Chapter 3
Disruptive behaviour in the courtroom

Current guidance

3.21We 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.

3.22Mr 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] … 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.

[46] 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.

[47] 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.

3.23To 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.

3.24In 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.

257McAllister v Solicitor-General, above n 235. The Court of Appeal dismissed an application for leave to appeal: McAllister v R [2014] NZCA 175.