“The law on this subject is and must be
founded entirely on public policy. It
is not there to protect the private
rights of parties to a litigation or
prosecution. It is there to prevent
interference with the administration of
justice and it should in my judgment be
limited to what is reasonably necessary
for that purpose. Public policy
generally requires a balancing of
interests which may conflict. Freedom
of speech should not be limited to any
greater extent than is necessary, but
it cannot be allowed where there would
be real prejudice to the administration
of justice.”
Per Lord Reid in A-G v. Times
Newspapers Ltd. [1974] AC 273, 294 H.L.
The law of contempt of court has, as its sole purpose,
the maintenance of the authority and the dignity of the
courts. Section 124 of the Constitution provides that the
Supreme Court, the Court of Appeal and the High Court have
power to punish persons for contempt of court in accordance
with the law. Jurisdiction for contempt of court exists in
a limited form under statute and generally, under common
law. Inevitably, in cases of criminal contempt, the
interference with the proper administration of justice must
be balanced with a citizen’s right to freedom of
expression. In cases of contempt in civil proceedings, the
courts are more likely to be concerned with the wilfulness
of the disobedience of a court order.
In this paper, I
will deal with issues of interest to a practitioner, in
relation to criminal contempt and civil contempt.
Criminal Contempt
I call this topic criminal contempt although of course
contempt of court, leading to conviction and sentence, can
arise in all court proceedings and is always criminal in
sanctions. However, behaviour leading to convictions of
contempt for “scandalising the court” usually arise, for
some reason, in criminal proceedings.
In an excellent analysis of the history of contempt of
court, Townsley J in Sayed Muktar Shah v. Elizabeth Rice
and Others, explained why contempt jurisdiction should be
exercised only in exceptional circumstances. Because it is
a common law jurisdiction, only the High Court has powers
to summon people for contempt of court. If a magistrate
believes that a person is in contempt he/she may report the
matter to the police for investigation and prosecution
under section 136 of the Penal Code or refer the matter to
the High Court for the High Court to initiate proceedings.
This latter option is rarely exercised.
Section 136 of the Penal Code is specific. It
provides as follows:
“(1) Any person who –
(a) within the premises in which any
judicial proceeding is being had or
taken, or within the precincts of the
same, shows disrespect, in speech or
manner, to or with reference to such
proceeding, or any person before whom
such proceeding is being had or taken;
or
(b) having been summoned to give evidence
in a judicial proceeding, fails to
attend; or
(c) being present at a judicial proceeding
and being called upon to give evidence,
refuses to be sworn or to make an
affirmation; or
(d) having been sworn or affirmed, refuses
without lawful excuse to answer a
question or to produce a document; or
(e) having attended a judicial proceeding
to give evidence, remains in the room
in which such proceeding is being had
or taken after the witnesses have been
ordered to leave such room; or
(f) having been ordered by the court to
remain within the premises in which any
judicial proceeding is being heard or
taken or within the precincts thereof
departs from such premises or precincts
without the leave of the court; or
(g) causes an obstruction or disturbance in
the course of a judicial proceeding; or
(h) while a judicial proceeding is pending,
makes use of any speech or writing
misrepresenting such proceeding or
capable of prejudicing any person in
favour of or against any parties to
such proceeding, or calculated to lower
the authority of any person before whom
such proceeding is being had or taken;
or
(i) publishes a report of the evidence
taken in any judicial proceeding which
has been directed to be held in
private; or
(j) attempts wrongfully to interfere with
or influence a witness in a judicial
proceeding, either before or after he
has given evidence, in connection with
such evidence; or
(k) dismisses a servant because he has
given evidence on behalf of a certain
party to a judicial proceeding; or
(l) wrongfully retakes possession of land
from any person who has recently
obtained possession by a writ of court;
or
(m) commits any other act of intentional
disrespect to any judicial proceeding,
or to any person before whom such
proceeding is being had or taken,
is guilty of an offence, and is liable to
imprisonment for three months.
(2) When an offence against paragraphs (a),
(b), (c), (d), (e), (g), (h) or (m) of
subsection (1) is committed in view of the
court, other than a magistrate’s court
presided over by a third class magistrate,
the court may cause the offender to be
detained in custody, and at any time before
the rising of the court on the same day may
take cognizance of the offence and sentence
the offender to a fine not exceeding forty
dollars or in default of payment to
imprisonment for a term not exceeding one
month.
