Contents

Chapter 7
Inherent jurisdiction, prosecutions
and penalties

“Prosecution” procedure

7.23In this section of the chapter we discuss the prosecution procedure applying to the new statutory offences and whether we need any special arrangements for prosecuting these new offences.

7.24As discussed in chapter 1, contempt is currently not a true offence and there is no resulting conviction or criminal record, although contempt may result in a court imposing a criminal penalty. With the exception of disruptive conduct in the face of the court,600 contempt proceedings begin with an originating application, so are procedurally more akin to civil proceedings. They receive a civil file number in the court system and the rules of evidence that apply are the civil ones, although the standard of proof is the criminal one.

7.25The procedure used for contempt proceedings is characterised by the use of written rather than oral evidence, limited cross-examination and matters being proved to the judge’s satisfaction based on their own judicial knowledge and by taking judicial notice in light of their experience. Proceedings, except those for civil contempt, are generally brought in the name of the Solicitor-General, rather than by the Police Prosecution Service. As discussed in chapter 5, contempt applications can be made in civil proceedings by any party to those proceedings where a court order made in that party’s favour is not complied with.

7.26In situations where there is disruptive conduct in the face of the court courts can, as we discussed in chapter 3, act on their own motion and deal with the contempt in the context of the proceedings already before the court.

7.27We have recommended in the previous chapters (chapter 2 – Publication contempt, chapter 4 – Juror contempt, and chapter 6 – Abusive allegations and false accusations against judges and courts) the introduction of new offences to replace contempt. This will result in the ordinary criminal prosecution procedure replacing current contempt procedure. If no special arrangements are made, the new offences would be prosecuted in the usual way by the Police under the Criminal Procedure Act 2011. The new offences are all category 1 and 2 offences so would be prosecuted in the District Court. The defendant charged with a category 1 or 2 offence has no right to elect to be tried by a jury.601

Proposals in Issues Paper

7.28The Issues Paper outlined two options for prosecuting the new statutory offences. These were:

(a) The new offences should be prosecuted in the usual way in the District Court under the Criminal Procedure Act; or

(b) A special procedure should be developed for them that continued to require an application by the Solicitor-General.

7.29The Commission suggested it might also be appropriate for a different process to apply to different statutory contempt offences, depending on the nature of the offence. For example, contempt in the courtroom would need to have a special procedure to enable the court to respond immediately, while the ordinary prosecution procedure might be appropriate for the new offences that replace other forms of contempt, such as the contempt of prejudicing a fair trial.

The option of applying the ordinary procedure

7.30If the new offences are prosecuted in the same way as other criminal offences, the Police would file a charging document in the District Court. The procedural protections specified in the Criminal Procedure Act would apply in the usual way and so would the criminal rules of evidence. Under this option, a conviction would result in a person having a criminal record.

7.31The Commission suggested the Solicitor-General or a Crown Solicitor could prosecute offences related to business in the higher courts in the High Court, with all other offences being referred by the Police to the District Court. Offences relating to business in the higher courts could be included in the Protocol established by the Chief High Court Judge and the Chief District Court Judge identifying cases that must always be considered for transfer to the High Court.602

7.32Replacing contempt with ordinary offences is consistent with earlier codifications of contempt in the provisions in Part 6 of the Crimes Act (Crimes affecting the administration of law and justice).

7.33To be effective, however, these new offences would need to receive greater priority by prosecution authorities than they currently give to offences in Part 6 of the Crimes Act 1961. The new offences, like those currently in Part 6 of the Crimes Act, are constitutionally important because they uphold the fair administration of justice and the rule of law.

The option of a special procedure

7.34The other option, which the Commission noted but did not fully develop in the Issues Paper, would be to provide for a special procedure for contempt that enabled a judge-alone hearing brought on application by either the Solicitor-General or Crown Counsel. The special procedure could be similar to the current approach to contempt, where proceedings are commenced with an originating application. The Court would need to consider whether a finding of contempt would result in a conviction that would be recorded on the offender’s criminal record. Under this option Parliament would also need to consider whether the full range of sentencing options under the Sentencing Act 2002 should be available. It would need to resolve the question whether the court should be able to act of its own motion.

