provision is new, under existing law the courts, using
their inherent authority and implied powers, are able
to make suppression
orders prohibiting publication of this information where they consider the
information prejudicial to any
subsequent trial. A consequence of the power
to make suppression orders being statutory is that it will be an offence to
breach
such an order.
Clause 10 – Duration of suppression order and right of
review
10 Duration of suppression order and right of review
(1)
An order under section 9(1)—
(a) (b) (c)
may be made for a limited period ending on a date specified in the order; and
may be renewed for a further period or periods by the
court; and
expires at
the completion of all proceedings relating to the offence, unless it expires
at an earlier time in accordance with
an order of the court or by operation of
law.
(2)
The order may be reviewed and varied by the court at any time.
Commentary
Clause 10(1)(a) provides that orders made under clause 9 are temporary
and will last for only a short and clearly defined term.
Suppression orders
are a justified limitation on the right to freedom of expression and the
principle of open justice
because they are necessary to protect the fair
trial rights of a defendant. It is accepted that the right to a fair trial may
in some cases override the right to freedom of expression and the principle
of open justice, but any such limitation must be no
more than reasonably
necessary. Clear rules, setting out the duration of orders, protect the
right to freedom of expression,
and provide clarity for the media. Sub-clauses
(1)(b) and (2) provide flexibility to the courts and allow for the adjustment
of
orders, whether to extend, vary or remove them as appropriate.
Sub-clause (1)(c) clarifies that all orders, unless they expire
earlier, will
expire at the completion of all proceedings relating to the offence. Upon
the completion of all proceedings there
is no longer any justification for
continued suppression on the grounds of protecting the right to a fair trial.
The court may
decide that there are legitimate grounds for permanently
suppressing some information covered by one of these temporary suppression
orders, but would have no jurisdiction to make such an order under the Bill.
The court may have jurisdiction to make permanent
suppression orders under
other statutory provisions (such as those in the Criminal Procedure Act 2011)
or under inherent authority
or implied powers.
Clause 11 – Publication by or at request of Police, etc
11 Publication by or at request of Police, etc
(1)
(2)
Nothing in this subpart prevents publication by or at the request of any
Police employee of the name, address, or occupation of
any person who has
escaped from lawful custody or has failed to attend any court when lawfully
required to do so if that publication
is made for the purpose of facilitating
that person’s recapture or arrest.
Nothing in this subpart
prevents publication of the name, address, or occupation of any person, or any
details of the offences charged,
to—
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(a) (b)
(c)
any person assisting with the administration of the sentence imposed on the
person or with the rehabilitation of the person; or
any Police employee,
or any officer or employee of the Department of Corrections or of the Ministry
of Justice, who requires the
information for the purposes of his or her
official duties; or
any person who is conducting or proposing to
conduct a public prosecution against the person for an offence, and who
requires
the information for the purposes of—
(i) (ii)
deciding whether to commence proceedings; or conducting that public
prosecution.
Commentary
Clause 11 addresses concerns that automatic suppression orders may
hinder the conduct of Police business, for example when
seeking
information from the public in relation to offending or when seeking to
apprehend a suspect at large. This clause
clarifies that the suppression
regime established in this subpart is not intended to interfere with Police
business. The clause
is similar to section 209 of the Criminal Procedure Act
2011 so maintains consistency with that regime.
Clause 12 – Standing of members of media
12 Standing of members of media
(1)
This section applies to—
(a)
a person who is reporting on the proceedings and who is either subject to or
employed by an organisation that is subject to—
(i) (ii)
a code of ethics; and
the complaints procedures of the
Broadcasting Standards Authority or the Press
Council; and
(b)
any other person reporting on the proceedings with the permission of the
court.
(2)
A person to whom this section applies has standing to initiate, and be
heard in relation to, any application for an order under
section 8 or
9, and any application to renew, vary, or revoke the order.
Commentary
Clause 12 reflects and affirms the status quo in relation to the media’s standing to challenge or be heard in relation to suppression or take down orders (see: Criminal Procedure Act 2011, section
283(2)(c)). The media are a special case and have a special interest in
being heard on such matters. This interest arises from
their role as surrogates
for the public, providing information and commentary in furtherance of the
public interest. While the
power to make suppression orders is a
justified limitation on the right to freedom of expression and an exception
to
the principle that the work of the courts is to take place in public,
it is essential that the media have standing to
challenge or be heard in
relation to such orders. This approach also maintains consistency with the
regime set out in the Criminal
Procedure Act 2011.
Clause 12(1)(a)(ii) lists two existing complaint bodies. The Online Media
Standards Authority (OMSA), which was set up in 2013
to consider
complaints about news and current affairs content of
broadcasters’ websites, has been disbanded.
The OMSA’s
jurisdiction over online publications was transferred to the New Zealand Press
Council on 1 January 2017.
154 Law Commission Report
Clause 13 – Offences relating to breach of this subpart
13 Offences relating to breach of this subpart
(1)
A person commits an offence if the person knowingly or
recklessly—
(a)
(b)
fails to comply with section 8(1); or
fails to comply with an
order made under section 8 or 9.
(2)
A person commits an offence if the person—
(a)
(b)
fails to comply with section 8(1); or
fails to comply with an
order made under section 8 or 9.
(3)
(4)
Subsection (2) does not apply to a person who hosts material
on Internet sites or other electronic retrieval systems that can be accessed
by a user unless the specific information has been placed or entered on the
site or system by that person.
A person who commits an offence against
subsection (1) is liable on conviction,—
(a)
(b)
in the case of an individual, to a term of imprisonment not exceeding 6
months or a fine not exceeding $25,000:
in the case of a body corporate,
to a fine not exceeding $100,000.
(5)
A person who commits an offence against subsection (2) is liable on
conviction,—
(a)
(b)
in the case of an individual, to a fine not exceeding $10,000:
in the
case of a body corporate, to a fine not exceeding $40,000.
(6)
In a prosecution for an offence against subsection (2), it is not
necessary for the prosecution to prove that the defendant intended to commit an
offence.
Commentary
Clause 13 creates an offence of failing to comply with automatic
suppression under clause 8 or a suppression or take down order
under clause
9. The clause, modelled on section 211 of the Criminal Procedure Act 2011,
provides that it is a more serious
offence to commit a breach knowingly
or recklessly. Sub-clause (2) further provides a strict liability offence
where there
is an absence of the mental element of intention. The penalty
levels for the offence are also consistent with those under
the Criminal
Procedure Act. The defence in sub-clause (3) applies only in respect of the
offence in sub-clause (2). A person
who hosts material on internet sites or
other electronic retrieval systems and who has knowledge of the presence of the
offending
material and fails to remove it could be charged with the offence in
sub-clause (1). The defence in sub-clause (3) would not be
available.
Subpart 2 – Prohibiting publication of certain criminal trial
information
Clause 14 – Offence to publish certain criminal trial
information
14 Offence to publish certain criminal trial information
(1)
This section applies if a person (the arrested person) is
arrested for an offence and may be triable by a jury if charged with that
offence, and—
(a)
(b)
applies until the completion of all proceedings relating to the jury
trial (including pre-trial proceedings); and
ceases to apply if the
charge is dealt with or disposed of otherwise than by a jury trial.
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(2)
A person commits an offence if—
(a)
(b)
the person at any time intentionally publishes any information that is
relevant to any trial to which this section applies; and
there is a
real risk that the publication could prejudice the arrested person’s
right to a fair trial.
