Wise v State [2013] FJHC 97; HAA015.2012 (8 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 015/2012

BETWEEN :

HERBERT WISE
Appellant

AND :

STATE
Respondent

Counsel : Appellant in person
J. Niudamu for the respondent

Date of Hearing : 4 March 2013
Date of Judgment : 8 March 2013

JUDGMENT

[1] The appellant was charged with contempt of court, contrary to section 194 (1) (a) of the Crimes Decree. The charge alleged that on 7 April 2010, the appellant showed disrespect in manner of the order being made by Madam Magistrate Ms Arachchi while she was presiding in the Magistrates' Court at Navua.

[2] The trial proceeded before another Magistrate with the appellant representing himself. He was convicted and sentenced to two months' imprisonment. This is an appeal against conviction only. The appellant has served his sentence.

[3] The appellant's main ground of appeal is that his conviction cannot be sustained with the evidence that was led at trial. He is aggrieved by the manner in which he was dealt with in the Magistrates' Court before being charged with contempt.

[4] The prosecution case was based on the evidence of three police officers. PC Peni said on 7 April 2010, he was assigned to be the court orderly at the Magistrates' Court, Navua. The presiding judicial officer on this day was Madam Magistrate Ms Arachchi. While the proceedings were going on, at about 12.15 pm, he heard a loud yawn from the terrace of the courtroom. Ms Arachchi stopped the proceedings and directed PC Peni to inform the person who yawned to come inside the courtroom. When PC Peni looked out, he saw the appellant lying down on a bench on the terrace. PC Peni approached the appellant and told him to come inside the courtroom. The appellant refused. PC Peni returned to his seat inside the courtroom. Later PC Peni was ordered to arrest and lock up the appellant in the cell.

[5] The second witness was the police prosecutor in the Magistrates' Court at Navua on 7 April 2010. This witness said that when he heard the yawn, Ms Arachchi directed the court orderly to bring order in the court. The court orderly went outside and called out "silence in the court". After the court orderly had returned to his seat, Ms Arachchi instructed the prosecutor to inform the appellant to get up and sit down. The prosecutor went to the appellant and told him to get up, remove his sunglass and come and sit inside the courtroom. Later Ms Arachchi ordered the appellant to be locked up in the court cell and to be charged with contempt of court.

[6] PC Seru caution interviewed the appellant on 7 April 2010 at Navua Police Station. The appellant was charged and presented in the Magistrates' Court on 8 April 2010.

[7] At trial, it was not in dispute that the appellant was present within the precincts of the Navua Magistrates' Court where judicial proceedings were being heard by Madam Magistrate Ms Arachchi. The appellant in his evidence did not dispute that he yawned loudly while lying on a bench outside the courtroom. He said it was not a deliberate act and when the court orderly called for silence, he stood up, sat down and apologised to the court orderly. When the prosecutor approached him to remove his sunglass and sit inside the court, he refused because he did not have any matter before the court but was within the premises for his friend who had a matter before the court on that day.

[8] After identifying the elements of the charge, the trial Magistrate concluded that the appellant showed disrespect to the court proceedings by yawning while lying down on the bench beside the courtroom and refusing to remove his shades and to get inside the courtroom when ordered to do so. The trial Magistrate further concluded that the conduct of the appellant was intentional because the appellant in his evidence said he was well aware of the court procedures. The question is whether it was open to the trial Magistrate to come to these conclusions?

[9] The appellant was charged pursuant to section 194 (1) (a) of the Crimes Decree Section 194 (1) (a) provides:

"(1) A person commits a summary of offence against this section if he or she –

(a) Within the premises in which any judicial proceedings is being had or taken, or within the precincts of those premises, shows disrespect, in speech or manner, to or with reference to-

• (i) the proceedings; or
  
• (ii) Any person before whom such proceeding is being had or taken".
  

[10] The previous provision under the Penal Code was in identical terms with section 194 (1) (a) (see, section 136 (1) (a) of the Penal Code).

[11] Section 194(1) (a) requires the State to prove the following elements beyond a reasonable doubt:

(i) the accused;

(ii) within the premises in which any judicial proceeding is being heard or taken, or within the precincts of those premises;

(iii) shows disrespect in speech or manner;

(iv) to or with reference to the proceedings or any person whom such proceedings is being taken.