The views of submitters and feedback from consultationTop

7.35On the question of prosecution process, the NZLS favoured placing responsibility for prosecutions in the hands of Crown Solicitors, rather than the Police, because this appropriately recognised the importance of the offence of contempt. The NZLS did not think it should be necessary to require the approval of the Solicitor-General for a prosecution. The Auckland District Law Society Incorporated also favoured the Crown Solicitors prosecuting rather than the Police.

7.36The Police submission did not consider a special procedure was needed for contempt on the basis that it was better to be consistent and have a predictable process. It proposed that the Crown prosecutor should prosecute in the High Court and the Police in the District Court.

7.37Some submitters saw the application of the criminal justice protections that would result from a shift to prosecution as a positive outcome for those facing charges. An accused person would receive proper details of the offence he or she was charged with and have an opportunity to seek legal advice and be represented in court. Some submitters were concerned, however, about the potential effect a conviction would have on a person.

7.38Finally, submitters noted there were practical and resourcing implications in applying the criminal prosecution process and sentencing process to contempt. Submitters said the Crown or the Police would need to be properly resourced if they were to prosecute. The District Court judges commented that proceedings would be prolonged by applying the criminal prosecution and sentencing processes and would, as a result, involve greater application of judicial resources.

Recommended approachTop

7.39We have decided not to recommend that all contempt be replaced by ordinary statutory offences. In particular, and as discussed in more detail in chapter 3 and chapter 5, we are recommending, for the reasons set out in those chapters,603 that disruptive behaviour in the courtroom and non-compliance with a court order should continue to be subject to a special quasi-criminal procedure rather than be an ordinary criminal offence prosecuted under the Criminal Procedure Act.

7.40The approach we recommend in relation to disrupting the courtroom addresses concerns raised by submitters and recognises the unique context surrounding this type of contempt. The criminal justice protections outlined in that chapter would be applied as part of that process to ensure that the disruptive person should have proper details of the offence he or she is charged with, and an opportunity to seek legal advice and be represented in court.

7.41In respect of contempt involving non-compliance with a court order, we recommend in chapter 5 retaining a special quasi-criminal procedure (largely reflecting the current position). Under that procedure the party in whose favour the order was made, or the Solicitor-General exercising Law Officer functions, may apply to the courts for an order that the person who has breached the order be found to be in contempt of court for failing to comply with the applicable court order. Again, criminal justice protections would apply as part of that process to ensure that the person has proper details and an opportunity to seek legal advice and be represented in court.

7.42With the exception of those two special cases, we recommend the other forms of contempt covered by this Report be replaced with new criminal offences. Within this broad recommendation, a number of more detailed issues have needed to be considered and resolved:

(a) Whether these new offences, when they involve behaviour directed at the senior courts, should be removed from the District Court to the High Court. For example, where a publication interferes with a fair trial in the High Court the prosecution of the alleged offender would be heard in the High Court not the District Court.

(b) Whether the Solicitor-General, rather than the Police, should be responsible for receiving complaints and determining whether there is sufficient evidence for laying a charge in respect of any of the new offences. The alternative would be for the Police to receive complaints, undertake its usual investigative role, assess the evidence and then lay charges in the usual way.

(c) Whether prosecution of the new offences should always be undertaken as Crown prosecutions handled by the Crown prosecutors. Alternatively, the Police would undertake some prosecutions of some of the new offences.

Should the new offences, when they involve behaviour directed at the Senior Courts, be heard by the High Court?

7.43Currently the District Court does not have power to deal with certain contempts, such as disclosure of juror deliberations, publication contempt or scandalising the judiciary because it has no inherent jurisdiction. Consequently, when these contempts arise, even when they relate to proceedings in the District Court, the High Court deals with them. If a special case is not made for the recommended new offences this situation would effectively reverse and the District Court would not only deal with contempt in the District Court, but would also hear and determine cases relating to contempt in the High Court, Court of Appeal and Supreme Court, as well as other specialist courts.

