Chapter 3
Contempt in the face of the court

Review of the Judicature Act 1908

3.3In the Law Commission’s review of the Judicature Act 1908,50 the Commission looked at several statutory contempt in the face of the court provisions governing the High Court, Court of Appeal, Supreme Court and District Courts. The Commission noted that, on the whole, litigation in New Zealand courts proceeds in a temperate and appropriate way. Although the subject matter of litigation can be highly charged, there are few outbursts in court. However, there will always be exceptional cases, and courts need powers to deal with them immediately. The Commission recommended there be a generic provision in new courts legislation based on section 365 of the Criminal Procedure Act 2011, rather than the wider Crimes Act 1961 and Judicature Act 1908 provisions.51
3.4The Commission said counsel and judges – understandably burdened with an already difficult body of law – were sometimes inclined to proceed on the basis that they could rely on the inherent jurisdiction or a statutory provision in a contempt in the face of the court situation.52 In the Commission’s view, it was not intended that the court could still use its inherent jurisdiction to hold people in contempt when the matter already falls within the scope of a contempt in the face of the court section.53 The Commission said the new legislative provision should clarify that it extinguishes the common law powers relating to contempt in the face of the court but that all other common law contempt powers remain untouched by the provision.
3.5In concluding that a relatively narrow contempt in the face of the court provision based on section 365 of the Criminal Procedure Act was appropriate, the Commission noted that assaults and threats (included in other contempt in the face of the court provisions)54 are offences that may be prosecuted and, if proved, punished under the criminal law.55 In the Commission’s view, it would be preferable for those matters to be dealt with by the ordinary criminal process rather than by way of contempt. Otherwise, a person who assaults a juror or witness, for example, could potentially be taken into custody, imprisoned or fined without the benefit of a trial or any of the other protections that would attach if he or she were charged under the general criminal law.56
3.6The Commission said if there is a generic contempt in the face of the court provision in new courts legislation, there would be no need for section 365 of the Criminal Procedure Act.57 A broad provision, applying in all courts, could adequately deal with contempt in the face of the court in criminal as well as civil proceedings.
50Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012).
51At [9.10].
52Law Commission Review of the Judicature Act 1908: Towards a consolidated Courts Act (NZLC IP29, 2012) at [5.20].
53At [5.19].
54For example, the then s 401(1) of the Crimes Act 1961 and s 56C of the Judicature Act 1908.
55Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 52, at [5.18].
56See Law Commission Suppressing Names and Evidence (NZLC R109, 2009) at 70.
57Review of the Judicature Act 1908: Towards a New Courts Act, above n 50, at [9.6].