(3)
A person who commits an offence against subsection (2) is liable
on conviction,—
(a)
(b)
in the case of an individual, to imprisonment for a term not exceeding 6
months or a fine not exceeding $25,000; or
in the case of a body
corporate, to a fine not exceeding $100,000.
(4)
A person has a defence in a prosecution for an offence against
subsection (2) if the person proves that,—
(a) (b)
(c) (d)
at the time of the publication of the information and after taking all
reasonable care, the person was unaware of, and had no reason
to be aware of,
the arrested person’s arrest, any pre-trial proceedings, or the
possibility or existence of the trial;
or
as the online host or
distributor of the publication, after taking all reasonable care, the
person did not know and had
no reason to suspect that it contained
information that created a real risk of prejudicing the arrested person’s
right
to a fair trial; or
the publication was in good faith made as a
contribution to, or part of, a discussion of public affairs or matters of
general public
interest; or
the publication was a fair and accurate
report of court proceedings held in public and published
contemporaneously and
in good faith.
Commentary
Clause 14
creates a new offence as a statutory replacement for the current strict
liability publication contempt as it applies
to a fair jury trial. Clause
29(4)(b) of the Bill abolishes the common law contempt. Clause 14(2)
contains the current
“real risk” strict liability test that applies
at common law. As is currently the case, the mental element of intention
applies only to the action of publication and there is no requirement for the
prosecution to prove any intention to prejudice
the trial. Clause 15 provides
for how the court determines whether a publication creates a real risk of
prejudice to a trial.
Sub-clause (1) identifies the scope of the
offence provision and limits its application to situations where an accused
person
is liable to be tried by a jury. The scope of clause 14 has
intentionally been restricted to criminal jury trials for the reasons
discussed in chapter 2 of the Report. This reflects the common law
approach that the effectiveness of judicial independence
means there is no
“real risk” of the media influencing a judge sitting alone.
The offence in clause 14 in
not intended to cover publications that affect
the wider justice process by interfering with access to the courts or
undermining public confidence in the courts. Such cases are very rare and
could continue to be addressed and determined
by the High Court under its
inherent jurisdiction, which is preserved by clause 29(2) of the
Bill.
Any person who is involved in or contributes to the publication
will be liable to prosecution under clause 14. This is currently
the position
at common law. In the case of a news media publication, the editor and the
reporter who wrote the article as
well as the media company may be
prosecuted. The broad definition of publish in clause 4 and the scope of the
offence are intended
to catch every person who contributes to a publication and
not just the media company. Whether or not any person involved in the
publication should be charged and prosecuted would be assessed on a case by
case basis under the Solicitor-General’s prosecution
guidelines. Under
these guidelines the decision to
156 Law Commission Report
prosecute depends on the sufficiency of evidence against that person and
consideration of whether in the particular circumstances
of the case a
prosecution would be in the public interest.
Sub-clause (4) includes a number of specific defences that will be
available to the person charged with an offence under the
clause.
Sub-clause (4)(b) is included to cover situations where an online content
host or distributor of information inadvertently makes public information
that creates a real risk of interference with an accused
person’s right
to a fair trial. The defence is necessary because the definition of publish
in clause 4 is broad and catches an online content host or
distributor.
Clause 15 – How court determines whether publication creates real
risk of prejudice to right to fair trial
15 How court determines whether publication creates real risk of
prejudice to right to fair trial
(1)
In determining whether, for the purpose of section 14(2)(b), a
publication creates a real risk of prejudice to an arrested person’s
right to a fair trial, the court must consider the
following:
(a) (b) (c)
(d) (e)
the likely effect of the publication as a whole:
the persons or
groups of persons to whom the publication is likely to be made
available:
the medium in which the publication is presented and
its potential accessibility and durability:
the character of the
publication, including the language and tone used in it:
any other
relevant circumstances relating to the likely effect of the
publication.
(2)
The court may (without limitation) treat the inclusion in a publication of
any of the following information as creating a real
risk of prejudicing the
arrested person’s right to a fair trial:
(a)
(b) (c)
(d) (e)
information indicating that the arrested person is of bad character,
including previous misconduct, criminal or gang affiliations,
or criticism of
the arrested person’s personality or previous charges or
acquittals:
information indicating that the arrested person has
confessed to the charge, or any component of it, or to conduct
that may
result in charges being laid against the person:
information commenting
on the credibility of the arrested person or any witnesses:
information
given at trial in the jury’s absence or information that has
been ruled inadmissible at trial:
photographs, pictorial information,
or other information that reveals the identity of the arrested person where
the identity
of the person is, or is likely to be, in issue at
trial.
Commentary
Clause 15 provides direction on how the
court will determine whether a publication creates a real risk of prejudice to a
right to
a fair jury trial. Drawing on case law the clause requires the court to
consider the nature of the information that has been
published and its
potential impact when determining whether a real risk of prejudice was
created. Sub-clause (1) addresses
the circumstances and impact of
publication. Sub-clause (2) contains an indicative (but not exhaustive) list of
information that
when included in a publication may be considered by the
court to pose a real risk of interference with the right to a fair trial.
Sub-clause (2) is intended also to assist the public and the media when trying
to assess whether there is likely to be a risk if
they were to publish certain
types of information.
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Subpart 3 – Dealing with disruptive behaviour relating to court
proceedings
Clause 16 – Judicial officer may cite person for disruptive
behaviour
16 Judicial officer may cite person for disruptive behaviour
(1)
This section applies if a judicial officer believes that any person
is—
(a) (b)
wilfully disrupting the proceedings of a court; or
wilfully and
without lawful excuse disobeying any order or direction of the court in
the course of the hearing of any proceedings.
(2) (3) (4)
The judicial officer may cite the person for disruptive behaviour and
order that the person be taken into custody and detained
until the court
rises for the day.
Any constable or officer of the court, with or without
the assistance of any other person, may take the person into custody in
accordance
with the order.
Any person taken into custody under this
section must be dealt with in accordance with the procedure in section
17, which applies for the purpose of this subpart.
Commentary
Clause 16 provides for the court to respond immediately to disruptive
behaviour by removing and detaining for the remainder
of the day the person
responsible. This power is essential to ensure that court business is not
delayed. Sub-clause (4) ensures
however that the procedure for dealing with the
person considered to be disruptive is separated in time from the behaviour
giving
rise to the citation. The sub-clause implements the policy that
disruptive behaviour should be dealt with through a three- step
process, as
outlined at in chapter 3 of our Report. Where a trial is ongoing and the
disruptive behaviour is continuing,
clause 16 is to be read alongside clause 28
to allow the court to exercise the power to remove and detain the person daily
or as
required.
Schedule 2 contains consequential amendments that the Bill will make to the District Court Act 2016, the Employment Relations Act 2000, the Family Court Act 1980, the Resource Management Act
1991, the Senior Courts Act 2016 and the Te Ture Whenua Maori Act 1993. The effect of these amendments is to repeal and replace the ‘contempt in the face of the court provisions’ currently governing disruptive behaviour in the Supreme Court, the Court of Appeal, the High Court, the District Court, the Employment Court and Authority, the Family Court, the Environment Court, the Māori Land Court, and the Māori Appellate Court (modified to the extent necessary) with clause 16
and the other clauses in subpart 3 of Part 2 of the Bill.
