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Fiji Law Reports |
COURT OF APPEAL OF FIJI ISLANDS
MAHENDRA PAL CHAUDHRY
v
ATTORNEY-GENERAL OF FIJI
[COURT OF APPEAL, 1999 (Casey, Barker, Thompson JJA) 4 May]
Criminal Jurisdiction
Constitution- freedom of expression- whether contempt by scandalising the Court is reasonably justifiable in a democratic society - Constitution (1990) Sn 13.n 13.
Courts- contempt of court- freedoexpression - on - Constitution (1990) Section 13.
The Appellant published ahlet which repeated suggestions that some judges and magistagistrates were corrupt. The Appellant wavicted
of d of contempt by scandalising the Court. On appeal thrt of Appeal real re-affirmed the existence of the common law offence in
Fiji and HELD: (i) the constitutional right to freedom of expression could nold not avail where it was proved that there was a real
risk that the actions of the contemnor would undermine public confidence in the administration of justice; but (ii) that even in
such cases the defences of honest or fair comment and of justification or truth were available.
Cases cite>
Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, 325 (PC).
<
Attorney-General v Butterworth& [1963 696
Attornetorneeral for NSW v Mundey&#/i> [1972] 2 NSWLR 887
Attorney-Generalneral v Times Newspapers Ltd [1974] AC 273
Craig v Harney [1947] USSC 124; 331 US 367<367 [
Duff v Commdo Lmdo Ltd [12 NZLR 89.
Harmsworth v Harmsworth [160;[1978] 3 Al816
>
McLeod v St Aubyn [1899] UKLawRpAC 33; [1899] AC 549, 561
MetropolPolicmissioner ex part parte Blackburn [1968] 2 QB 150
Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA>
Nationwide New LNew Ltd v Wells [1928] 44 TLR/a>R v Fletcher
R v Gray [1890] 2QB >
R v Kopy Kopyto [198 DLR (4th) 213
<
R v Nicholls [1911] HCA 22; [1911] 12 CLR 280, 286
R v Oakes [1986] 26 DLR (4th)/p>
<
Secretary of State for Defence v Guardian Newspapers Ltd [1985]39
Solicitor-itor-General v Radio Avon Ltd [1978] 1 NZLR 225, 232
Solicitor-General v Radio New Zealand Ltd
Vijaya Parmananandam v Attorney -General [1972] 18 FLR 90 (CA)
 Appeal againstainst conviction in the High Court.
i>R. Naidu#160;for ther ther the Appellant
S. Banuve & Kumar&#/i> for the Responder> #160;
:
On 7 1998 in the High High Court at Suat Suva, Fatiaki J found the appellant, Mrndra haudhuilty of contempt of court on the applicatiocation
of the respondent and ordered him thim to payo pay $500 costs. He appeals against thatingnding and order.
The cation was based oned on O.52, r1 of the High Court Rules 1988 which provides that the Cour17;s power to punish for contempt may
be exercised by an order of committal (inter alia) &#a) “otherwise than in connection with any proceedings” (O.52, r1(2)(b)).
The appellant was described at the material time as a trade unionist and leader of the Labour Party in Parliament. Tounds on which
the order rder of committal was sought were expressed in the Notice of Motion of 10 February 1998 as “his contempt of this
Honourable Court in publishing pamphlets (sic) and causing [it to be] published in the issue of the Daily Post dated 14 July 1997
under the heading “Judiciary Corrupt”. The words complained of appeared in the following paragraph of the pamphlet alleged
to have been published by the appellant:-
There has been pusuic suspicion since the coups that many in our judicial system are corrupt. In several cases well known lawyers have been ident as receiving agents for magistrates and judges. A number of lawyers are known to arrange fnge for them to appear before their preferred magistrates or judges.
It was claimed that stas statement constituted a form of contempt recognised by the common law as that of candalising’
the the court. &#It was included in a chap chapter relating to LawOrder as part of a wide-rane-ranging social and political review
of Fiji, expressed occasionally in robust language, and generally consistent what could be expected in a in a party political report
of such a nature.
