Contents

Administration of Justice (Reform of Contempt of Court) Bill and commentary

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 chargesTop

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) any of the arrested person’s previous convictions for any offence:

(b) any other offence that is a category 3 or 4 offence, if the arrested person is—

(i) already charged with that other offence when arrested for offence A; or

(ii) charged with that other offence at the same time as the person is charged with offence A; or

(iii) charged with that other offence at any subsequent time while the person remains charged with offence A.

(2) 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).

(3) If the arrested person is charged with offence A, the pre-trial court or trial court (as the case may be)—

(a) must keep the prohibition under review:

(b) may, by order made on application or on its own initiative,—

(i) lift the prohibition before the trial:

(ii) extend the prohibition for a period that ends after the start of the trial:

(iii) vary the effect of the prohibition by permitting the publication of any details as specified in the order.

(4) 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.

(5) The prohibition ceases to apply if—

(a) the court makes an order to that effect under subsection (3)(b)(i); or

(b) the arrested person ceases to be subject to arrest for offence A; or

(c) the charge against the arrested person for offence A is withdrawn, dismissed, stayed, or otherwise disposed of; or

(d) 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) the Solicitor-General:

(b) a Police employee:

(c) any person who is conducting or proposing to conduct a public prosecution against the arrested person for offence A:

(d) 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 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 temporarilyTop

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) any specific information relating to matters of character of any person who is accused of or charged with an offence:

(b) any specific information relating to the previous convictions or matters of character of any person who—

(i) may be called as a witness; or

(ii) may be a victim of the offence; or

(iii) is connected with the person who is accused of or charged with the offence:

(c) any other specific information relating to any trial.

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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-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 reviewTop

10 Duration of suppression order and right of review

(1) An order under section 9(1)

(a) may be made for a limited period ending on a date specified in the order; and

(b) may be renewed for a further period or periods by the court; and

(c) 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, etcTop

11 Publication by or at request of Police, etc

(1) 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.

(2) Nothing in this subpart prevents publication of the name, address, or occupation of any person, or any details of the offences charged, to—

(a) any person assisting with the administration of the sentence imposed on the person or with the rehabilitation of the person; or

(b) 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

(c) 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) deciding whether to commence proceedings; or

(ii) 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 mediaTop

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) a code of ethics; and

(ii) 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.

Clause 13 – Offences relating to breach of this subpartTop

13 Offences relating to breach of this subpart

(1) A person commits an offence if the person knowingly or recklessly—

(a) fails to comply with section 8(1); or

(b) fails to comply with an order made under section 8 or 9.

(2) A person commits an offence if the person—

(a) fails to comply with section 8(1); or

(b) fails to comply with an order made under section 8 or 9.

(3) 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.

(4) A person who commits an offence against subsection (1) is liable on conviction,—

(a) in the case of an individual, to a term of imprisonment not exceeding 6 months or a fine not exceeding $25,000:

(b) 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) in the case of an individual, to a fine not exceeding $10,000:

(b) 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 informationTop

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) applies until the completion of all proceedings relating to the jury trial (including pre-trial proceedings); and

(b) ceases to apply if the charge is dealt with or disposed of otherwise than by a jury trial.

(2) A person commits an offence if—

(a) the person at any time intentionally publishes any information that is relevant to any trial to which this section applies; and

(b) 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) in the case of an individual, to imprisonment for a term not exceeding 6 months or a fine not exceeding $25,000; or

(b) 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) 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

(b) 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

(c) 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

(d) 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 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 trialTop

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) the likely effect of the publication as a whole:

(b) the persons or groups of persons to whom the publication is likely to be made available:

(c) the medium in which the publication is presented and its potential accessibility and durability:

(d) the character of the publication, including the language and tone used in it:

(e) 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) 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:

(b) 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:

(c) information commenting on the credibility of the arrested person or any witnesses:

(d) information given at trial in the jury’s absence or information that has been ruled inadmissible at trial:

(e) 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.

Subpart 3 – Dealing with disruptive behaviour relating to court proceedings

Clause 16 – Judicial officer may cite person for disruptive behaviourTop

16 Judicial officer may cite person for disruptive behaviour

(1) This section applies if a judicial officer believes that any person is—

(a) wilfully disrupting the proceedings of a court; or

(b) wilfully and without lawful excuse disobeying any order or direction of the court in the course of the hearing of any proceedings.

(2) 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.

(3) 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.

(4) 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 behaviourTop

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) obtain legal representation; and

(b) apologise to the court.

(2) 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.

(3) 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).

(4) If the Judge sets down the matter for determination, he or she—

(a) must consider whether there are exceptional circumstances that warrant a different Judge hearing the matter; and

(b) 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

(c) 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) must not convict the person; but

(b) may—

(i) issue a warrant committing the person to imprisonment for a term not exceeding 3 months; or

(ii) 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 subpartTop

18 Further provisions applying for purpose of this subpart

(1) 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.

