Chapter 5
Non-compliance with court orders

Related enforcement regimes

5.37Before discussing the issues with the current law, it is convenient to note the existing statutory enforcement regimes related to contempt. In respect of orders made in criminal proceedings, statutory enforcement regimes have almost completely replaced contempt as a means of enforcement.

Sentencing decisions

5.38The enforcement of all sentencing decisions is now statutory. Custodial and community-based sentences are enforced under the Sentencing Act. Fines and reparation orders are made under the Sentencing Act and enforced under Part 3 of the Summary Proceedings Act 1957.424 Under Part 3 a registrar or judge of the District Court may issue an attachment order or order seizing property where a person defaults and does not pay a fine or comply with an order for reparation.425 If those mechanisms do not prove effective at enforcing compliance with the original order, the registrar or judge may have the non-complying person arrested and brought before the court.426 A judge may then make an order imposing a substituted sentence of community work, home detention or imprisonment.427 Once the person has completed the new sentence, the original fine (or reparation order) is remitted.428

5.39Common law contempt of court therefore has no part to play in enforcing sentencing decisions.

Suppression ordersTop

5.40Suppression orders made in criminal proceedings under the Criminal Procedure Act are enforced under that Act. Although non-compliance with a suppression order made under the Act may technically be a contempt of court (because it involves a breach of a court order), the Criminal Procedure Act makes breach of a suppression order made under the Act an offence.429 The appropriate remedy is therefore prosecution under the Act, rather than contempt proceedings.430
5.41Where the courts have made suppression orders using their inherent authority or implied powers rather than statutory powers, contempt provides the only enforcement mechanism. As discussed earlier in chapter 2,431 the Supreme Court has confirmed that breaches of such orders constitute contempt.432 The current position is that enforcing suppression orders made under a court’s inherent authority or implied power is a matter for the common law of contempt, while suppression orders made under the Criminal Procedure Act are enforced by a prosecution under that Act.

Other offence provisions for non-compliance with court ordersTop

5.42For completeness, we mention there are several statutory regimes that have made it an offence for a person to fail to comply with court orders made under the regime. There are approximately 38 such offences and we have listed these in Appendix 1 to this Report. Non-compliance with a court order made under these statutory regimes may also technically be contempt of court as it involves a breach of a court order. We consider where an Act contains specific offence and enforcement provisions these should be used to enforce court orders made under the Act and contempt should not be used. Parliament enacted these statutory provisions specifically for that purpose, whereas contempt is a broad general remedy.

5.43As already noted, there is some uncertainty whether these different statutory offence provisions have fully replaced contempt.433 In Solicitor-General v Fairfax New Zealand Ltd a Full Court of the High Court took the view that the breaches of suppression orders should have resulted in criminal charges under the relevant statutory offence provisions rather than common law contempt proceedings.434
5.44Contempt may, however, remain available where it is not clear that statutory offences are explicitly or implicitly enacted in substitution for common law contempt. In a 2016 case in England, the High Court found two defendants who covertly took photographs in court and published those photographs guilty of contempt435 even though it was a statutory offence for any person to take pictures in court and publish them.436 The court in that case held that the conduct could still be prosecuted as contempt even though the statutory offence had been created to cover this conduct.437
5.45We return in chapter 7 to this issue whether the new offences should replace the common law of contempt.438
424Section 19 of the Crimes Act 1961 applies pt 3 to orders made in the High Court.
425Summary Proceedings Act 1957, s 87(2).
426Summary Proceedings Act 1957, s 88. See also R v Slavich HC Hamilton CRI–2006–419–000089, 6 August 2010 and 10 September 2010 and Slavich v R [2011] NZCA 457 (leave to appeal refused: Slavich v R [2011] NZSC 139). Although the operative provisions have since been changed, the case illustrates that the ultimate sanction remains one of imprisonment.
427Summary Proceedings Act 1957, s 88AE. A person can be imprisoned under the enforcement provisions even if the original offence was not one for which they could be imprisoned. The maximum period of imprisonment will depend on the original offence for which the person was convicted. If the original offence was not punishable by more than three months imprisonment, the maximum substituted sentence is three months. If it was punishable by more than three months the maximum is one year: see s 90.
428Summary Proceedings Act 1957, s 91.
429Criminal Procedure Act 2011, s 211. The Bail Act 2000 imposes publication restrictions on publication of matters relating to bail and matters dealt with at any bail hearing and it is an offence under that Act for any person to publish details of a bail hearing in breach of any specific prohibition ordered by the court: Bail Act 2000, s 19.
430Solicitor-General v Fairfax New Zealand Ltd HC Wellington CIV-2008-485-000705, 10 October 2008 at [135]–[138], though a different view has been taken in the United Kingdom: Solicitor-General v Cox [2016] EWHC 1241 (QB), [2016] 2 Cr App R 15. See discussion at [1.44] and [5.43]–[5.44].
431See chapter 2 at [2.36]‒[2.38].
432The majority of the Supreme Court have confirmed that where there is no statutory power available, the courts can use inherent powers to make any suppression order necessary to protect or uphold the administration of justice and protect the fair trial rights of an accused; Siemer v Solicitor-General [2013], above n 361, at [114] and [188].
433See chapter 1 at [1.44].
434Solicitor-General v Fairfax New Zealand Ltd, above n 430, at [135]–[138].
435Solicitor-General v Cox, above n 430.
436Criminal Justice Act 1925 (UK), s 41.
437Solicitor-General v Cox, above n 430, at [31].
438See chapter 7 at [7.19].