Chapter 3
Disruptive behaviour in the courtroom


3.1Disruptive behaviour in the courtroom can “pose an immediate and direct threat to the due administration of justice”.234 When the behaviour of a person, who may be interrupting proceedings or refusing to comply with judicial directions in court, threatens the orderly and due disposition of court business, the presiding judge may have that person removed from the courtroom, held in contempt of court and punished by imprisonment or fine. Historically we know this as contempt in the face of the court.235 As Lord Denning MR put it in Morris v Crown Office:236

The phrase “contempt in the face of the court” has a quaint old fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is here in the courts. The course of justice must not be deflected or interfered with.

3.2People do not expect judges to hold someone in contempt of court for low level interruptions.237 Most everyday low-level interruptions are and should be able to be managed by other means. In some situations, the judge may be able to deal with the disruptive behaviour with a warning or by taking a short adjournment.238 Indeed, sometimes the threat of contempt is enough to allow the judge to retain or regain authority over his or her court. People also do not expect judges to use contempt of court to regulate criminal conduct, for example, assaulting or threating a judge or damaging court property. Assaults, threats and damage to property are offences that should be prosecuted and punished under the criminal law.239
3.3People also do not expect judges to use contempt of court to regulate tikanga Māori and the use of te reo Māori in the courtroom. In the Issues Paper the Commission identified that tikanga and the use of te reo Māori in the courts has not always been welcomed. We noted that in Mair v District Court at Wanganui the undertaking of a karakia (prayer), despite the District Court Judge’s directions not to, resulted in a finding of contempt by the Judge and the imposition of a prison sentence.240 We also mentioned Kohu v Police in which a District Court Judge found Māori defendants who wished to include tikanga in the courtroom to be in contempt and fined them heavily.241
3.4While the contempt authority or power was sometimes used in this way in the past, tikanga and te reo are recognised positively in courts today.242  Furthermore, the use of Māori is authorised by section 7 of the Te Ture mō Te Reo Māori 2016 Māori Language Act 2016.

3.5The comments on the Commission's Issues Paper provided by the Judges of the District Courts set out some of the more prominent initiatives that are underway in this area, which include: opening and closing of the courts in te reo, a revised tikanga education programme, use of pōwhiri at the swearing-in ceremonies of all new judges, and the establishment of the Kaupapa Māori Advisory Group, a judicial committee whose functions include promoting judicial understanding and application of tikanga Māori and ensuring judges are equipped to engage Māori court users with confidence. Similar developments are occurring in the Senior Courts too.

3.6We have deliberately moved away from using the historical term “contempt in the face of the court” and use instead “disruptive behaviour in the courtroom” because we think the latter better captures the concept.

234Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [34].
235McAllister v Solicitor-General [2013] NZHC 2217 at [24].
236Morris v Crown Office [1970] 2 QB 114 at 122B–C.
237Re Swaptronics [1998] All ER (D) 407 (Ch) at [20] per Laddie J – “it is all too easy for a court to be impressed by its own status”; SP Charles QC “Discipline within the Legal Profession” (paper presented to a meeting of the Medico-Legal Society, Melbourne, March 1977) at 82.
238Guidance for judges in the High Court also advises that it may be useful to turn a deaf ear and/or make an appeal to protesters to observe the dignity of the Court.
239See Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at [8.15] where the Commission concluded it would be preferable for assaults and threats to be dealt with by the ordinary criminal process rather than by way of contempt. The ordinary criminal process has the benefit of a trial and other protections that apply when someone is charged under the general criminal law. The Commission confirmed this position in 2015: Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC IP29, 2012) at [5.15]–[5.18].
240Mair v District Court at Wanganui [1996] 1 NZLR 556 (HC).
241Kohu v Police (1989) 5 CRNZ 194 (HC).
242Also note McGuire v Hastings District Council [2002] 2 NZLR 577 (PC) in which a Māori waiata was performed in the Privy Council at the end of the hearing to mark the occasion of The Right Honourable Lord Cooke of Thorndon’s last sitting at the Judicial Committee of the Privy Council.