The affidavit oal Iyer,Iyer, a journalist (which was not challenged by cross-examination) established that the appellant, as Secretary-General
of the Labour Party, presented tmphlet to a meeting of party delegates on 11 July 1997 and and it was distributed to journalists
and news media. It was a lengocument over over the signature of Mahendra Pal Chaudhry as Secretary-General, headed “Fibour
Party arty Reporthe Secretary-General to the 12th Delegateference, Tokatoka Roka Resort, Nadi - 11 Jul1 July 1997”. In spite
of Mr N#8217bmissions in support of the ground of appeal alle alleging that publication of the report bort by the appellant had not
been proved to theired standard of beyond reasonable doubt, we are satisfied that this was clearly establishelished on the evidence
and agree with His Lordship’s conclusion to this effect. We also concuris view that that instead of alleging a single contempt
of causing the pamphlet to be published in the newspaper (as contended for by Mr Naidu), the Notice of Motion alleged two separate
conte one of publishing the pamp pamphlet, and the other of causing it to be published in the Daily Post. His Lordship found the
second allegation was not proved ae appeal is cois concerned only with Mr Chaudhry’s own publication of the statement.<160;
We saw no merit in Mr Naidu’s submission that the Notice of Motion did not paot particularise sufficiently the details of the
publication. No applicatas made for furr further particulars, and we reject any suggestion that Mr. Chaudhry was uncertain of what
was charged against him, or placed at any disadvantage in defending himself. Mr Naidied on Harm>Harmsworth v Harmh
O.52, r3 of the High Rurt Rules dealing with the Motion for a Committal Order has nuirequirement that the grounds be stated in it
, as distinct from the comparable English O.52 r4 which contains such a dire.ere is provision sion in our O.52 r3(3) for service,
along with the Notice of Motion, of thof the affidavit and statement in support of the originating application for leave under O.52,
r2, which was done here. This is clearly designed to give the respondent the information he or she needs to meet the contempt charged
in the Motion. It was sufficie this case.case. We see no needntroduce inte into our Rules the added refinement that the motion
itself should contain similar particulars. Accordine areprepao followollow Harmsworth&an60;and ;and other English authorities suggestinesting this must be done as a matter of co The contempt alleged in that case consisted
of breaches of a non-molestation order, and itnd it may be sensible in such situations for details of the episodes relied on to be
included in the Notice of Motion, even though there is no requirement for that to be done. But there was no need for such particularity
here.
13xcept his onsent, no person shall be hindered in the enjoyment offreedom of expression, that is t is to sato say, fry, freedomeedom to h to hold aold and tond to receive and impart ideas and information without interference, and freedom from interference with his correspondence.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the exthat aw in question makes provision -
..............
(b) < for the purpos......... ma.. maintaining the authority and independence of the courts.........
.........
except so far as that provision or,he cay be,thing unde auth thereof reof is shis shown nown not toot to be r be reasoneasonably justifiable in a democratic society.
Sectio provided:
uperior courts shal shall have power to punish persons for contempt in accordance with the /p>
We take thibe d be declaratory of the existing powers, both both explicit and inherent, of the superior courts, but that the law they
apply and the things done under its authority must still accord with the requirements of the Constitution and in particular with
s13.
In the High Court Fatiaki J said he had not the slightoubt that that the law of contempt of court is a legitimate, necessary and
reasonably justifiable law in a democratic society having as its sole purpose thntenand authority of t of the courts. He referred
toViju>Vijaya Parmananandam v Attorney -General [1972] 18 FLR 90 (CA) upholdingndingontem thby the thhe then Supreme (now High) Court in relation to a statement scandalising ting the court, but it seems
that it did noe the advantage of considering the body of law which has since been developed in other juri jurisdictions with similar
constitutional guarantees. His Lordship nguished the the decision of the majority in the Ontario Court of Appeal in R v Kopyto߄) 478) 47 DLR (4th) 213 holding there was no such contempt because of the effect of a provision similar to that in s13(2) reg to reasonable justification
in a democratic society.