Clause 17 – Procedure for dealing with person cited for
disruptive behaviour
17 Procedure for dealing with person cited for disruptive
behaviour
(1)
While being held in custody, a person cited for disruptive behaviour must be given a reasonable opportunity to—
(a) (b)
obtain legal representation; and apologise to the court.
(2)
(3)
Before the close of the day on which the person is cited and ordered to
be detained, a Judge must review the matter and, if the
Judge considers that
further punishment may be necessary, adjourn any hearing and set the matter
down for determination on a
later date within the next 7 days.
The Bail
Act 2000 applies, with the necessary modifications, as if the person cited
were charged with an offence that carries the
penalties specified in
subsection (5)(b).
158 Law Commission Report
(4)
If the Judge sets down the matter for determination, he or
she—
(a) (b)
(c)
must consider whether there are exceptional circumstances that warrant a
different Judge hearing the matter; and
must provide a written
statement to the person cited that specifies the behaviour that he or she
believes may cause the person to
have committed disruptive behaviour and to be
liable for further punishment; and
may receive any explanation he or she
considers helpful to ensure that the case proceeds on a reliable factual
platform.
(5)
On finding a person guilty of doing anything described in section
16(1)(a) or (b), a Judge—
(a)
(b)
must not convict the person; but
may—
(i)
(ii)
issue a warrant committing the person to imprisonment for a term not
exceeding 3 months; or
impose on the person a fine not exceeding
$10,000.
Commentary
Clause 17 addresses steps two and three of our three-step approach
to dealing with disruptive behaviour in court, as set
out in chapter 3 of
our Report. Sub-clauses (1)‒(4) deal with the hearing to determine whether
the person was guilty, and
sub-clause (5) deals with punishment. The procedure
set out in sub-clauses (1)‒(4) separates in time the offending and the
hearing. The procedure here is intended to reflect the standards set in
McAllister v Solicitor-General and discussed at [3.30]‒[3.32] in
chapter 3 of our Report.
Clause 18 – Further provisions applying for purpose of this
subpart
18 Further provisions applying for purpose of this subpart
(1)
(2) (3)
The Sentencing Act 2002 and subpart 5 of Part 6 of the Criminal Procedure
Act 2011 (appeals against finding of or sentence for
contempt of court) apply
to any action taken under section
17(5) as if the finding
were a conviction for an offence and any imprisonment or fine were a
sentence.
A warrant for the committal of any person to prison under
section 17(5) must be directed to a bailiff or constable, who may take
the person into custody, and every constable has a duty to assist in the
execution of the orders or warrants issued under that provision.
Any
person committed to prison by any court under section 17(5) must
be committed to a prison established under or deemed to be established under
the Corrections Act 2004, and the prison manager
of the prison mentioned in
the order or warrant is bound to receive and keep the person until the person is
lawfully discharged.
Commentary
Clause 18 provides that disruptive behaviour in the courtroom should be
treated similarly to other offending, notwithstanding
that a finding of
disruptive behaviour does not result in a conviction. The same rights and
procedures in relation to appeals,
sentencing and detention should apply to
those found guilty.
Reforming the law of contempt of court: A modern statute 159
Administration of Justice (Reform of Contempt of Court) Bill
and commentary
Subpart 4 – Provisions relating to juries
Clause 19 – Offence for jury member to investigate or research
case
19 Offence for jury member to investigate or research case
(1)
A person commits an offence if the person is a member of a jury constituted
for a case and—
(a)
(b)
during the trial period the person intentionally investigates or
researches information relevant to the case; and
does so when the
person knows or ought reasonably to know it is or may be information
relevant to the case.
(2) (3) (4)
It is not an offence against subsection (1) if the investigation
or research is undertaken with the permission, or at the direction, of the
trial Judge.
A person who commits an offence against subsection (1)
is liable on conviction to imprisonment for a term not exceeding 3 months
or a fine not exceeding $10,000.
In this
section,—
information relevant to the case means information
about any of the following:
(a) (b) (c) (d) (e)
(f)
the defendant:
any other person involved in the events which are the
subject of the case:
any person involved in the trial, including a
witness:
the events that are the subject of the case:
the law
relating to the case:
the law of evidence
investigate or research includes—
(a)
(b) (c) (d) (e)
ask a question or have a discussion (by any means) with a person who is not
a jury member or the trial Judge:
search any information source,
including the Internet:
visit or inspect a place or an
object:
conduct an experiment:
ask another person to perform any
of the actions listed above
trial period means the period that—
(a) (b)
begins when a jury has been constituted under section 19 of the Juries Act
1981; and
ends when the jury is discharged or, in the case of an
individual jury member who is discharged during the trial, the
member is
discharged.
Commentary
Clause 19 is intended to assist
judges and juries by clarifying the law of juror contempt. It provides clear
guidance to jurors
regarding what conduct is or is not appropriate. As noted
in our Report, this clause also reflects similar offences enacted in
other
jurisdictions.
160 Law Commission Report
Clause 20 – Offence to disclose jury deliberations
20 Offence to disclose jury deliberations
(1)
(2)
A person commits an offence if the person intentionally discloses, solicits,
or obtains information about statements made, opinions
expressed, arguments
advanced, or votes cast by members of a jury in the course of their
deliberations in proceedings before
a court.
It is not an offence
against subsection (1) if, during a trial, the information—
(a)
(b)
is sought by, or disclosed to, the court in the course of the
performance of the jury’s functions; or
is disclosed to the
trial Judge in a complaint or allegation of misconduct by a juror or is
disclosed for the purpose of investigating
whether an offence has been
committed.
(3)
It is not an offence against subsection (1) if the information is
sought or disclosed—
(a)
(b)
by a current or former jury member in discussions with a health
practitioner who is treating him or her in relation to issues
arising out of
his or her jury service; or
during or after the trial with the
permission of the presiding Judge or the relevant head of bench, including
for the purpose
of conducting research about juries or jury service.
(4)
A person who commits an offence against subsection (1) is liable
on conviction to,—
(a)
(b)
in the case of an individual, imprisonment for a term not exceeding 3 months
or a fine not exceeding $10,000:
in the case of a body corporate, a fine
not exceeding $40,000.
(5)
In this section, health practitioner has the same meaning as in section 5 of the Health
Practitioners Competence Assurance Act 2003.
Commentary
As with clause 19, this clause is intended to provide clarity and guidance
to both judges and jurors. The offence is intended to
safeguard the
confidentiality of jurors, which is conducive to free and frank deliberation,
preserves the finality of verdicts and
protects an individual juror’s
privacy.
Sub-clause (1) provides that it is an offence to disclose jury
deliberations, with exceptions in sub- clauses (2) and (3)
and also below in
clause 21. The policy here is that there should be certain narrow exceptions,
allowing disclosure to certain
people and in certain circumstances.
Sub-clause (2) ensures that during the course of a trial, jurors can
disclose information to and raise concerns about misconduct
with the trial
judge, and disclose information to the judge in the course of the performance
of the jury’s functions.
Sub-clause (3)(a) ensures that both during or after a trial, a juror will
be able to disclose information to a health practitioner
who is treating him
or her in relation to issues arising out of his or her jury service. The
exception in sub-clause (3)(b)
allows for disclosure, during or after a trial,
of information for the purpose of authorised research into juries or jury
service
with the permission of the presiding Judge or the head of bench.