(3) The provisions of this section shall be
deemed to be in addition to and not in
derogation from the power of the [High
Court] to punish for contempt of court.” 5
Section 136 creates several offences. However, like
other Penal Code offences, a magistrate cannot be
investigator, prosecutor and judge. He or she can only
refer the matter to the police (or the DPP) for
investigation unless the offence is committed in the view
of the court. If and when charges are laid, another
magistrate should preside, because the complainant cannot
also preside over the case. Section 136 is rarely used
however.
The most common form of criminal contempt is the
common law jurisdiction of scandalising the court. Fiji
has a colourful, not always respectable history of
prosecutions for scandalising the court. I say, not always
respectable, because past cases show us how the contempt
powers of a court can sometimes be used to stifle
legitimate submissions by counsel, and forthright and
critical comments on judicial conduct, by the media.
A classic example was Syed Muktar Shah v. Elizabeth
Rice. I must declare at the outset, that this was a case
with which I am very familiar. Elizabeth Rice was a
Principal Legal Officer at the DPP’s Office when I was DPP.
She was instructed to prosecute an Attorney-General’s
Officer for perverting the course of justice. It was
alleged that the Attorney-General’s Officer, in his
personal (not his professional) capacity, had persuaded a
rape victim to change her evidence in the case against the
accused. The accused was her father, and she was a 15 year
old girl.
On the morning of the trial, the case was listed
before Dr. Ilangasinghe. Mysteriously, whilst the
prosecutor waited for the case to be called in that court,
the file was transferred to Mr. Shah. Ms Rice called me
for instructions. I told her to ask Mr. Shah, how the case
was listed before him when the cause list said otherwise.
She followed my instructions. The media was at the back of
the courtroom. This was a high-profile case. The Fiji
Times reported Ms Rice’s request for information about the
transfer. Mr. Shah then summoned Ms Rice, the journalist
and the Fiji Times for contempt of court. The summons
failed to specify the contempt. It was vague and badly
worded. The Fiji Times, at the contempt hearing was
represented by Mr. Richard Naidu, Ms Rice by (as he was
then) Mr. Anthony Gates. I was a sometimes shocked, always
apprehensive, and very dismayed observer. The defence was
of course firstly that the charge was defective, secondly
that there was no contempt in law, and thirdly that the
contempt hearing masked a serious problem of forum-shopping
in the Suva Magistrates’ Court.
Halfway through the hearing, the magistrate approached
one of the accused, a journalist and told him to plead
guilty in return for a non-custodial sentence and a better
job at the Daily Post. The journalist promptly swore to
this in an affidavit, which was put before the magistrate.
The magistrate denied the contents of the affidavit. The
entire proceedings became a farce. It brought the
judiciary into disrepute. And in the eyes of the public,
confidence in the courts was diminished. The case is a
good example of how contempt proceedings, if not launched
with wisdom, will not enhance the authority of the courts,
but will instead erode it. The High Court in quashing all
convictions on appeal was scathing. It said that contempt
did not exist in substance, that the Magistrates’ Courts
did not have jurisdiction to deal with it anyway and that
the entire episode was a blot on judicial independence,
honesty and authority. Embarrassing though it is to be
reminded of it, the case serves to show us of the limits of
the contempt jurisdiction.
And we do need reminding. Just one year later, the
Suva Magistrates’ Court again in error punished for
contempt without jurisdiction. In the case of Ratu Ovini
Bokini v. The State the accused was charged with official
corruption. At the preliminary inquiry there were heated
exchanges between the bench and the prosecutor, and between
the prosecutor and defence counsel. At one point, the
prosecutor stood to ask if the witness could be excluded
while defence counsel made submissions about some aspect of
the evidence. The magistrate told the prosecutor to sit
down. The prosecutor asked the magistrate if his
application could be heard. The magistrate then said
infamously:
“Could you please take him downstairs for
contempt of court. Take him downstairs for
contempt of court for 5 minutes. Let him go
and cool downstairs. You go downstairs
right now. Take him downstairs. Drag him
downstairs.”