(2) 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.

(3) 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.

Subpart 4 – Provisions relating to juries

Clause 19 – Offence for jury member to investigate or research caseTop

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) during the trial period the person intentionally investigates or researches information relevant to the case; and

(b) does so when the person knows or ought reasonably to know it is or may be information relevant to the case.

(2) 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.

(3) 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.

(4) In this section,—

information relevant to the case means information about any of the following:

(a) the defendant:

(b) any other person involved in the events which are the subject of the case:

(c) any person involved in the trial, including a witness:

(d) the events that are the subject of the case:

(e) the law relating to the case:

(f) the law of evidence

investigate or research includes—

(a) ask a question or have a discussion (by any means) with a person who is not a jury member or the trial Judge:

(b) search any information source, including the Internet:

(c) visit or inspect a place or an object:

(d) conduct an experiment:

(e) ask another person to perform any of the actions listed above

trial period means the period that—

(a) begins when a jury has been constituted under section 19 of the Juries Act 1981; and

(b) 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.

Clause 20 – Offence to disclose jury deliberationsTop

20 Offence to disclose jury deliberations

(1) 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.

(2) It is not an offence against subsection (1) if, during a trial, the information—

(a) is sought by, or disclosed to, the court in the course of the performance of the jury’s functions; or

(b) 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) 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

(b) 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) in the case of an individual, imprisonment for a term not exceeding 3 months or a fine not exceeding $10,000:

(b) 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 dischargedTop

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.

(2) 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).

(3) The persons concerned are—

(a) the Solicitor-General:

(b) a Police employee:

(c) 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:

(d) a lawyer acting for the offender.

(4) 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.

(5) 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 enforcedTop

22 Certain court orders and undertakings may be enforced

(1) This section applies to—

(a) 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:

(b) 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) 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.

(3) The court may—

(a) either—

(i) 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

(ii) 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) the court order or undertaking being enforced has been made in clear and unambiguous terms and is clearly binding on the person; and

(ii) the person has knowledge or proper notice of the terms of the court order or undertaking being enforced; and

(iii) the person has, without reasonable excuse, intentionally failed to comply with the court order or undertaking being enforced; and

(b) 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 22Top

23 Further provisions applying for purpose of section 22

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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 courtTop

24 Offence to publish untrue allegation or accusation against Judge or court

(1) 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.

(2) A person who commits an offence against subsection (1) is liable on conviction,—

(a) in the case of an individual, to a term of imprisonment of less than 2 years or a fine not exceeding $50,000:

(b) 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) the allegation or accusation was true or not materially different from the truth; or

(b) 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) 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.

(5) In this section,—

court means any court, including a court as defined in section 4

Judge means a Judge of any court.

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 24Top

25 Further provisions applying for purpose of section 24

(1) This section applies if the Solicitor-General has reason to believe that a person may have committed an offence against section 24(1).

(2) The Solicitor-General may do 1 or more of the following:

(a) request the alleged offender to retract the allegation or accusation or apologise for it, or both:

(b) request the alleged offender to retract the allegation or accusation pending the hearing of the charge:

(c) 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:

(d) 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.

(4) 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.

(5) 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.

(6) Despite anything in the Criminal Procedure Act 2011 or the Search and Surveillance Act 2012,—

(a) the Solicitor-General may investigate whether a person has committed an offence against section 24(1) or may request the Police to do so:

(b) the Solicitor-General and the Police may exchange information for the purpose of an investigation:

(c) 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 ordersTop

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) take down, or disable public access to, material:

(b) retract the allegation or accusation:

(c) not encourage any other persons to engage in similar communications:

(d) publish a correction:

(e) publish an apology.

(2) The court may—

(a) make an order on an interim basis, pending the filing of a charging document:

(b) vary or discharge any interim order:

(c) make an interim order permanent if the interim order is accepted or a person is convicted of the charge.

(3) 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.

(4) 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) the content of the correction or apology:

(b) the time of publication of the correction or apology:

(c) the prominence to be given to the correction or apology in the particular medium in which it is published.

(5) 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.

(6) 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.

(7) 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 26Top

27 Offence to fail to comply with order under section 26

(1) A person commits an offence if the person knowingly or recklessly fails to comply with an order made under section 26.

(2) A person commits an offence if the person fails to comply with an order made under section 26.

(3) A person who commits an offence against subsection (1) is liable on conviction,—

(a) in the case of an individual, to a term of imprisonment not exceeding 6 months or a fine not exceeding $25,000:

(b) in the case of a body corporate, to a fine not exceeding $100,000.

(4) A person who commits an offence against subsection (2) is liable on conviction,—

(a) in the case of an individual, to a fine not exceeding $10,000:

(b) 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.

619Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) (explanatory note) at 56.
620Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [7.17].
621At [7.18].
622See [6.74] of the Report.