Clause 21 – Limited disclosure of jury deliberations permitted after
jury discharged
21 Limited disclosure of jury deliberations permitted after jury
discharged
(1)
This section applies in relation to a jury trial if the trial has
been completed and the jury discharged.
Reforming the law of contempt of court: A modern statute 161
Administration of Justice (Reform of Contempt of Court) Bill
and commentary
(2)
(3)
A person who has reason to believe that an offence against section
19 or 20 may have been committed in relation to the jury trial, or that
the conduct of any juror in the trial may provide grounds for
a direction
that a new trial be held or grounds for an appeal, may refer the matter to any
person referred to in subsection (3).
The persons concerned
are—
(a) (b) (c)
(d)
the Solicitor-General:
a Police employee:
the prosecutor in
the completed trial or any person who is conducting or proposing to
conduct a public prosecution against
a person for the offence:
a lawyer
acting for the offender.
(4) (5)
The person who refers the matter may disclose to the recipient
information about statements made, opinions expressed, arguments
advanced, or
votes cast by members of a jury in the course of their deliberations.
A
recipient of information under subsection (4) may disclose the
information to any other person only so far as is necessary to enable the
Police to investigate whether an
offence has been committed and to consider
whether the offender should be prosecuted.
Commentary
Clause 21 provides a narrow exception to the offence in clause 20,
permitting jurors to disclose information in certain
circumstances and to
certain people after the jury has been discharged. All of the people to
whom disclosure is permitted
are individuals who bear a responsibility to
uphold the administration of justice, and will accordingly be under a
professional
and ethical obligation to respond to the disclosure
appropriately. This may require them in turn to report or act upon
the
disclosure, and sub-clause (5) confirms that they would not commit an
offence by doing so. This is consistent with
section 76 of the Evidence Act
2006, which envisages a departure from the general rule that evidence relating
to jury deliberations
is inadmissible, in exceptional circumstances and where
it is in the public interest.
Subpart 5 – Enforcement of certain court orders
Clause 22 – Certain court orders and undertakings may be
enforced
22 Certain court orders and undertakings may be enforced
(1)
This section applies to—
(a)
(b)
any interim or final order, decision, decree, direction, or judgment
of a court (a court order) to do or abstain from doing something,
except a court order to pay a sum of money or for the recovery of
land:
any undertaking given to the court if, on the faith of the
undertaking, the court has sanctioned a particular course of
action or
inaction.
(2)
(3)
A court may enforce the court order or undertaking against a person by
taking action provided for in subsection (3) on application by the
party who sought the order or undertaking being enforced, or on
application by the Solicitor-General.
The court may—
(a)
either—
162 Law Commission Report
(i)
(ii)
issue a warrant committing the person or a director or an officer of the
body corporate, as the case may be, to a term of imprisonment
not exceeding 6
months; or
impose on the person a fine not exceeding $25,000;
and
(b)
if the court concerned is the High Court, make a sequestration order in
accordance with the rules of court.
(4)
Before taking action under subsection (3), the
court—
(a)
must be satisfied beyond reasonable doubt that—
(i)
(ii)
the court order or undertaking being enforced has been made
in clear and unambiguous terms and is clearly binding
on the person;
and
the person has knowledge or proper notice of the terms
of the court order or undertaking being enforced; and
(b)
(iii) the person has, without reasonable excuse, intentionally failed
to comply with the court order or undertaking being
enforced; and
must
also be satisfied that other methods of enforcing the court order or
undertaking have been considered and are inappropriate
or have been tried
unsuccessfully.
Commentary
It is fundamental to the
administration of justice that court judgments and orders will be enforced
against those who fail
or refuse to comply with them.
Clause 22 is
intended to provide a straightforward and efficient means for enforcing court
orders. It covers orders made in criminal
as well as civil proceedings. It is
intended that the availability of this mechanism will be sufficient to compel
compliance in
the majority of cases. The Solicitor-General has the power to
apply under this provision as well. This reflects the current position
and is
appropriate in cases where continued defiance of court orders risks undermining
the administration of justice.
Schedule 2 contains consequential
amendments to the Family Court Act 1980 and the Resource Management Act
1991 applying
clauses 22 and 23 (subpart 5 of Part 2 of the Bill) to
the Family Court and Environment Court. These amendments confer
jurisdiction under clauses 22 and 23 on those courts, resolving any
uncertainty over the extent of their current jurisdiction
to enforce their
own orders.
Clause 23 – Further provisions applying for purpose of section
22
23 Further provisions applying for purpose of section 22
(1) (2) (3)
The Sentencing Act 2002 and subpart 5 of Part 6 of the Criminal Procedure
Act 2011 apply to any committal or fine imposed under
section 22(3)
as if the sanction were a conviction for an offence to which that subpart
5 applies and any imprisonment or fine were a sentence.
A warrant for the
committal of any person to prison under section 22(3) must be
directed to a bailiff or constable, who may take the person into custody, and
every constable has a duty to assist in the
execution of the orders or warrants
issued under that provision.
Any person committed to prison by any
court under section 22(3) must be committed to a prison established
under or deemed to be established under the Corrections Act 2004, and the
prison
manager of the prison mentioned in the order or warrant is bound to
receive and keep the person until the person is lawfully
discharged.
Reforming the law of contempt of court: A modern statute 163
Administration of Justice (Reform of Contempt of Court) Bill
and commentary
(4)
(5)
If at any time it appears to the satisfaction of a Judge of the court that
committed the person to prison that the person
ought for any reason to be
discharged, the Judge may order the person’s discharge from prison on
any terms (including
liability to rearrest if the terms are not complied with)
that the Judge thinks fit.
A committal or fine imposed under
section 22(3) does not operate to extinguish or affect the liability of
the person to comply with a court order.
Commentary
This clause provides that non-compliance with court orders should be
treated similarly to other offending, notwithstanding
that a finding of
non-compliance does not result in a conviction. The same rights and procedures
in relation to appeals, sentencing
and detention should apply to those found
guilty of non-compliance. Sub-clause (4) permits a judge to release a
person committed
to prison under clause 22. This provides an avenue for a
person committed under this subpart to secure their release by complying
with the court’s instructions, which aids this subpart’s objective
of incentivising compliance.
Subpart 6 – Prohibiting publication of untrue allegations or
accusations against Judges or courts
Clause 24 – Offence to publish untrue allegation or accusation
against Judge or court
24 Offence to publish untrue allegation or accusation against Judge or
court
(1)
(2)
A person commits an offence if the person publishes an allegation or
accusation made by that person or another person against
a Judge or a court,
and there is a real risk that the publication could undermine public
confidence in the independence, integrity,
or impartiality of the judiciary or a
court.
A person who commits an offence against subsection (1) is
liable on conviction,—
(a)
(b)
in the case of an individual, to a term of imprisonment of less than 2
years or a fine not exceeding $50,000:
in the case of a body corporate,
to a fine not exceeding $100,000.
(3)
A person has a defence in a prosecution for an offence against
subsection (1) if the person proves on the balance of probabilities
that—
(a) (b)
the allegation or accusation was true or not materially different from
the truth; or
where the prosecution is based on all or any of the
contents of a publication, that the publication taken as a whole was
in
substance true or in substance not materially different from the truth.