7.44We are concerned that this role reversal might create the perception that the High Court does not retain control over its own processes during a trial. We consider it essential that the High Court retains control over, and is able to enforce compliance with its own processes. We therefore recommend that when the new offence of publishing information poses a real risk of prejudice to a fair trial in the High Court and also when the juror offences relate to a High Court jury trial, the prosecution should be removed (transferred) to the High Court. The District Court should determine charges in respect of offences where they relate to jury trials in the District Court.

7.45In relation to the new offence of publishing false allegations or accusations against a judge or the courts that risk undermining confidence in the judiciary, we recommend prosecutions should be transferred to and heard in the High Court. As already discussed, only the High Court currently has authority under its jurisdiction to punish the contempt of scandalising, which this offence is to replace. The High Court’s authority also extends to upholding the authority of lower courts and tribunals. Subject to any qualification by statute or statutory rule, the High Court has authority to punish for contempt of another court’s processes in order to enable that court to act effectively as a court.604 We consider it important for the High Court to retain this role in respect of protecting the independence, integrity and impartiality of the courts and court processes, and the rule of law.
7.46We have included an express provision in schedule 2 to the draft Administration of Justice (Reform of Contempt of Court) Bill to address the transfer of proceedings to the High Court.605 The amendment provides that a new section (section 74A) will be inserted into the Criminal Procedure Act covering transfer of cases to the High Court.

Should the Solicitor-General be responsible for deciding whether to prosecute?

7.47If Parliament accepts our proposals to enact these various new offences, it will also be necessary to determine whether the Solicitor-General, Crown Prosecutors or the Police (or a combination of them) should have responsibility for investigating and prosecuting the offences.

7.48The Solicitor-General currently has responsibility for deciding whether to prosecute and commence proceedings for all the forms of contempt we have recommended should be replaced by new offences. Crown Law receives and assesses complaints, makes inquiries and then determines whether there is sufficient evidence for commencing contempt proceedings at common law. The issue is whether the change to having criminal offences is more one of form than of substance.

7.49After discussing the issue with the Solicitor-General and the Police, we have formed the view the Solicitor-General should be responsible for receiving and investigating complaints and laying charges for the new offence of publishing false accusations undermining confidence in the judiciary. The Police, however, should investigate and charge in the usual way the new offence in chapter 2 of publishing information that poses a real risk of prejudice to a fair trial, and the two new offences recommended in chapter 4 relating to juror conduct. The Police should also prosecute breaches of the new suppression and take down order offences recommended in chapters 2 and 6.

7.50We have considered the extent to which the Crown Law Office and the Crown Solicitors on behalf of the Solicitor-General are able to undertake the investigative inquiries necessary to gather evidence for a criminal prosecution. While the Solicitor-General does not, for example, have any compulsory powers of search, we believe that the Solicitor-General does have sufficient powers to undertake any necessary investigation to assess the sufficiency of the evidence in respect of the new offences of publishing false accusations undermining confidence in the judiciary. The nature of the offending conduct means the evidential material will mainly be in the public domain. The Police will also be available to assist where compulsory powers of search are needed.606

7.51More importantly, the Attorney-General and Solicitor-General have constitutional responsibility for upholding the rule of law. This responsibility includes protecting the judiciary from unfounded public attacks. See also chapter 6 at [6.87] to [6.89] where we discuss the reasons why the offence of publishing allegations undermining confidence in the judiciary should be prosecuted by the Solicitor-General.

7.52The Solicitor-General currently has responsibility for prosecuting the common law contempt of scandalising. Maintaining the status quo should impose no additional burdens (staffing or budgeting) on Crown Law. On the other hand, shifting responsibility for investigating and prosecuting offences to the Police does impose burdens (both staff training and budgetary) on it.

7.53We have therefore recommended the Solicitor-General should be responsible for investigating any complaint and laying charges for the new offence of publishing allegations undermining confidence in the judiciary. The Solicitor-General has agreed that this is appropriate.

