Chapter 3
Contempt in the face of the court

Tikanga, diversity and contempt

3.13In preliminary consultation discussions, the issue of Māori tikanga in the court environment being classed as a contempt of court was raised with the Commission.

3.14Tikanga and the use of te reo Māori in the courts has not always been welcomed. In Mair v Wanganui District Court,65 the undertaking of a karakia (prayer), despite the judge’s directions not to, resulted in a finding of contempt by the judge and the imposition of a prison sentence. So too in Kohu v Police,66 a District Court Judge found Māori defendants who wished to include tikanga in the courtroom to be in contempt and they were fined heavily.

3.15Today, there has been some movement in the recognition of tikanga and te reo by judges, but there is still more that could be done to acknowledge their importance to Māori participants in court and to reduce the likelihood of contempt becoming an issue in the courtroom.

3.16Every Family Court across the country now opens each day with the following words:

Turituri mō tōnā Hōnore te Kaiwhakawā, taki tū.

Kua tūwhera te Kōti ā Whānau.

Silence for His/Her Honour the Judge. All stand.

This Family Court is now open.

3.17A similar opening is replicated in each District Court and each division of the District Courts (with variations to describe accurately the particular court in question).

3.18When a District Court adjourns at the end of the sitting day, the registrar says:

Turituri, taki tū. Kua hiki te Kōti.

Silence. All stand. The Court is adjourned.

3.19This use of te reo was introduced by the Heads of Bench in the District Courts to reinforce the importance of tikanga and to properly recognise section 4 of the Māori Language Act 1987, which provides for the right to speak Māori in legal proceedings.

3.20New Zealand’s multiculturalism and the need to embrace diversity are well illustrated in the results of the 2013 census on ethnicity, which provides that 14.9 per cent of the population is Māori and 7.4 per cent of the total New Zealand population are Pacific peoples.67 It is therefore unsurprising that the Commission is looking at the importance of judges creating a court environment where participants feel their traditions are being respected.

3.21Courts will, of course, attract insults, outbursts and interruptions. The hurly-burly of the District Courts’ criminal lists, in particular, will invariably result in raised emotions, frustrations and times when a judge’s patience is sorely tested.

3.22For the most part, judges are able to avoid formal use of the power to invoke contempt. As a result of discussions with a number of judges in different courts, we believe that, generally, there is a high threshold to be met before a judge regards behaviour as sufficiently unacceptable so as to require a formal response.

3.23We think it helpful to explore behaviour that might appear at first blush to be interrupting or a type of misbehaviour but, in a cultural context, should not be seen that way at all.

3.24A clear and understandable tension exists between the efficient disposition of court work on the one hand and the exercise of sufficient due process so as to ensure that everyone appearing in a court feels that they have been treated with dignity and have been listened to on the other. Naturally, judges vary in their boundaries and some may regard reducing delay and resolving the day’s cases quickly as the single most important consideration.

3.25However, for many Māori, process is as important as outcome. A court appearance is not seen as a “business transaction” but rather as an event that requires proper protocol and observance of appropriate steps. Māori are not alone in this respect. For Pacific peoples, recognition of those in authority to prepare the way for what follows may be a crucial part in the process. For Māori and Pacific peoples, the attention paid to such things at the outset is designed to bring about mutual respect and to “settle” those present in readiness for the formalities to follow.

3.26In the Māori Land Court, it is assumed that, at the outset of the Court’s business, there will be a karakia and a mihi whakatau (formal welcome). Equally, most Māori judges encourage the use of such tikanga where it seems right and proper, for instance, in parts of the country where there is a significant Māori population and where Māori might constitute a fair proportion of those attending court for the day.

3.27In contemporary New Zealand, where te reo is recognised as an official language and where its use is accepted and supported in Parliament, it might be thought that the wish to observe tikanga and use the Māori language in our courts could be taken for granted, but that is not always the case.

3.28It is understandable why non-Māori speaking judges might have a great deal of apprehension at allowing processes to be undertaken in relation to a court over which they preside but over which they may not have full control.

3.29The Commission considers judges should be encouraged to have a greater understanding of tikanga and the use of the Māori language so they feel more confident in accommodating elements of tikanga in their courtrooms.

3.30By its very nature, the concept of contempt conjures up a notion of one party disrespecting another sufficiently as to cause a real concern. It is right and proper that a judge requires non-interference with the administration of justice, but so too should a judge have respect for the culture and thereby the dignity of those appearing before the judge on the day. In other words, justice is best served if there is mutual respect.

3.31It has been said to us, in the case of Māori, that it may well be more efficient for the conduct of the court’s business if a “settling” occurs at the outset. If Māori litigants understand that they will be listened to, the ensuing process is bound to be less fractious. There is, of course, a difference between being listened to and being agreed with.

3.32In view of the very wide way in which contempt of court is expressed and the fact that, in the past, recourse to culture has not always been welcomed by judicial officers, it would be helpful if judges were trained to encourage the incorporation of culture in the courtroom and to recognise that reasonable attempts by participants to do so should be outside the scope of contempt of court.

3.33There will be practicable considerations that must be taken into account however. At times, a compromise will need to be struck between the time ordinarily taken up by the speaking of a karakia and mihi whakatau and the available time the judge has to undertake the day’s business, but where there is no tension in this respect, we would like to think that, as in the Māori Land Court, karakia and mihi whakatau will be seen as acceptable in all courts.

3.34We acknowledge that some judges will feel more comfortable with this than others and that, until the Māori language becomes more known and used, some judges may be anxious that an abuse of process is occurring, especially when time begins to be consumed.

3.35Judges too must feel sufficiently confident to interrupt when they take the view that reasonable time has been used. Interruption should not be seen as culturally insensitive. Having registrars who are well versed in Māori language and tikanga would assist with this.

Questions

Q1 Do you think that contempt in the face of the court provisions in courts legislation should separate the need to deal immediately with an in-court interruption from the process of punishing a person for that disruptive behaviour?
Q2 If so, what should the procedure be?
Q3 Do you agree that all courts should open and close with directions in both English and Māori?
Q4 Do you think judges should be encouraged to allow a short introduction/mihi whakatau or prayer/karakia by the key participants in their courts?

65Mair v District Court [1996] 1 NZLR 556 (HC).
66Kohu v Police (1989) 5 CRNZ 194 (HC).​
67Statistics New Zealand “2013 QuickStats about national highlights” (December 2013) <www.stats.govt.nz> at 14.