(4)
(5)
A person has a defence in a prosecution for an offence against
subsection (1) if the person proves that, as the online host or
distributor of the publication, the person did not know that it contained an
allegation or accusation against a Judge or a court that created a
real risk of undermining public confidence in the
independence, integrity, or
impartiality of the judiciary or a court.
In this
section,—
court means any court, including a court as
defined in section 4
Judge means a Judge of any
court.
164 Law Commission Report
Commentary
Subpart 6 implements the policy set out in chapter 6 of our Report to
replace and reform the common law contempt of ‘scandalising
the
court’. Clause 24 is intended to maintain the independence,
integrity and impartiality of the judiciary and protect
the judiciary as an
institution, and does not serve to protect the feelings of individual judges or
to stifle legitimate criticism.
Clause 24 creates a new offence as a statutory replacement for the current
common law contempt of scandalising the court. Clause
29(4)(e) of the Bill
abolishes the common law contempt of scandalising. Under clause 24(1) it is an
offence for any person to publish
an untrue allegation or accusation against a
Judge or court where there is a real risk that the publication could
undermine
public confidence in the independence, integrity, or impartiality of
the judiciary or a court. Sub-clause (1) contains the same
real risk test as in
clause 14(2) of the Bill. The mental element of intention applies only to the
action of publication and
there is no requirement for the prosecution to prove
any intention to undermine public confidence in the independence, integrity
and impartiality of the judiciary. The offence covers statements of opinion,
which are not capable of proof, as well as allegations
of fact that are
untrue.
Sub-clause (3) provides that truth is a defence, and is based upon the
defence of truth in section 8 of the Defamation Act 1992
and related
jurisprudence.
We consider the offence to be a reasonable limitation of the right to
freedom of expression affirmed in the New Zealand Bill of
Rights Act 1990.
Legitimate criticism is protected by the threshold of a ‘real risk’
in sub-clause (1), and the availability
of the defence of truth in sub-clause
(3). Similar offences are recognised as justified limitations on the right to
freedom of
expression in other jurisdictions.622
Sub-clause (5) defines court broadly for the purposes of the offence.
It includes all courts, and in this way will cover allegations and accusations
against
a Community Magistrate or a Justice of the Peace or other judicial
officer where these meet the test in sub-clause (1).
Clause 25 – Further provisions applying for purpose of section
24
25 Further provisions applying for purpose of section 24
(1)
(2)
This section applies if the Solicitor-General has reason to believe
that a person may have committed an offence against
section
24(1).
The Solicitor-General may do 1 or more of the
following:
(a) (b) (c)
(d)
request the alleged offender to retract the allegation or accusation or
apologise for it, or both:
request the alleged offender to retract the
allegation or accusation pending the hearing of the charge:
request
an online content host to take down, or disable public access to, any
specified information relating to the
allegation or accusation that the
host has made accessible to members of the public:
apply to the High
Court for an order under section 26.
(3)
Nothing in subsection (2) obliges the Solicitor-General to
take any action described in paragraphs (a) to (c) of that
subsection or requires that a charge for the alleged offence be filed before
he or she may apply for an order under section
26.
622 See [6.74] of the Report.
Reforming the law of contempt of court: A modern statute 165
Administration of Justice (Reform of Contempt of Court) Bill
and commentary
(4) (5)
(6)
A charge for an offence against section 24(1) may be brought
only by or on behalf of the Solicitor-General, and the prosecutor must
be satisfied that there is a
sufficient evidential foundation for the
charge and that the prosecution is in the public interest.
For the
purpose of deciding whether to prosecute a person for an offence against
section 24(1), the prosecutor may consider whether any complaint about
the Judge’s conduct has been made to the Police, or to the Judicial
Conduct Commissioner under the Judicial Conduct Commissioner and Judicial
Conduct Panel Act 2004, and consider any explanation
provided by the
Judge.
Despite anything in the Criminal Procedure Act 2011 or the Search
and Surveillance Act 2012,—
(a) (b) (c)
the Solicitor-General may investigate whether a person has committed an offence against
section 24(1) or may request the Police to do so:
the
Solicitor-General and the Police may exchange information for the purpose
of an investigation:
the powers that a constable or any other
Police employee may exercise under any enactment in the case of an
alleged
offence punishable by a term of imprisonment of less than 2 years may
be exercised in relation to the alleged offence against section 24(1)
and, subject to subsection (4), a charge may be filed against the
alleged offender.
Commentary
The new offence in clause 24
is intended to be a last resort. Clause 25, together with the rest of Subpart
6, provides other
means to deal with untrue allegations or accusations
which meet the real risk test. The four options listed in sub-clause
(2) are
intermediary steps, which would typically be taken in the same order as
listed and which should be sufficient to
resolve most cases. Prosecution is
intended to be a last resort, and to serve primarily as a deterrent. All of the
options are,
however, at the discretion of the Solicitor-General, and his or
her approach will depend on the circumstances of the particular
case. The
Solicitor-General has responsibility for bringing a prosecution under this
provision and in accordance with the standard
test for prosecution found in
the Solicitor-General’s Prosecution Guidelines. This approach is
described further in our
Report at [6.88]–[6.93].
Sub-clause (6) is
an avoidance of doubt provision, clarifying that there is no legislative
impediments to the Solicitor-General
investigating whether an offence under
clause 24(1) has been committed or requesting Police to do this. Sub-clause
(6) also
clarifies that the Solicitor-General and Police can exchange
investigative information and the Police may exercise its enforcement
powers
to assist an investigation of an alleged offence.
Clause 26 – High Court may make orders
26 High Court may make orders
(1)
On application under section 25(2)(d), the High Court may, if satisfied that there is an arguable case that a person has committed an offence against section 24(1), order the person to do 1 or more of the following:
(a) (b) (c) (d) (e)
take down, or disable public access to, material:
retract the
allegation or accusation:
not encourage any other persons to engage in
similar communications:
publish a correction:
publish an
apology.
166 Law Commission Report
(2)
The court may—
(a) (b) (c)
make an order on an interim basis, pending the filing of a charging
document:
vary or discharge any interim order:
make an interim
order permanent if the interim order is accepted or a person is convicted of the
charge.
(3)
(4)
In addition, the court may order that an online content host take
down, or disable public access to, any material related to
the suspected
offence that the host has made accessible to members of the public.
In
making an order that a correction or an apology be published under
subsections (1)(d) or
(e), the court may include requirements relating to—
(a) (b) (c)
the content of the correction or apology:
the time of publication of
the correction or apology:
the prominence to be given to the correction
or apology in the particular medium in which it is published.
(5) (6) (7)
In doing anything under this section, the court must act consistently
with the rights and freedoms contained in the New Zealand Bill
of Rights Act
1990.
A person to whom section 12(1) applies has standing to be
heard in relation to, any application for an order under subsection
(1)(a), and any application to renew, vary, or revoke the order.
If
an interim order is not made permanent, it lapses.
Commentary
Clause 26 provides for the making of interim or permanent orders to deal with
material where there is an arguable case that a
person has breached
clause 24. This clause is largely modelled on the equivalent provisions in
the Harmful Digital Communications
Act 2015 and the Defamation Act 1992.
