Chapter 3
Disruptive behaviour in the courtroom


3.13Contempt of court involving disruptive behaviour in the courtroom is subject to a summary procedure that is different from the process when a person is charged with a criminal offence.249 There is no formal charge and no formal plea. There is no independent prosecutorial scrutiny as there is when a criminal charge is laid. This reflects the fact that contempt allegations of this nature are generally dealt with quickly and with a minimum of formality.

3.14The contempt of court provision in the Senior Courts Act is section 165, which provides:

165 Contempt of court

(1) This section applies if any person—

(a) wilfully insults a judicial officer, Registrar, officer of the court, or any juror, or any witness during his or her sitting or attendance in court, or in going to or returning from the court; or

(b) wilfully interrupts the proceedings of a court or otherwise misbehaves in court; or

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

(2) If this section applies,—

(a) any constable or officer of the court, with or without the assistance of any other person, may, by order of a Judge or an Associate Judge, take the person into custody and detain him or her until the rising of the court; and

(b) the Judge or an Associate Judge may, if he or she thinks fit, sentence the person to—

(i) imprisonment for a period not exceeding 3 months; or

(ii) a fine not exceeding $1,000 for each offence.

(3) Nothing in this section limits or affects any power or authority of a court to punish any person for contempt of court in any case to which this section does not apply.

3.15As noted, this provision replaced the former contempt of court provisions, such as section 365 of the Criminal Procedure Act, and sits alongside a near-identical provision in section 212 of the District Court Act 2016.250 The provision provides that if a person’s actions are considered contempt of court, a Judge or Associate Judge may direct that he or she be held in custody until the rising of the court. In addition, the Judge or Associate Judge may impose a fine or period of imprisonment.

Issues Paper and consultation

3.16In the Issues Paper the Commission identified the procedure that the courts often, but not always, utilise whereby the judge deals with the disruption immediately by holding the disruptive person in contempt and imposing the punishment on the spot. The Commission expressed considerable unease with this situation because the judge imposes the punishment when there is likely to be high emotion in the courtroom. The judge “is required to simultaneously assume the role of complainant, witness, prosecutor and judge”.251

3.17The Commission also noted there has not always been consistency in imposing punishment. Some District Court judges have imposed relatively high sentences for contempt of court, which on appeal, have been reduced. For example:

3.18Since the publication of the Issues Paper, there has been a further example. In Forest v R the High Court on appeal reduced a six week sentence of imprisonment for contempt of court imposed on the brother of a defendant, following his outburst while the jury was delivering its verdict in his brother’s trial, to four weeks.256 The High Court characterised the offending as “more serious than that which is simply rude or disruptive in nature”, but reduced the sentence to better reflect the defendant’s attempts to make a genuine apology.

3.19These factors led the Commission to ask whether the proposed statute should provide for a procedure by which the judge has a cooling off period before punishing a person for contempt. We also invited submissions as to what the procedure should be.

3.20Among those consulted and those who made submissions on our Issues Paper, there was a consensus there should be a procedure for contempt of court that separated out the citation of the contempt from the process for determining contempt and imposing punishment. Citation is the notification given to the individual by the judge that their conduct is considered contempt, but it is not the final determination the conduct is contempt.

249McAllister v Solicitor-General, above n 235, at [44].
250These new contempt of court provisions have been modelled on, and closely follow the wording of s 365 of the Criminal Procedure Act 2011.
251McAllister v Solicitor-General, above n 235, at [44].
252Wanahi v R HC Hamilton CRI-2007-419-061, 3 May 2007.
253Pandey v Police HC New Plymouth CRI-2010-433-26, 15 December 2010.
254Kahu v New Zealand Police [2015] NZHC 1925.
255Matika v Police [2014] NZHC 1127. At the time the complainant was imprisoned for six weeks, she had a six week old baby who was being breastfed.
256Forest v R [2016] NZHC 3198.