The High Court and Court of Appeal found that these
words and the detention of the prosecutor gave rise to a
reasonable apprehension of bias. The Court of Appeal said
further:
“…… the summary power of punishing for
contempt should be used sparingly and only
in serious cases Izuora v. The Queen [1953]
AC 329. The usefulness of the power depends
on the wisdom and restraint with which it is
exercised: to use it to suppress methods of
advocacy which are merely offensive is to
use it for a purpose for which it was never
intended Parashuram Detaram Shamdasani v.
King Emperor [1945] AC 264, 270.”
Contempt proceedings brought in the High Court have
experienced greater success. However, even they are rare.
The most recent is Mahendra Pal Chaudhary v. AttorneyGeneral of Fiji. The case was brought in the civil
jurisdiction of the High Court but was described as a
criminal case. The application by the Attorney was made
under Order 52 rule 1 of the High Court Rules.
The facts were that Mr. Chaudhary was then leader of
the Labour Party. He was alleged to have published a
pamphlet saying that since the 1987 coups many judicial
officers had become corrupt. Some lawyers had become
receiving agents for magistrates and judges, and a number
of lawyers arranged to appear before a preferred magistrate
or judge. The High Court, on the Attorney’s motion, found
the pamphlet to be contemptuous because it scandalised the
court. Mr. Chaudhary was found guilty and ordered to pay
costs of $500.
On appeal, the Court of Appeal agreed. The judgment
is particularly useful in the way contempt jurisdiction
should be balanced with the freedom of expression
provisions of the Constitution. Although the relevant
provision was then in existence under the 1990
Constitution, a similar provision exists in the 1997
Constitution.
Section 30 of the Constitution provides:
“(1) Every person has the right to freedom
of speech and expression, including:
(a) freedom to seek, receive and
impart information and ideas; and
(b) freedom of the press and other
media.
(2) A law may limit, or may authorise the
limitation of the right to freedom of
expression in the interests of:
(e) maintaining the authority and
independence of the courts ….
but only to the extent that the
limitation is reasonable and
justifiable in a free and democratic
society.”
In Chaudhary the Court of Appeal traced the history of
contempt by scandalising the court and considered the law
on contempt in relation to freedom of expression. Drawing
comparisons with the Canadian Charter of Rights and
Freedoms and the Ontario Court of Appeal decision in R v.
Kopyto, the Fiji Court of Appeal expressed the view that
there was no need to prove a “real, substantial and
immediate danger to the proper administration of justice”
to overcome the freedom of expression hurdle. At pages 8
and 10 of the judgment, the Court of Appeal said of Kopyto: 10
“With respect, we think that the majority
view puts the threshold unduly high. In
effect it means that scandalising contempt
would be virtually impossible to establish a
fact acknowledged by at least one Canadian
commentator who said it was reasonable to
assume that this form of contempt no longer
exists in the light of R v. Kopyto (Martin
Media Law in Canada (1997).) There have
been no reported cases of scandalising
contempt since then.”
The Fiji Court of Appeal preferred the test adopted by
the New Zealand Court of Appeal in Solicitor General v.
Radio Avon Ltd. [1978] 1 NZLR 225. In that case the court
said:
“The courts in New Zealand, as in the United
Kingdom, completely recognise the importance
of freedom of speech in relation to their
work provided that criticism is put forward
fairly and honestly for a legitimate purpose
and not for the purpose of injuring our
system of justice.”
Further, the defence of truth or fair comment is
available on a charge of contempt by scandalising. The
alternative was to say that the imputing of improper
motives to judges must always be contemptuous, even when
such criticism was true. The New Zealand Court of Appeal
said:
“If this were the law then nobody could
publish a true account of the conduct of a
judge if the matter published disclosed that
the judge had in fact acted from some
improper motive. Nor would it be possible,
on the basis of facts truly stated, to make
an honest and fair comment suggesting some
improper motive, such as partiality or bias,
without running the risk of being held in
contempt.”
The Radio Avon case was an interesting one, both on
the facts and the law. In 1976, a privately owned
Christchurch radio station, broadcast a news item saying
that a judge of the then Supreme Court was at the centre of
“another” closed court controversy, and that he had
dismissed a criminal charge in a closed court. In fact the
judge had sat in chambers, a matter which was later agreed
to be non-controversial. A few months earlier, the judge’s
son had been convicted of drink drug charges in the
magistrates’ court in a closed court. There had been
allegation of preferential treatment. The radio station
after a police investigation, broadcast an apology.