Sub-clause (3) is intended to address cases where the person committing the
contempt is
outside the jurisdiction or unable to be identified. The Court
should be able to directly order online content hosts, including internet
service providers, search engines and social media, to remove material or
disable access to it. Sub-clause (6) gives members
of accredited media, and
any other person reporting on the proceedings with the permission of the Court,
standing to be heard
on any application for an order under sub-clause
(1)(a) or any application to renew, vary or revoke any order made under
sub-clause (1)(a).
Clause 27 – Offence to fail to comply with order under section
26
27 Offence to fail to comply with order under section 26
(1)
(2) (3)
A person commits an offence if the person knowingly or recklessly fails to
comply with an order made under section 26.
A person commits an
offence if the person fails to comply with an order made under section
26. A person who commits an offence against subsection (1) is liable
on conviction,—
(a)
(b)
in the case of an individual, to a term of imprisonment not exceeding 6
months or a fine not exceeding $25,000:
in the case of a body corporate,
to a fine not exceeding $100,000.
Reforming the law of contempt of court: A modern statute 167
Administration of Justice (Reform of Contempt of Court) Bill
and commentary
(4)
A person who commits an offence against subsection (2) is liable on
conviction,—
(a)
(b)
in the case of an individual, to a fine not exceeding $10,000:
in the
case of a body corporate, to a fine not exceeding $40,000.
(5)
In a prosecution for an offence against subsection (2), it is not
necessary for the prosecution to prove that the defendant intended to commit an
offence.
Commentary
Clause 27 creates a separate offence of failing to comply with an order
under clause 26. This would exist independently of any
charge, whether laid or
not, under clause 24. It would not be permissible to defend a charge under
clause 27 by launching a
collateral attack relating to the alleged breach of
clause 24. Sub-clause (1) creates an offence with a mental element of
intention,
while sub-clauses (2) and (5) create a strict liability offence with
lower penalties.
PART 3 – GENERAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS
Clause 28 – Judicial powers exercisable as often as necessary to
control proceedings
28 Judicial powers exercisable as often as necessary to control
proceedings
(1)
This section applies to the following actions under this Act:
(a) (b)
(c)
making an order under section 8, 9, 10, or 26:
citing a
person under section 16:
issuing a warrant of committal or
imposing a fine under section 17 or 22.
(2)
Unless the context otherwise requires, the power of a Judge or judicial
officer to make any order or take any action under this
Act to which this
section applies is exercisable in any proceedings as often as the Judge or
judicial officer considers necessary
to control the proceedings.
Commentary
Clause 28 provides that the listed powers may be exercised by the court as
often as necessary. This reflects the current position,
under which an
individual causing repeated or ongoing disruptions to court proceedings, for
example, may be detained daily and
potentially for the duration of proceedings.
This is also similar to section 165 of the Criminal Procedure Act 2011, under
which
a witness refusing to give evidence may be detained for a period of up to
seven days, which may be renewed as long as the witness
continues their
refusal. The ability of the judge to exercise these powers as often as
necessary is essential to ensure the
efficient conduct of court
business.
Clause 28 is consistent with section 13 of the Interpretation Act 1999,
which provides that powers and duties conferred by legislation
may be
exercised more than once.
Clause 29 – How this Act relates to other authority or power to
punish for contempt of court
29 How this Act relates to other authority or power to punish for
contempt of court
(1)
(2)
Where this Act confers on a court or Judge any jurisdiction, authority,
or power to punish a person for contravening or failing
to comply with any
provision of this Act, the court or Judge has no inherent jurisdiction or power
to punish that conduct.
Nothing in this Act limits or affects any
authority or power of a court, including the authority of the High Court under
its inherent
jurisdiction, to punish any person for contempt of court in any
circumstances to which this Act does not apply.
168 Law Commission Report
(3)
(4)
The Supreme Court and the Court of Appeal have the same authority as the High
Court to punish any person for contempt of court in
any circumstances to which
this Act does not apply.
The following contempts are abolished as part of
the common law of New Zealand:
(a) (b) (c) (d) (e)
contempt in the face of the court:
publishing information that
interferes with a fair trial:
contempt by jurors: disobeying court
orders: scandalising the court. Commentary
This Bill abolishes the listed common law contempts, and in their place
substitutes a new statutory offence regime. While this
is intended to be
largely exhaustive of the range of behaviour that may be described as
contempt, it is of fundamental importance
that this Bill should not
inadvertently curtail the courts from dealing with conduct not otherwise
covered by the Bill.
Where this Bill does not apply to a form of conduct,
the High Court may still have recourse to its authority under its inherent
jurisdiction.
As discussed in chapter 1 at [1.11] and in chapter 7 at
[7.22] the contempt jurisdiction of the Supreme Court and Court of Appeal
is
limited to any relevant statutory powers such as those conferred by section
165 of the Senior Courts Act 2016 and, possibly,
in their individual capacities
as judges of the High Court, to exercising the powers of High Court Judges.
Sub-clause (3) removes
any doubt about the contempt powers of the Supreme
Court and the Court of Appeal by clarifying that, in respect of contempt
of
court, both appellate courts have the same authority as the High Court has
under its inherent jurisdiction.
Clause 30 – Prosecution of offence against section 24
30 Prosecution of offence against section 24
Only the Solicitor-General may conduct or authorise the conduct of a
prosecution against a person for an offence against
section 24
(publishing untrue allegation or accusation against Judge or
court).
Commentary
The requirement that the Solicitor-General conduct or authorise the
conduct of prosecutions for the offence against clause 24
reflects the
current position, and is consistent with the Solicitor-General’s
constitutional responsibility to uphold
and maintain the rule of law and
protect the independence of the judiciary. It also allows the
Solicitor-General to consider
wider issues of public interest and other
matters when determining if a prosecution should be brought. This may involve
consideration
of factors outlined in our Report, as well as the test for
prosecutions contained in the Solicitor-General's Prosecution
Guidelines.
Clause 31 – Consequential amendments
31 Consequential amendments
Amend the enactments specified in Schedule 2 as set out in that
schedule.
Reforming the law of contempt of court: A modern statute 169
Administration of Justice (Reform of Contempt of Court) Bill
and commentary
Commentary
Schedule 2 contains only the more obvious consequential amendments necessary
to give effect to the proposals in the Bill. A number
of other amendments will
therefore need to be added to the schedule before the Bill is
introduced.
SCHEDULE 1 – TRANSITIONAL, SAVINGS, AND RELATED PROVISIONS
Clause 1 – Contempt of court proceedings begun before commencement
of this Act to be completed under former law
1 Contempt of court proceedings begun before commencement of this Act
to be completed under former law
(1) (2)
Any contempt of court proceeding at common law that was begun before the
commencement of this Act must be continued and completed,
or otherwise disposed
of, as if this Act had not been passed.
Any contempt of court proceeding
under any Act that was begun before the commencement of this Act must also be
continued and completed,
or otherwise disposed of, as if this Act had not been
passed.
Commentary
The provisions of this Bill should only apply to proceedings that are
commenced after the enactment of the Administration of Justice
(Reform of
Contempt of Court) Act. Proceedings commenced prior to enactment should continue
to be determined in accordance with the
law that applied at the time the
proceedings were commenced.
Clause 2 – Proceedings under this Act may enforce existing court
order or undertaking
2 Proceedings under this Act may enforce existing court order or
undertaking
Section 22 is deemed to apply to any court order or undertaking
of a kind described in that section that was made or given before the
commencement
of this Act and has not been complied with or satisfied.
