Chapter 6
Scandalising the court

What is “scandalising”?

6.3The first real articulation of the contempt appears in the judgment of Wilmot J in the English case of R v Almon, where the contempt of scandalising was described as:232

An impeachment of the [King’s] wisdom and goodness in the choice of his judges, [and which] excites in the minds of his people a general dissatisfaction with all judicial examinations, and indisposes their minds to obey them …

6.4Interestingly, Wilmot J’s judgment was never actually delivered, so the contempt somewhat controversially originated in a draft judgment that was subsequently cited as authority by the courts.

6.5The classical description of the contempt, which is still referred to today, is that of Lord Russell of Killowen CJ in R v Gray:233

Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority.

In R v Gray, the offending article published at the end of a trial referred to the judge as “an impudent little man in horse hair, a microcosm of conceit and empty-headedness”.234 The editor of the paper, Gray, apologised and was fined £1000 for “personal scurrilous abuse of a judge as a judge”. Were it not for his apology, the Lord Chief Justice said Gray would have been sent to prison “for a not inconsiderable period of time”.235
6.6Essentially, the contempt comprises “scurrilous abuse” of a judge as a judge or of a court or attacks upon the integrity and impartiality of a judge or court. The word “scurrilous” is no longer in common usage but is defined in the Concise Oxford Dictionary as “grossly or indecently abusive”.236
6.7The courts frequently note that the offence of scandalising exists to protect the proper functioning of the court, not the dignity or hurt feelings of individual judges.237
6.8Not every criticism of a judge amounts to a contempt. Lord Atkin set out the parameters of the contempt in Ambard v Governor-General for Trinidad and Tobago (Ambard) by saying that:238

[N]o wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path to criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely expressing a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

6.9In Ambard, the Privy Council found that an article criticising apparently discrepant sentences was not a contempt, despite containing strong criticism of the judge.

New Zealand authorities

6.10In Attorney-General v Blomfield (Blomfield),239 the existence of the scandalising jurisdiction in New Zealand was questioned by some of the judges in light of an earlier statement by Lord Morris in the Privy Council decision of McLeod v St Aubyn that committals for contempt of court by scandalising the court had become obsolete.240 Denniston J in Blomfield described the offence of scandalising as being “wholly inconsistent with the trend of modern ideas”.241 ​However, the majority of the Court held, and subsequent decisions have confirmed, the contempt is indeed part of New Zealand law, and the High Court has inherent jurisdiction to commit and punish a person for the contempt of scandalising the Court.242
6.11In the 1953 decision of Attorney-General v Butler (Butler), Fair J, in what was then the Supreme Court, described the essence of the offence of scandalising and its rationale as follows:243

It has long been recognized that the Courts of Justice should be subject to the freedom of criticism which is a necessary accompaniment of the freedom of speech which is the right of all free men. The public interest requires that the right of free speech should not be restricted except where circumstances necessitate it. But there must be some limitation: … So far as the Courts are concerned, any publications which are calculated, or have a tendency, to impair confidence in the rule of law, and the Courts charged with their administration, constitute contempt of Court unless they are made in temperate and reasonable language appropriate to a proper respect for Courts as institutions established to administer the law in the interests of order, and the good government of the country. Extravagant and inflammatory language, calculated not only to incite disapproval of particular decisions, but also to shake confidence in the Courts themselves, and provoke discontent and ill-feeling, is considered so plainly contrary to the public interest as to constitute an offence calling, in proper cases, for the application of the summary power of punishing for contempt, which … is to be used sparingly and only in serious cases. Criticism may be strong and forceful, but it is not to be couched in the language of abuse and invective.

6.12In Butler, the defendant had published a circular letter to branches of the Union of Workers, the Court, several ministers and the Secretary for Labour and Employment, following the making of a new award by the Court of Arbitration. The letter said:244

[T]his is a travesty of justice and will naturally cause resentment against the manner in which the Court of Arbitration applies the principles of the Arbitration Act. … Recent decisions of the Court … of which the present is typical, ruthlessly disregard the rights of employees to a fair standard of living and are important factors in creating in the minds of the workers a sceptical disregard of justice as administered by the Court.