Contempt at c at comm common law
In deterg the extenextent to which the law relating to contempt by scandalising the Court is “reasonably justifiable in a demic
so”, it is apis appropriate to ascertain how that law is presently understood in commonommon-law jurisdictions. Recent cases
in England show the tension existing between the perceived need in the public interest to punish statements scandalising the Courts
or judges, and the common-law values of freedom of speech and expression. The existence of this form of contempt, recognised in earlier
cases, was confirmed in St. James Evening Post
By 1985 contempt by scandalising the Court was describ Lord Diplock as “vir0;virtually obsolescent” in Secreof State for Defencefence v Guardian Newspapers Ltdhref="http://www.paclii.org.vu/cgi-bin/LawCite?cit=%5b1985%1985%5d%20AC%20339" title="View LawCite Record">[1985] AC 339, 347A, a is said in Arlidgelidge, Ead Smith mith on Contempt (2nd;edition) (London, Swee Sweet & Maxwell 1999) at p341 that proceedings for contempt of this kind are rare, the Courts in
the United Kingdom preferring to ignore attacks upon themselves.r>
An intention toon to interfere with the proper administration of justice was not seen as a necessary ingredient of the offence of
contempt by scandalising the court in Attorney-GenerButterwortrworth [1963] 1QB it was enough ifgh if the action complained of was inherently likely so to interfere), or by Lord Hewart in R v Editor of Newesman eman ex parte DP ref="http://www.pwww.paclii.org.vu/cgi-bin/LawCite?cit=%5b1=%5b1928%5d%2044%20TLR%20301"
title="View LawCite Record">[1928] 44 TLR 30, and this view has been adopted in other common-law jurisdurisdictions - see Attorney-Genera NSW v Mu v Mundey [1972] 2 NSWLR 887 [1978] 1 NZLR 225, 232.
he courtcourts in New Zealand, as in the United Kingdom, completely recognise the importance of freedom of speech in relation to
their work provided that critics put forward fairly and honestly for a legitimate purpose pose and not for the purpose of injuring
our system of justice.”
However, it added thatethere was an area of uncertainty in Lord Atkin’s statement, which could be interpreted aludicluding
from protection any form of criticism imputing improper motives to those taking part in the administration of justicd went on to
say:
“If this were the law then nobodnobody 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 woulbe poe, on the base basis osis of facts truly stated, to make
an honest and fair comment suggesting some improper motive, such as party or bias, without running the risk of being held in contempt.”
The Coue Court red to p to published works suggesting that a defence of justification or fair comment could be an answer to this dilemma,
citing in support of fair comment the jnt of Griffith J in the High Court of Australia in 0;R v Nls
.....the revelatf t of truthtruth - at all events when its revelation tion is for the public benefit- andmakina fair fair criticriticism
based on fact do not amount to a contempt of court though the truth revealed or the criticism ma sucho deprive the court of public
confidence. 1. ټ < < ¦҈ Th60;The0;The objective of the impugned provision be oficienortancetance to warrant overriding
a constitutionutionally protected right or freedom; it m it must relate to concerns which are pressing and substantial in a and ratic
society befy before iore it can be characterised as sufficiently important.
The logic in rising ting ting truth ruth as a defence is compelling and accords with current attitudes of the common law relating
to this form of contempt. On the other hand use in t in this judgment ch terms as ‘unjustifustified’, ‘baseless’
and ‘unwarranted’ in referring to statements scandalishe court indicate an objective test, so that a mistaken beln belief
in the truth of the allegations would not avail the defendant.
This summary indicatet that the common-law offence of contempt scandalising the Court involves attacks upon the integrity or impartiality
of judges urts, the mischief hief aimed at being a real risk of undermining public confidence in the administration of justice,
which must be established beyond reasonable doubt (See Solicitor-Generaadio Avoo Avon Ltd at p234).ccept that in resp respect of such attacks, a defence is available of honest and fair comment o basis of faof facts tstated
of justification or truth. Mr. Chaudhry did notd not invoke either by way of defence, and, and we consider his counsel’s concn
that his remarks amounted to contempt on purely common-laon-law principles was rightly made.