Commentary
Clause 2 provides for the enforcement of certain court orders and undertakings. Clause 2 of Schedule
1 provides that such orders and undertakings may be enforced under this
Bill regardless of whether they were made before the commencement
of this
Bill.
170 Law Commission Report
Appendices
APPENDIX 1: Court orders enforced by offence provisions
Appendix 1
Court orders enforced by offence provisions
A number of statutory regimes include specific offences to enforce compliance
with court orders.
PROVISION OFFENCE MAXIMUM PENALTY
Accident
Compensation Act
2001
Agricultural Compounds and Veterinary Medicines Act 1997
Animal Welfare Act
1999
Care of Children Act
2004
Children, Young Persons, and Their Families Act 1989
Section 160 enables the court to make orders forbidding publication of
evidence adduced, submissions, and identifying particulars
of certain persons.
Section 160(4) provides that any person who breaches, evades or attempts to
evade an order commits an offence.
Section 55(1A) makes it an offence to
contravene an order prohibiting a person from importing, manufacturing,
selling, or using any
trade name product or agricultural compound. Under s
56(1A), anyone who does so commits an offence.
Under s 152, it is an
offence to contravene an enforcement order.
Section
78(1)(a) makes it an offence to intentionally contravene a parenting order or
certain types of guardianship orders.
Section 89 makes it an offence to
contravene a restraining order or interim restraining order.
A fine up to $1,000, in the case of an individual, or
$5,000 for a
body corporate.
A term of imprisonment up to 2 years or a fine not
exceeding $60,000 or
both.
Imprisonment for up to 6 months or a
fine not exceeding $25,000 or both or, for a body corporate, a fine not
exceeding
$125,000.
Up to 3 months’
imprisonment.
Imprisonment for up to 3 months' or a fine not
exceeding $2,000.
Commerce Act 1986 Pursuant to s 80C the court may make an order that
a person must not be a director, a promoter or in any way involved with the
management
of a body corporate for a period of up to 5 years. Contravention of
such an order is an offence.
Commerce Act 1986 Under s 87C(b), if the court is satisfied that goods or services are being supplied, or are likely to be supplied, in contravention of applicable price-quality requirements, the court may order the supplier to comply with the price- quality requirement. Contravention of such an order is an
offence.
Imprisonment for up to 5 years or a fine not exceeding
$200,000.
A fine up to $200,000 in the case of an individual, or
$1,000,000 for a body corporate.
172 Law Commission Report
PROVISION OFFENCE MAXIMUM PENALTY
Copyright Act 1994 A District Court judge may order a person to produce documents for inspection by an enforcement officer in accordance with s 134Y. Failure to comply with the order, without reasonable excuse, is an offence under s 134ZA.
Imprisonment for up to 6 months or a fine not exceeding $10,000 or, for
a body corporate, a fine not exceeding $50,000.
Credit Contract and Consumer Finance Act 2003
Criminal Proceeds
(Recovery) Act 2009
Domestic Violence
Act 1995
Employment
Relations Act 2000
Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act
2012
Fair Trading Act
1986
Financial Markets
Conduct Act 2013
Financial Service Providers (Registration and Dispute Resolution) Act 2008
Under s 108, the District Court may order persons not to act as
creditors, lessors, transferees or buy-back promoters. Every individual
who acts
in breach of this order commits
an offence.
Under s 150, every person commits an offence who, knowing that a
restraining order has been made or that a foreign restraining order
has been
registered in New Zealand in respect of property, disposes of or otherwise
deals with that property in contravention
of the order.
It is an offence
under s 49 to breach a protection order without reasonable excuse.
A
person who breaches a banning order commits an offence under s
142R.
Section 134F makes it an offence to breach, or permit a
breach of an enforcement order. Penalties are set out in
s134H.
A person who breaches a management
banning order made against him or her under s 46E commits an
offence.
Under s 519, an individual who contravenes a banning order under
Part 8 subpart 6 commits an offence.
A District Court may make
an order under s 49F requiring a member of an approved dispute resolution
scheme to comply with the rules
of the scheme or with a binding settlement. A
member who knows they are subject to the order and fails to comply with it
commits
an offence under
s 49G.
Imprisonment for up to 3 months or a fine not exceeding $200,000 or
both. For a body corporate, a fine not exceeding $600,000.
Imprisonment
for up to 5 years or a fine not exceeding $20,000 or both or, for a body
corporate, a fine up to $60,000.
Imprisonment for up to 3
years.
Imprisonment up to 3 years or a fine not exceeding $200,000 or
both.
A fine up to $300,000 or, for a body corporate, a fine not
exceeding $10 million. For a continuing offence, the person is liable
to a fine
up to
$10,000 for every day the offence continues.
A fine not
exceeding
$60,000.
Imprisonment for up to 3 years or a fine not exceeding
$200,000 or both.
A fine not exceeding
$200,000.
Food Act 2014 It is an offence under s 242 to breach or fail to comply with an order made under any of ss 272 (order to withdraw material), 273 (order to restrict or prohibit trading in food),
334 (compliance order), 335 (interim compliance order),
and 337(6)(a) (change or cancel compliance order).
For a body corporate, a fine up to $300,000, and for an individual, a
fine not exceeding $75,000.
Reforming the law of contempt of court: A modern statute 173
APPENDIX 1: Court orders enforced by offence provisions
PROVISION OFFENCE MAXIMUM PENALTY
Gas Act 1992 The District Court may make an order under s 43B regarding compliance with the dispute resolution scheme. A member or former member of the dispute resolution scheme who knows they are subject to the order but nevertheless fails to comply with it, commits an offence
under s 43EC.
A fine not exceeding
$100,000.
Harassment Act
1997
Harassment Act
1997
Harmful Digital Communications Act 2015
It is an offence under s 25(1) to contravene a restraining order or to
fail to comply with any condition of a restraining order.
It is
an offence under s 41 to breach, evade, or attempt to evade an order made under
s 39(1)(a) (order forbidding publication of
certain evidence or submissions) or
s 39(1)(b) (order forbidding publication of name, particulars or affairs of a
person).
Section 21 makes it an offence not to comply with a take down
order, or one of the other orders the court can make under ss 18 and
19.
A fine not exceeding
$5,000 or a term of imprisonment up to 6 months (or up to 2 years for
multiple offences).
A fine up to $1,000 or, for a body corporate, a fine
not exceeding $5,000.
Imprisonment for up to 6 months or a fine
not exceeding $5,000 or, for a body corporate, a fine not exceeding
$20,000.
Health Act 1956 If the District Court is satisfied that a nuisance exists or is likely to recur on a premise, it may make an order under
s 33(2) requiring the owner and occupier to effectively abate the nuisance, prohibit the recurrence of the nuisance or abate and prohibit recurrence of the nuisance, or an order specifying the work to be done and the timeframe.
Failure to comply with the order is an offence.
A fine not exceeding $500 and a further fine not exceeding $50 for every
day on which the offence has continued.
Heritage New Zealand Pouhere Taonga Act 2014
Insurance (Prudential Supervision) Act
2010
Land Transport Act
1998
Local Government
Act 1974
Section 90(3) makes it an offence to contravene, or permit contravention
of, an order made under s 92.
A person commits an offence under s
228 if the person fails to comply with an order under s 22 prohibiting the
person from participating
in an insurance business.