Nevertheless, the Solicitor-General moved the Supreme Court
for contempt of court. The Supreme Court (per Wild CJ and
Casey J) found the radio station and one of its officers,
guilty of contempt and fined them both. On appeal, the
conviction in respect of the officer was allowed. In the
course of argument, it was submitted that the offence of
scandalising the court had become obsolete. The Court of
Appeal made the following finding about the law of
contempt:
1. The law of contempt exists to protect
the administration of justice, not the
dignity of the judges.
2. Because of the wide powers given to the
courts to punish for contempt, these
powers should be used only from a sense
of duty and in cases where there is a
clear case of contempt beyond
reasonable doubt.
3. One class of contempt is an act done to
bring a Court or a judge into contempt,
or to lower his/her authority. The
second class is to do something
calculated to interfere with the due
process of justice.
4. Fair comment, based on truth, is not
contempt.
What types of criticisms of the courts are justified
in a free and democratic society? Two Canadian cases
summarise the principles clearly. One is Oakes (1986) 26
DLR (4th) 200. The other is R v. Chaulk (1991) 2 CR (4th) 1,
27-28. In Chaulk they were set out as follows:
“1. The objective of the impugned provision
must be of sufficient importance to
warrant overriding a constitutionally
protected right or freedom; it must
relate to concerns which are pressing
and substantial in a free and
democratic society before it can be
characterised as sufficiently
important.
2. Assuming that a sufficiently important
objective has been established, the
means chosen to achieve the objective
must pass the proportionality test;
that is to say they must:
(a) be ‘rationally connected’ to the
objective and not be arbitrary,
unfair or based on irrational
considerations;
(b) impair the right or freedom in
question ‘as little as possible’;
and
(c) be such that their effects on the
limitation on rights and freedoms
are proportionate to the
objective.”
This was the test applied in relation to the 1990
Constitution in Chaudhary.
The other type of criminal contempt tends to be acts
which pervert the course of justice. Newspapers which
publish proceedings in a trial within a trial, accused
persons who threaten witnesses, and people who persuade
others not to give evidence in accordance with their
statements all fall into this category. However, because
perverting the course of justice is a statutory offence in
Fiji, members of the bench prefer to await the normal
course of police investigations and prosecutions. Where
swift action is needed to stop a continuing breach, by a
newspaper for instance, a judge may prefer to verbally warn
the erring newspaper rather than taking the step of
instituting contempt proceedings.
Contempt in Civil Proceedings
These are contempt proceedings under Order 52 of the
High Court Rules. Because contempt generally is an
exceptional step with penal consequences, the law requires
that all procedural steps under Order 52 be strictly
complied with. As Lord Denning said in McElraith v. Grady
[1968] 1 QB 648 at 477:
“No man’s liberty is to be taken away unless
every requirement of the law has been
strictly complied with.”
Under Order 52 rule 2(1), application for leave must
first be obtained by ex parte motion to a judge in
chambers. The motion must be accompanied by a statement
including grounds for the application. The statement must
set out the particular matter of the contempt, with the
order and alleged breach specified. (Harmsworth v.
Harmsworth [1987] 3 ALL ER 816 at 819). Further,
accompanying the motion and statement must be an affidavit
verifying the facts which are relied upon.
Once leave is granted, the court must allow 8 clear
days from service of motion to date set for hearing, and
the motion must be entered within 14 days thereafter for
hearing or leave will lapse (Order 52 r.3(2).)
There must be personal service on the person who is to
be committed and the Notice of Motion, Statement, Affidavit
and Order granting leave are all to be served on that
person. The Court does have powers under Order 52 r. 3(4)
to dispense with service if he or she thinks it just to do
so. One reason to so dispense might be where the person to
be committed is evading service.
