Contents

Chapter 1
Introduction

Why law reform is needed

1.37No-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of the law of contempt of court, but at the same time there have for many years been suggestions that the law is outdated and confusing and should be clarified and modernised.60 There have also been suggestions it should be completely, or at least substantially, codified in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

1.38These calls for reform reflect a number of significant problems and issues with the accessibility, understandability and workability of the law today.

Accessibility

1.39The 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.
1.40At 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

1.41The 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.

1.42Given 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.

1.43The 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.

1.44There 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

1.45The 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.

1.46The antiquated language and technical legal meaning of several expressions used in the law of contempt create further problems today:

1.47With 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.

1.48Some have also called for the historical forms of legal contempt, such as scandalising, to be abolished.73

Workability

1.49In 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.

1.50The digital age now sees:74

1.51The 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.

1.52These developments have had a significant impact on the law of contempt of court. For example:

1.53Practical 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

1.54Courts 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

1.55While, 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.

1.56Currently, 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 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

1.57A 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?

1.58Contempt 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.

1.59On 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
1.60In 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.

1.61Consequently, 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.

1.62Codifying the law of contempt today would therefore bring contempt into line with every other criminal offence in New Zealand.

1.63From 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 should encourage public acceptance of the laws and may, ultimately, give rise to greater public confidence in the administration of justice.

Other relevant developmentsTop

1.64Other 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

1.65The 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
1.66At 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
1.67The 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.

1.68The 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

The importance of open justice

1.69The 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

1.70The 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

1.71A 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
1.72In 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.
1.73In 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.
1.74In 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 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

1.75In 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
60Lord 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] 2 NZLR 556 at [116].
61Law Reform Commission of Canada, above n 60; Australian Law Reform Commission, above n 60; and Law Reform Commission of Western Australia, above n 60.
62See Tom Bingham The Rule of Law (Penguin, London, 2011) at ch 3.
63Gisborne Herald Co Ltd v Solicitor-General, above n 21, at 574; and Siemer v Solicitor-General [2013], above n 10, at [158].
64Solicitor-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].
65Solicitor-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].
66Tony 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.
68New Zealand Oxford Dictionary, above n 66, at 379.
69Eady and Smith Arlidge, Eady and Smith on Contempt, above n 1, at [10-2].
70Laws of New Zealand Contempt of Court (online ed) at [8].
71New Zealand Oxford Dictionary, above n 66, at 1005.
72Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA) at 231.
73We discuss this in chapter 6 at [6.37].
74The Nielsen Company Media Trends 2016: How New Zealanders consume newspapers, magazines, TV, radio and digital content (The Nielsen Company, 2016).
75Police 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.
76Attorney-General v Dallas [2012] EWHC 156 (Admin); Dallas v United Kingdom (2016) 63 EHRR 13 (ECHR). Discussed at [4.17] and n 321 below.
77R v Bonacci [2015] VSC 121; La Rue v Ministry of Justice Collections Unit [2016] NZHC 666.
78Attorney-General v Davey [2013] EWHC 2317 (Admin).
79Solicitor-General v Cox, above n 65.
80Blomfield v Owner and/or Administrators of www.laudafinem.com [2016] NZHC 2425.
81See 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.
82Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union, above n 18, at 616.
83Criminal Code Act 1893, s 6.
84The 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) 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] 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].
86Crimes Act 1961, s 9; discussed above at [1.9].
87Joseph, above n 9, at 228.
88For a full historical account, see Eady and Smith Arlidge, Eady and Smith on Contempt, above n 1, at ch 1.
89Siemer 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) 19 CRNZ 119 (CA) at [7]; Gisborne Herald Co Ltd v Solicitor-General, above n 21, at 571 and 575.
90Ursula Cheer Burrows and Cheer: Media Law in New Zealand (7th ed, LexisNexis, Wellington 2015) at ch 9.
91Siemer v Solicitor-General [2010], above n 4, at [24]–[25]; Siemer v Solicitor-General [2013], above n 10, at [158]–[159] and [229].
92Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (Yale University Press, New Haven, 2016) at 297.
93Siemer v Solicitor-General [2013], above n 10, at [173].
94Cheer, above n 90, at 589.
95Cheer, 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>.
96L v R [2015] NZCA 279, [2016] 2 NZLR 21 at [24].
97Gisborne Herald Co Ltd v Solicitor-General, above n 21, at 571.
98Siemer v Solicitor-General [2013], above n 10, at [158]–[159]; L v R, above n 96, at [25].
99The 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.
100See chapter 2 below at [2.7].
101See ATH Smith “Repositioning the law of contempt: the Criminal Justice and Courts Act 2015” [2015] Crim L Rev 845 at 849.
102David 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.
103The 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.
104Irish Bank Resolution Corp Ltd v Quinn [2012] IESC 51 at [32] per Hardiman J dissenting.
105Law 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>.
106Siemer v Solicitor-General, above n 60, at [116].
107Siemer 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]
108Siemer 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].
109Siemer v Attorney-General [2016] NZCA 43, [2016] NZAR 411 (leave to appeal to Supreme Court declined: [2016] NZSC 75).