Section 55A
makes it an offence to tamper or attempt to tamper with an alcohol interlock
device, or to use an alcohol interlock
device in contravention of an order made
under s 65A(2).
If a court makes an order directing the execution of work
or the doing of any act, and no punishment for disobeying the order is provided
by the Act, every person disobeying the order commits an offence under s
698.
A fine not exceeding
$3,750 or a fine of $7,500 in the case of a body
corporate.
Imprisonment for up to 3 months and/or a fine not exceeding
$200,000 or, for a body corporate, a fine up to $1,000,000.
A fine not
exceeding
$3,000.
A fine not exceeding $500 and, where the offence is a continuing one, a
further fine up to $50 for every
day the offence
continues.
174 Law Commission Report
PROVISION OFFENCE MAXIMUM PENALTY
Resource
Management Act
1991
Sale and Supply of
Alcohol Act 2012
Search and
Surveillance Act
2012
Smoke-Free
Environments Act
1990
It is an offence under s 338(1)(b) for any person to contravene any
enforcement order made by the Environment Court.
Section 265
applies if a riot occurs or there are reasonable grounds to believe a riot may
occur. An order can be made requiring
every licensee within a specified distance
of that place to close his or her premise for a specified period of time. A
licensee or
manager who contravenes an order commits an offence.
Under s
173 every person commits an offence if he or she fails to comply with an
examination order without reasonable excuse. Under
s 174 every person commits
an offence if he or she fails to comply with a production order without
reasonable excuse.
Section 30AB(2) provides that certain repeat
offenders may be ordered not to sell tobacco products. Failure to comply
with such
an order is an offence under s 36(7AA).
Imprisonment for up to 2 years or a fine not exceeding $300,000 or, for
a body corporate, a fine
not exceeding $600,000.
Licensee: A fine not
exceeding $10,000 and suspension of licence for not more than 7 days. Manager:
A fine not exceeding $10,000.
Imprisonment for up to 1 year, or for a
body corporate, a fine not exceeding $40,000.
For an Individual a
fine not exceeding $4,000. For a body corporate, a fine not exceeding
$10,000.
Takeovers Act 1993 Pursuant to s 44H, an individual who acts in
contravention of a management banning order commits an offence.
Takeovers Act 1993 Pursuant to s 44P a person commits an offence who contravenes an order made under ss 44M (orders prohibiting payment or transfer of money, financial products or other property) or 44N (interim orders).
Imprisonment for a term not exceeding 3 years or a fine not
exceeding
$100,000 or both.
For an Individual imprisonment for up to 3
years and/or a fine not exceeding $100,000. For a body corporate, a fine not
exceeding
$300,000.
Tax Administration
Act 1994
Telecommunications
Act 2001
Trade Marks Act
2000
Tuberculosis Act
1948
It is an offence under s 143G to fail to comply with the terms of a court
order made under s 17A (Court orders for production of information
or
return).
A member or former member of a consumer complaints system
commits an offence if they know they are subject to an order under s
155L
(compliance with rules and binding settlements) but fail to comply with the
order.
Section 134ZA makes it an offence to fail to comply with an order
under s 134Y (judge may order documents to be produced).
If a
person suffering from tuberculosis is in an infectious condition and the
requirements of s 16(1) are satisfied, an order may
be made to remove the
patient to a suitable place to be properly attended, treated and detained for a
period not exceeding 3 months.
It is an offence to wilfully disobey the
order.
Imprisonment for up to 3 months or a fine not exceeding
$1,000.
A fine not exceeding
$100,000.
Imprisonment up to 6 months or a fine not exceeding $10,000. For a body
corporate, a fine not exceeding $50,000.
A fine not exceeding $40 and a
further fine not exceeding $4 for every day during which the offence
continues.
Reforming the law of contempt of court: A modern statute 175
APPENDIX 1: Court orders enforced by offence provisions
PROVISION OFFENCE MAXIMUM PENALTY
Utilities Access Act
2010
Victims’ Orders Against Violent Offenders Act 2014
A person who knows they are subject to an order made under s 7 (court may
order compliance with Code) but fails to comply with the
order, or fails to
comply with the order within the specified time, commits an offence under s
8.
Under s 24, it is an offence for an offender or associate to act in
contravention of a non-contact order applying to them, without
reasonable
excuse.
A fine not exceeding
$200,000.
Imprisonment for up to 2 years or a fine not
exceeding
$5,000.
176 Law Commission Report
Appendix 2
Administration of Justice (Reform of
Contempt of Court)
Bill
Reforming the law of contempt of court: A modern statute 177
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
178 Law Commission Report
Reforming the law of contempt of court: A modern statute 179
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
180 Law Commission Report
Reforming the law of contempt of court: A modern statute 181
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
182 Law Commission Report
Reforming the law of contempt of court: A modern statute 183
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
184 Law Commission Report
Reforming the law of contempt of court: A modern statute 185
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
186 Law Commission Report
Reforming the law of contempt of court: A modern statute 187
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
188 Law Commission Report
Reforming the law of contempt of court: A modern statute 189
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
190 Law Commission Report
Reforming the law of contempt of court: A modern statute 191
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
192 Law Commission Report
Reforming the law of contempt of court: A modern statute 193
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
194 Law Commission Report
Reforming the law of contempt of court: A modern statute 195
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
196 Law Commission Report
Reforming the law of contempt of court: A modern statute 197
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
198 Law Commission Report
Reforming the law of contempt of court: A modern statute 199
APPENDIX 2: Administration of Justice (Reform of Contempt of
Court) Bill
200 Law Commission Report
Appendix 3
List of submitters and consultees
LIST OF SUBMITTERS
Organisations
. Auckland District Law Society Incorporated
. Crown Law Office
. Fairfax Media
. New Zealand Law Society
. New Zealand Media Entertainment
. New Zealand Police
. Royal Federation of New Zealand Justices’ Associations Inc
. Television New Zealand
. Wellington Community Justice Project
Individuals
. Isabelle Brunton and Jess Greenheld
. Nicci Coffey
. Jamie Crosbie, Rebecca Morris and Marcus Playle
. Harry De Lacey and Hartley Spring
. Tiffany Dvorak, Jessica Seo and Tanya Young
. Dr Tony Ellis
. Michael Finucane and Conor Tinker
. John Garvitch
. Gavin Hillary
. Joshua Ioelu and Matthew Tihi
. Nevan Lancaster
. Philip Lyth
. Peter McKnight and Ali Romanos
. Anthony Morgan and Ruth Ziegler
. Associate Professor Rosemary
Tobin
Reforming the law of contempt of court: A modern statute 201
APPENDIX 3: List of submitters and consultees
CONSULTATION LIST
The Law Commission consulted with the following persons and
organisations during the course of this review:
Organisations
. Auckland District Law Society Incorporated
. Crown Law Office
. Ministry of Justice
. New Zealand Law Society, Canterbury-Westland branch
. New Zealand Law Society, Wellington branch
. New Zealand Police
. Representatives of the Judiciary
Individuals
. Emeritus Professor John Burrows QC
. Professor Ursula Cheer
. Professor Claudia Geiringer
. Dean Knight
. Rt Hon Sir Geoffrey Palmer QC
. Steven Price
. Josie Te Rata
. Associate Professor Rosemary Tobin
We are grateful for the valuable contributions made by all submitters
and everyone we consulted during this
review.
202 Law Commission Report
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