This thesis examines four aspects of the contempt power in New Zealand. It does not, therefore, purport to be an exhaustive study of the law of contempt in all its protean forms. Rather, its aims are to assess what the law is, and why, and to consider whether it aptly describes the values of the society it purports to protect. The law of contempt has suffered from an excess of dichotomies and classifications which nowhere guarantee its clarity. The most enduring classification is that which distinguishes between criminal and civil contempts, largely on the basis of whether the sanctions which follow are punitive or coercive. Three types of criminal contempt are discussed. Contempt in the face of the court concerns the jurisdiction to punish summarily contumelious behaviour in court. It is argued that, since the summary procedure permits the imposition of sanctions without the usual trial safeguards, the contempt power ought to be limited to the removal of the contemnor from the court. Any more extensive contempt power arguably infringes the freedoms protected by the New Zealand Bill of Rights Act 1990. The law of sub judice contempt seeks to strike a balance between the competing values of freedom of expression and the right to a fair trial. Judicial insistence on the existence of a real risk as a matter of practical reality before the actus reus of this form of contempt is met has effectively restrained criticisms of the rule. Nevertheless, since it can penalise non-negligent practices, it is suggested that sub judice contempt should be treated as a crime of strict liability. The third form of criminal contempt, scandalising a court or judge, is said to be necessary to ensure confidence in the administration of justice. However, there is little evidence that the public perception of the judiciary would suffer through debate over the abilities of its judges. This arm of contempt ought not to be perceived as a form of judicial protectionism. For that reason, and because it arguably infringes the Bill of Rights Act 1990, it is urged that contempt through scandalising a court or judge should be abolished. The law of civil contempt is dealt with through a discussion of breaches of injunctions and undertakings. Since the sanctions which follow may serve both punitive and coercive ends the distinction between this category and the other three is regarded as incomplete. It is contended, however, that there are many similarities between criminal and civil contempts which merit their treatment as a genus. Whenever punitive sanctions are imposed (whether for a criminal or civil contempt) normal trial safeguards ought to exist. On the other hand, if enforcement of a court order is sought, such protection is inappropriate. A procedural approach to the different types of sanctions ought to rid contempt law of perplexing categorisations which fail to address the essential characteristics of the contempt power.
| Identifer | oai:union.ndltd.org:ADTP/247836 |
| Date | January 1990 |
| Creators | Maxton, Julie |
| Publisher | ResearchSpace@Auckland |
| Source Sets | Australiasian Digital Theses Program |
| Language | English |
| Detected Language | English |
| Rights | Whole document restricted. Items in ResearchSpace are protected by copyright, with all rights reserved, unless otherwise indicated., http://researchspace.auckland.ac.nz/docs/uoa-docs/rights.htm, Copyright: The author |
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