The Court found that the letter was a contempt; however, no penalty was ordered.245
6.13In Solicitor-General v Radio Avon Ltd,246 the Court of Appeal held that a scandalising contempt could not be proved unless the facts of the case establish beyond reasonable doubt that there is a real risk, as opposed to a remote possibility, that the objectionable conduct would undermine public confidence in the administration of justice.

6.14There is no requirement that, as a result of the statements, the administration was in fact undermined or discredited, and it is difficult to conceive how empirical proof of this could be obtained. The size of the audience and the likely nature, impact and duration of the influence of the statements will be relevant to the assessment of whether there is a risk of undermining public confidence. The identity of the person making the statement will also be relevant.

6.15With regard to the mental element of the offence, it seems there must be a voluntary publication, and the publisher must know that the publication contained the allegations in question and that the allegations reflect on the court.247
6.16In a recent case dealing with the offence of scandalising, the defendant had described Penlington J in an application for leave to appeal to the Court of Appeal as “prejudiced, biased, one-sided, even criminal”.248 He said further that the Judge had “turned the Hamilton High Court into a public toilet, defecating on the principles of justice and the laws of God”.249 The defendant had a history of being abusive towards his counsel, other judges and court staff. He also made abusive comments in subsequent correspondence to both Penlington and Hammond JJ.
6.17In an oral judgment, Hammond J held that, in the context of the case, the general law of contempt was of sufficient importance to justify a limit on the defendant’s rights of freedom of expression. The Judge noted that fair criticism of courts and judges has always been permitted and even encouraged. That said, he found that the leave application and subsequent correspondence were a direct attack on the integrity, propriety and impartiality of Penlington J:250

In short, what was being exercised by [the defendant] was not a genuine right of criticism but the improper imputation of the basest of motives.

The Judge concluded that these attacks were designed to lower the authority of the judges of the Court and to detract from the authority of the decisions of the Court. The statements were held to reflect directly on the integrity and impartiality of the Judges. The Judge characterised the defendant’s behaviour as “a form of aggressive bullying … designed to distract the Judges from arriving at proper decisions”.251 The defendant was sentenced to six weeks’ imprisonment and fined $1,000.
6.18The most recent case in New Zealand involving scandalising was Solicitor-General v Smith (Smith).252 The Hon Dr Nick Smith MP had become involved in a custody dispute involving constituents in his electorate. He twice spoke to the litigant caregiver who was seeking custody of a child in proceedings against the child’s biological parents, asking her how she felt about “stealing” her sister’s child and telling her that Parliament was “the highest Court in the land”.253 In a media statement relating to the Family Court custody proceeding, Dr Smith said: “This case almost amounts to state sanctioned child stealing.” He made similar statements in a TV3 interview and on National Radio. He also described what had occurred in court as “obscene”, “a fiasco”, “blatantly wrong” and “an indefensible situation”. He referred to a court warrant for custody of the child as a warrant for the child to be “ripped out of his family’s arms”.254

6.19The Crown brought contempt proceedings on multiple bases, including that Dr Smith’s comments carried a real risk of placing pressure on the Court in terms of its final decision and was likely to lower the standing of the Court generally and to undermine public confidence in its ultimate decision in the case.

6.20The Court held that the tone and fairness of comments are relevant to their tendency to interfere with the administration of justice. The Court agreed with the Crown’s characterisation of Dr Smith’s public statements as “one-sided, emotive and extreme in terms of their language, and inflammatory and intimidatory … in their effect”.255 The Court found Dr Smith made his media releases and gave the interviews on television and radio with the intention of persuading the litigant to give up on her custody case. Alternatively, it said it considered there was a real likelihood that Dr Smith’s comments would inhibit a litigant of average robustness from availing herself of her right to have the case determined by the Family Court. Dr Smith had deliberately chosen to publish his views on the case to as wide an audience as possible.
6.21The Court accepted that the offence of scandalising the court could be justified as a reasonable limitation upon freedom of expression. The Court reasoned that the limitation was justified as it was necessary to preserve the impartial and effective system of justice upon which any freedom of expression was dependent. Hence:256

The rights guaranteed by the BORA depend upon the rule of law, the upholding of which is the function of Courts. Courts can only effectively discharge that function if they command the authority and respect of the public. A limit upon conduct which undermines that authority and respect is thus not only commensurate with the rights and freedoms contained in the BORA, but is ultimately necessary to ensure that they are upheld.