7.54In respect of the new publication offence, the new juror offences and also the new breach of suppression order offences, we accept that the Solicitor-General and the Crown Law Office is not well placed to investigate these. The lack of any compulsory powers of search that the Police have for gathering evidence by obtaining production orders, search warrants or seizing material would hinder their work. The better option is to refer complaints to the Police for investigation in the ordinary way. The Police currently investigate and prosecute breaches of suppression orders. We recommend that the Police investigate and charge these new offences (as the Police proposed in its submissions to us). We note that shifting responsibility for investigating and prosecuting in this area to the Police does impose burdens (both staff training and budgetary) on the Police.

Should prosecutions be Crown prosecutions?

7.55The Commission has considered whether prosecutions in respect of all of the new offences should be undertaken as Crown prosecutions handled by the Crown Prosecutors rather than the Police Prosecution Service.

7.56The Crown Prosecution Regulations 2013 provide that certain proceedings will automatically be Crown prosecutions for the purposes of the Criminal Procedure Act.607 The regulations also provide the Solicitor-General may direct that, having regard to the particular features of the proceedings, a prosecution should be conducted as a Crown prosecution.608 Under the regulations once a proceeding becomes a Crown prosecution, the Solicitor-General assumes responsibility and a Crown Prosecutor takes over the case.609
7.57Given our earlier recommendations that the Solicitor-General should be responsible for initiating prosecutions and laying charges for the new offence of publishing false accusations undermining confidence in the judiciary, we recommend that this offence be listed in the Schedule to the regulations so prosecution is undertaken as a Crown prosecution.610 We recommend that the offence of publishing information that poses a real risk of prejudice to a fair trial should also be listed in the regulations and prosecutions undertaken as a Crown prosecution. We do not consider it necessary to list the new juror offences or the breach of suppression or take down order offences. In relation to these offences, the Solicitor-General could direct under the regulations that the prosecution be a Crown prosecution if, having regard to the particular features of the proceeding, it is appropriate that it be conducted as a Crown prosecution.611

7.58The Commission has consulted with both the Solicitor-General and the Police before settling these recommendations.

600The procedure used by the court where a judge has to deal with disruptive conduct in the face of the court or during the course of any proceedings before the court is discussed in chapter 2.
601Criminal Procedure Act 2011, s 6 states that:
category 1 offence means—

(a) an offence that is not punishable by a term of imprisonment

category 2 offence means—

(a) an offence punishable by a term of imprisonment of less than 2 years; or

(b) an offence that, if committed by a body corporate, is punishable by only a fine, but that would be punishable by a term of imprisonment of less than 2 years if committed by an individual; or

(c) an offence punishable by a community-based sentence and not punishable by a term of imprisonment.

602This would be in accordance with the protocol established under s 66 of the Criminal Procedure Act 2011.
603See chapter 3 at [3.45]–[3.48] and chapter 5 at [5.60]–[5.62].
604See discussion in chapter 1 at [1.15].
605The alternative would be for the Protocols authorised under s 66 of the Criminal Procedure Act 2011 to cover the transfer. Section 66 provides that the Chief High Court Judge and the Chief District Court Judge must establish a protocol covering the level of trial court for certain offences. They may also specify other specific offences to be covered by the protocol. There is a process in ss 67 and 68 for deciding what level of court should apply in respect of those offences. Ultimately a High Court Judge must determine whether the trial of a protocol offence is to be held in the District Court or the High Court and make an order accordingly.
606Clause 25(6) of the attached draft Administration of Justice (Reform of Contempt of Court) Bill.
607Regulation 4(1)(a)–(d).
608Regulation 4(1)(e).
609Regulation 5.
610Under the regulations a proceeding that is transferred to the High Court, even if not listed in the Schedule, is also a Crown proceeding; see Crown Prosecution Regulations 2013, reg 4(1)(d).
611Any juror offence transferred to the High Court will also be a Crown prosecution under reg 4(1)(d) of the Crown Prosecution Regulations 2013.