Chapter 1

Why is contempt of court important?

1.27Public 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.

1.28Some 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.

1.29But 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.

1.30Although 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.

1.31The 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) impartial courts will hear and determine court proceedings, both criminal and civil;51
(b) 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
(c) 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
(d) except in unusual circumstances, proceedings will be open to the public and news media.54
1.32To 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 to a fair trial, affirmed by NZBORA, may justify orders of this nature taking priority over the right to freedom of expression.55
1.33The 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.
1.34Courts 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
1.35It 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 …

1.36By protecting the administration of justice and maintaining public confidence in the justice system, contempt of court plays a crucial role in our justice system.

50The 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.
51New Zealand Bill of Rights Act 1990, ss 25 and 27.
52Discussed in chapter 4 at [4.5]–[4.10].
53For 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”.
54The 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].
55Siemer v Solicitor-General [2010], above n 4, at [37]; and Siemer v Solicitor-General [2013], above n 10, at [158].
56Siemer v Solicitor-General [2010], above n 4, at [26]–[27].
57Murray 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.
58See 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].
59Solicitor-General v Radio New Zealand, above n 20, at 53.