Contents

Chapter 9
Some judicial powers

Contempt in the face of the court

9.3The statutory power to hold someone in contempt of court is commonly known as “contempt in the face of the court”.111  This is because it covers misconduct in court (and in some circumstances on the way to and from court), and disobedience of court orders. Where a person acts in such a way, the presiding Judge is empowered to have the “contemnor” taken into custody and detained until the rising of the court. The Judge can, ultimately, sentence the person to a term of imprisonment or impose a fine.112
9.4In Issues Paper 29, we noted that there are a number of differently worded contempt in the face of the court provisions currently in existence, and we identified three issues relating to them:113
9.5Our provisional view was that assaults and threats should not come within the sections’ scope,114  the “savings” subsection only retains the courts’ inherent powers in respect of other contempt measures (and that this should be made clear),115  and that there was no reason to have separate provisions for either.116
9.6Following on from this last point, we considered that there should be one provision in a new Courts Act that should apply to all courts and proceedings.117  Therefore, the specific criminal provision recently enacted as section 365 of the Criminal Procedure Act 2011 would no longer be required,118  but could rather be replaced with a “signpost” provision directing the user to the relevant section of the new Courts Act.119  However, we considered section 365 to be a good model, and we ultimately proposed in Issues Paper 29 that the contempt in the face of the court provision in new courts legislation should be drafted in similar terms.
9.7We summed all this up by asking the question:120

Do you agree that there should be a generic provision in a new Courts Bill for contempt in the face of the court, dealing with all courts and proceedings, and drafted in similar terms to s 365 of the Criminal Procedure Act 2011?

9.8No submitters disagreed with our proposal, and many expressly agreed with it. Accordingly, we recommend that the draft contempt provision from Issues Paper 29 be included in new courts legislation, and that section 365 of the Criminal Procedure Act 2011 be repealed and replaced with a “signpost” provision. The draft provision is included in this Report as Appendix 4.

9.9One final point does, though, need to be addressed before we leave this topic. In Issues Paper 29, we noted that the Law Commission had recently received a reference to address the whole law of contempt, and that the interface between that reference and the present consideration of only the contempt in the face of the court provisions could be problematic.121  However, we concluded that, as the overall proposal in Issues Paper 29 was to repeal all the existing courts legislation and replace it with a new Courts Act, something needed to be done about contempt in the face of the court now, so as not to leave a “hole”.122

9.10We did not receive any negative feedback on our proposed way forward. Further, given that the Law Commission has not commenced the general contempt reference at the time of writing this Report, we are fortified in our view that this is the appropriate course.

R42 There should be a generic provision in new courts legislation for contempt in the face of the court, dealing with all courts and proceedings, and drafted in similar terms to section 365 of the Criminal Procedure Act 2011.

R43Section 365 of the Criminal Procedure Act 2011 should be repealed, with a “signpost” provision retained in its place directing users to the relevant section of the new courts legislation.

111See, for example, Morris v Crown Office [1970] 2 QB 114 at 122B-C.
112The maximum penalties under the existing courts legislation range from 5 days imprisonment and/or a fine of $5,000 (Supreme Court Act 2003, s 35) to 3 months imprisonment or a fine of $1,000 (District Courts Act 1947, 112; Judicature Act 1908, s 56C).
113Review of the Judicature Act 1908: Towards a new Courts Act, above n 108, at [5.18]-[5.22].
114At [5.18]. This was consistent with what we had said in an earlier review of the contempt in the face of the court provisions in the Crimes Act 1961 and the Summary Proceedings Act 1957: Law Commission Suppressing Names and Evidence (NZLC R109, 2009).
115At [5.19]-[5.20].
116At [5.21].
117At [5.17].
118We note that it is not yet in force.
119Review of the Judicature Act 1908: Towards a new Courts Act, above n 108, at [5.22]. This was because contempt provisions often have to be invoked in “battlefield conditions”.
120At Q13. We also provided a draft provision, at appendix 3, to enable submitters to see precisely what we were proposing.
121At [5.7].
122At [5.10].