Chapter 8
Replacing common law contempt with statutory offences

Codification in New Zealand?

8.13The Commission’s preliminary view is that all common law contempt offences should be extinguished and the various forms of contempt made statutory offences. This would complete the partial codification that currently exists and make the offences relating to the administration of justice clearer and more accessible to the New Zealand public.

8.14Contempt is an ancient law that was made by judges and modified by judges over the years. That law would have greater legitimacy if it were made by Parliament.

8.15Criminal offences are different to other laws because a person may be punished and have their personal liberties curtailed as a result of failure to comply with a law. Since ignorance of the law is no defence in a criminal prosecution, it seems obvious that people must have an opportunity to know what the criminal law requires.

8.16An important argument against complete abolition of common law contempt and codification of the law of contempt is the breadth of matters that may potentially qualify as an interference with the administration of justice. There is a risk that conduct could be missed in such a drafting exercise, leaving a gap in the law if the inherent jurisdiction did not exist alongside the statutory provisions. Would the offences discussed in the previous chapters, together with existing statutory offences, provide all the necessary protection for the courts? At this stage, the Commission is not convinced there should be criminal offences punishable through inherent jurisdiction in addition to statutory offences.

8.17Concerns about gaps in the law could be overcome, however, either by keeping the highly problematic inherent jurisdiction411 or by having statutory provisions covering particular forms of contempt and a “catch-all” statutory provision making it an offence to engage in any other conduct where there is a real risk that the conduct will interfere with the administration of justice. A statutory catch-all provision would not make the law completely clear but would at least make it more accessible and give it greater constitutional legitimacy. If behaviour is covered by a specific statutory offence, any prosecution should be based on that provision rather than the general catch-all provision.

8.18Another issue for consideration is whether any new statutory offences should be included in existing legislation or a new Contempt of Court Act. A new Act to replace the common law for all contempt offences would make the contempt laws as accessible as possible. Alternatively, the offences could be inserted into Part 6 of the Crimes Act 1961.

Procedure

8.19Consideration also needs to be given to how any new statutory offences replacing contempt should be prosecuted. There are several possibilities. One option would be for new statutory offences to be prosecuted in the same way as other criminal offences, with the laying of a charge by the police. Criminal protections would apply, such as giving the accused proper details of the offence they are charged with and an opportunity to seek legal advice and be represented in court. Under this scenario, a conviction would result in a person having a charge on their criminal record.

8.20Perhaps offences related to business in the senior courts could be prosecuted in the High Court by the Solicitor-General and all other offences be referred by the police to the District Court and 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 in accordance with section 66 of the Criminal Procedure Act 2011? This would ensure only appropriate prosecutions are brought to the attention of the most appropriate court.

8.21Sections 116 and 117 of the Crimes Act 1961 already enable wide powers to punish contempt-type behaviour under normal criminal processes; however, police priorities do not enable police prosecution of such offences on a routine basis. In order to be effective, if treated like other offences, former contempt offences would need to be given a greater priority than is currently given to offences in Part 6 of the Crimes Act.

8.22Another option would be for the registrar of the court to which the alleged contempt relates to be able to file a charging document as well.

8.23A further option would be for a special procedure to be developed for former contempt cases that enabled a judge-alone hearing brought by application by the Solicitor-General. It may also be appropriate for different processes to apply to different offences, depending on the particular offence and the risk to the administration of justice.

Questions

Q23 Do you think common law contempt of court offences should be completely abolished and replaced by statutory offences?
Q24 Should there be a new Contempt of Court Act?
Q25 If contempts were replaced with statutory offences, how should those offences be prosecuted?

411See M R Ferrere “The Inherent Jurisdiction and its Limits” (2013) 13 Otago LR 107.