[12] What conduct constitutes disrespect to the court? In Alifereti Nimacere v State Criminal Appeal No.22 of 1989, the accused behaved in an aggressive, abusive and contemptible behaviour towards the trial Magistrate. Fatiaki J (as he was then) held that the accused was in contempt of court in the manner he conducted himself during the proceedings before the trial Magistrate. In Morris v Crown Office [1970] QB 114 it was held that disruption of proceedings and misbehaviour in court is disrespect to the court.

[13] In Powell (1993) 98 Cr App R 224, wolf –whistling at female jurors or witnesses was held to be a misconduct designed in show disrespect to the court. Assaults on court officials whilst they are engaged in the administration of justice was held to be disrespectful to the court in Re de Court (1997) (The Times, 27 November 1997). Outbursts in court may be contempt even in the absence of an intent to disrupt the proceedings (Huggins [2007] 2 Cr App R 107).

[14] It is clear from these authorities that the disrespectful conduct has to be a misconduct offensive to the proceedings or to the presiding judicial officer. In my judgment, the natural act of yawning cannot constitute a misconduct offensive to the court.

[15] In the present case, the appellant was outside the courtroom when he yawned once. When the presiding Magistrate heard the yawn, she directed the court orderly to bring order in the court. When the appellant was approached to be silent, he apologised for his conduct. But the presiding Magistrate did not let the matter rest there. She directed the appellant to remove his sunglass and to sit inside the court. The validity of the presiding Magistrate's direction is questionable. The appellant was not a party to any litigation before the court. What legal authority do the courts have to direct members of the public who are outside the courtroom to remove their sunglasses and to sit inside the court, especially when they are not parties to the proceedings before the court?

[16] After giving an unlawful direction, the presiding Magistrate gave a further unlawful order to place the appellant in the cell. The appellant had not committed any crime. Even if the appellant had committed an act of contempt in the plain view of the presiding Magistrate, she did not have the power to summarily punish him by incarcerating him. The only power the presiding Magistrate had was to detain the appellant until the conclusion of the proceedings and before rising of the court on the same day impose a fine and if the fine was not paid then in default an imprisonment sentence could have been imposed. But the presiding Magistrate did not invoke the summary procedure for contempt provided by section 194 (2) of the Crimes Decree. The appellant was not given an opportunity to be heard before the direction to incarcerate and to charge him for contempt was made by the presiding Magistrate. The appellant paid a very high price for what could easily be described as injudicious use of the judicial power by the presiding Magistrate.

[17] Maintaining decorum in the court is not an easy task for the judicial officers. But it is a responsibility that cannot be ignored. For instance, a judge may see a legal practitioner not bowing to the court when the judge bows upon arriving in court. The judge must not condone such conduct but a kind reminder to the practitioner that he is not bowing to the judge but to the institution of justice and that he should return the same courtesy to the court that is being offered to him by the judge is sufficient to ensure that the practitioner does not repeat such conduct in the future.

[18] Judicial officers come across people from all walks of life in their courts. At times, emotions could be high due to the nature of the matter before the court. Whether a disturbance is so serious as to amount to contempt is a matter which the presiding judicial officer is usually best placed to decide, but in many cases the best way of dealing with it may be for the judicial officer to rise, and let the disturbance subside.

[19] Finally, I endorse and adopt the observations of Kermode J in Brij Lal v Reginam Criminal Appeal No. 91 of 1983 at page 8:

"It is rare indeed for a Magistrate in Fiji to have to exercise what little powers he has to punish for contempt committed in his view. By and large the general public has respect for the Courts and where someone fails to comply with a lawful order of the Court a warning by the Court that he is laying himself open to contempt proceedings being brought against him is usually all that is required to have him comply with the order".

[20] On the evidence led at trial, it was not open to the trial Magistrate to convict the appellant for contempt of court. The conviction is therefore unsafe and is quashed. The sentence, albeit, has been served is also quashed.

[21] The appeal is allowed.

Daniel Goundar
Judge

Solicitors:

Appellant in Person
Office of the Director of Public Prosecutions for the State.