If the hearing of the motion is adjourned, there must
be personal service of the adjourned hearing date and
affidavit of such service must be available for production
to court on the adjournment date. Of course, where the
defendant was told in court of the new date, no such proof
is required (Chiltern District Council v. Keane [1985] 1
WLR 619.) 15
The contempt hearing itself must be in open court
unless they are related to proceedings for wardship,
adoption, guardianship, custody, mental disorders, secret
processes or interests of national security or the
administration of justice.
The order which is alleged to have been disobeyed must
be clear and unambiguous. In Prem Chand and Others v. Ram
Chandar Fiji Civil App. ABU0021 of 2002S, the Court said:
“But we will not make orders which are too
uncertain to be capable of enforcement.
Each of the orders obliges the respondent in
question to yield possession of the whole
149 acres comprised in the certificate of
title. That, of course, is absurd and
should be corrected. The form of the orders
is a matter for the court. It is not a
matter that concerns only the parties. The
court will not make orders that ought not to
be made. It has to be remembered that the
order may have to be enforced by execution
and anyone executing a writ of execution
must know precisely what it is that he or
she is to do. No court officer entrusted
with execution of the order sought by the
appellants in this case could possibly have
any certainty as to what was required.”
The order must be indorsed with an appropriate Penal
Notice (Order 45 r.6) and the sealed order should be
indorsed, with appropriate variations as follows (in
matrimonial cases):
“Take notice that if you fail to carry out
the acts required of you by the within
decree (or order) within the time specified
in the decree (or order) for carrying out
those acts, further legal proceedings may be 16
taken against you for the purpose of
compelling you to carry out those acts.”
In cases against an individual, the order must be
indorsed as follows:
“If you neglect to obey the order within the
time specified herein, or, if the order is
to abstain from doing an act, that if you
disobey the order, you are liable to process
of execution to compel you to obey it.”
In the case of body corporate it should be indorsed as
follows (Order 45 r. 6(4)(b)):
“If you the above-named body corporate
neglect to obey the order within the time so
specified or, if the order is to abstain
from doing an act, that if you disobey the
order, you are liable to process of
execution to compel you to obey it.”
At a trial for contempt of court, the onus of proof is
on the mover of the motion. The standard of proof is one
of proof beyond reasonable doubt and the court must be
satisfied that the disobedience was “wilful.” In Vijay
Kumar v. Shiv Ram and Ainul Nisha Civil Action HBM0026 of
2000S, I said, relying on the House of Lords decision in R
v. Sheppard (1981) AC 394 that “wilful” meant “either
deliberately doing an act knowing that there is some risk
of the consequences, or doing an act not caring about the
consequences.”
Although the proceedings are civil, criminal rules of
evidence are often imported (Barclays de Zoete Wedd
Securities Ltd. and Others v. Nadir [1992] TLR 141.) The
grounds for moving for contempt can only be amended with
the leave of the court (Order 52 r.5(3), Order 20 r.7).
The possible punishments which can be imposed are a
fine, imprisonment or security to be of good behaviour. In
Abbas Ali and Others v. Chaudhary and Others Civil Action
HBC 0061.01L, Gates J considered the conduct of a man who
attempted to lodge caveats on certain property which
interfered with the day to day operations of the company,
which in turn amounted to a contempt of court. The man was
65 years old and had experienced frustration and delay in
obtaining repayment of the loan made to the company. He
was fined $1000 in default 30 days imprisonment. He was
also ordered to pay $2000 in costs.
Conclusion
The contempt jurisdiction of the High Court should be
exercised sparingly and with wisdom. Where the contempt is
in the form of scandalising the court, it is preferable
that the judge who is the victim, should not hear the
matter. Truth or fair comment is a defence to the charge
of contempt and honest and forthright criticism of the
court system is not contempt unless it falsely imputes
improper motives on a judge’s conduct. In civil contempt,
the wilful disobedience of a court order must be proven
beyond reasonable doubt, and the order itself must have
been clearly and concisely worded so the contempt is clear.
This is not always a clear area of the law and much
emotion often features in contempt prosecutions. Indeed,
in many situations, judges and magistrates would be far 18
wiser to report a suspected contempt (under section 136 of
the Penal Code) to the police, or to request the Attorney
General to move the High Court on the matter. In that way,
one avoids being victim, prosecutor and judge in the same
cause.
Credits;http://documents.ag.gov.fj/Contempt-Shameem.pdf
No comments:
Post a Comment