This reasoning led the Court to conclude that the offence was a reasonable limit justified under section 5 of the New Zealand Bill of Rights Act 1990 (Bill of Rights).

6.22The Court found that the course of Dr Smith’s conduct as a whole amounted to contempt. Although the case is cited as an example of the New Zealand courts being more willing to find contempt by scandalising than courts in the United Kingdom,257 the scandalising conduct was not separate from the conduct that amounted to other forms of contempt.
6.23Professor ATH Smith has noted it is arguable that each of the incidents involving Dr Smith could also have been treated as a conspiracy to interfere with the course of justice under section 116 of the Crimes Act 1961 or a specific offence under section 117(e) of that Act, which penalises everyone who “wilfully attempts … to obstruct prevent, pervert or defeat the course of justice”.258

6.24Both Solicitor-General v Van der Kaap and Smith indicate that the senior courts have, in the past, been inclined to regard the need for maintaining confidence in the courts as a justified limitation on freedom of expression in appropriate cases, but this will depend on the facts of the particular case.

6.25A recent website on judging judges did not meet the threshold for prosecution.259 One can infer from this that the bar for prosecution of contempt by scandalising the court in modern New Zealand is very high. This reflects that there appears to be a high level of confidence in the New Zealand justice system and that it would take comments of an extraordinarily corrosive nature to erode that confidence.

6.26The New Zealand Law Society recently criticised the decision of a Fijian court, which had held a report by the Citizens Constitutional Forum that was critical of the state of the rule of law and independence of the Fijian judiciary was contempt by scandalising.

6.27Austin Forbes QC said:260

In a free and democratic society that adheres to the rule of law, prosecutions for contempt scandalising the court would not be expected to be brought other than in rare cases.

232R v Almon (1765) Wilm 243, 97 ER 94 as cited in Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990) at 361.
233R v Gray [1900] 2 QB 36.
234See Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990) at 368. The offending words were deliberately omitted from the judgment; see R v Gray [1900] 2 QB 36 at 37.
235At 40–41.
236Concise Oxford Dictionary of Current English (8th ed) (Clarendon Press, Oxford 1990).
237See for example Ahnee v Director of Public Prosecutions [1999] 2 AC 294 (PC) at 307.
238Ambard v Governor-General for Trinidad and Tobago [1936] AC 322 (PC) at 335.
239Attorney-General v Blomfield (1913) 33 NZLR 545 (SC).
240McLeod v St Aubyn [1899] AC 549.
241Attorney-General v Blomfield, above n 239, at 574.
242Re Wiseman [1969] NZLR 55 (CA); Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA).
243Attorney-General v Butler [1953] NZLR 944 (SC) at 946.
244At 946.
245This was because the defendant had limited his comments to recent decisions and had indicated his confidence in methods of arbitration, and he would have been within his rights had his comments been expressed in moderate language.
246Solicitor-General v Radio Avon Ltd, above n 242.
247ATH Smith Reforming the New Zealand Law of Contempt: An Issues/Discussion Paper (Crown Law Office, April 2011) at [3.46].
248Solicitor-General v Van der Kaap HC Hamilton M155/97, 30 May 1997 at 2.
249At 2.
250At 5.
251At 5.
252Solicitor-General v Smith [2004] 2 NZLR 540 (HC).
253At [49].
254At [58].
255At [58].
256At [133].
257See for example Ian Cram Borrie & Lowe: The Law of Contempt (4th ed, LexisNexis, London, 2010) at 406.
258Smith, above n 247, at [3.39].
259Gerard Counsell “‘Judge the Judges’ website concerns Government” (6 May 2013) TVNZ <www.tvnz.co.nz>.
260Austin Forbes QC “Fiji Sentences Condemned: Austin Forbes QC, chair of NZLS Rule of Law Committee Responds” (2011) 829 Lawtalk at 31.