The Constitutiomal Impact
As recordrlier in this this judgment, s13(2) of the 1990 Constitution provided that nothing containeany law should be held to be
inconsi with with, or in contravention of, s13(1) protecrotecting freedom of expression, to the extent that it made provision for
the purpose (among other things) of aining the authority and iand independence of the courts. We have no doubt that such laws would
include the common-law provisions relating to contempt under its various headings such as disobee of a court order, conductnduct
prejudicing a fair trial and statements scandalising the court, except so far as they are shown not to be reasonably justifiable
in a democratic society, this being the overall qualificatios13(2). 160; &##160;ـ 16ere maye maye may be a question of where
the onus lies of persuading the court on this qualification, but this was noted onappea incline to the view that the answer sher
should not depend on narrow consideratierations oons of the burden of proof, but should be resolved by having regard to all the material
before the Court in the light of judicial knowledge and experience, and in accordance with the Constitution’s manifest intention.
&#
<160;
.&p>a. #160;#160; t&##160;;< be60;be ‘rationallyeconnected’ to the objective and not be arbitrary, unfair or based on irrational considerations; <#160;;ټ &ـimpair the right ight ight or fror freedomeedom in question ‘as little as poss possible’; andc. ـ҈ &160; be such that thfir es on thon the limitation of rights and and freedoms are proportionate to the obje.
In Naland Richardson J on J adopted broadly similar considerations in #160;Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA).e havn no ted cases ofes of scandalising contempt ther there since the passage of the Bill of Riof Rights Act, but the courts have
had to der its impact on other forms of contempt likely to interfere with a fair trial: see <160;Solr-General v Radi Radio New Zealand Ltd [11 NZLR 48 and Duff v Commdo Lad&#/u>&#/u> [1996] 2 NZLR 89.
Rpyto is this the leading Can autn authority on thect of the Charter on the ofhe offence of scandalising the Court. In that the majority
(3-2 (3-2) of the Ontario Court of Appeaowed peal by a lawyer wyer against his conviction for contempt impt in respect of an emotive
statement that the courts were warped in favo the police. Cory and GoodmGoodman JJA held that the offence asgeharged did not meet
the proportionality test referred to above. To do so, they said it would have to provide and be proved that the words complained
of produced real, substantial and iate danger to the proper ader administration of justice. This is muc same as the &#he “clear
and present danger” test adopted in the United States (see for example Craig v Harney[1947] USSC 124; 331 US 367 [1947] inying its constituttitutional guarantees of free speech. their view the offence as constituted by the common
law, law, lacking this requirement, did not impose a reasonable limitation to thht to freedom of expressionssion. Houlden JA (the
other member of the majority) went further and held that even if the offence re-defined to d to include such a requirement of immediate
danger, it would still be inconsistent with the Charter and he consid#160; it was no longer of any force.
With rtspec t wek hink hink the majority view phe thresholeshold unduly high. fect it means that scandalandalising contempt would
be virtually impossible to establish, a fact acknowd by ast onadian commentator whor who said it was reasonable to assume thae that
this form of contempt no longer exir exists in the light of R v Kopyt (Martin,&tin, Media Law in C #160;(1997)). There have been no reported cases of scandalising contempt sinen. In Fiji, s(b) of the ConstConstitution affords explicit
protection to laws aimed imed at maintaining the authority and independence o cournd the qualificatfication about reasonable justification
at the end must be interpreted witd with this in mind. We prefer the “real risk” test accepted by the New Zealand Court
of Appeal in Solicitor-General vo Avoo Avon Ltd. at p234.his accords with with the general common-law view reflected in
The e ‘real risk’ test may exonerate angry outbursts by disappointed litigants or their counsel (as was evidently the
situation in Kopy>) since reasonable able people would understand them for whey were and would not trea treat them seriously; indeed this point
was made by Judges in that case. There may also be room by gy with the defence of fair fair comment for the voicing of genuine
cions about judiciudicial misconduct in the absence of hardence. This may be for the wider publnefit by signalling thng the need
for open debateebate and enquiry, which are the hall-marka truly democratic society.iety. In the long run it cannot be good for the
administration of justice for such misgivings to be repressed, especially if they are felt by responsible citizens. However, Mr Chaudhry’s
statement went far beyond the voicing of mere suspicions. We are satisfiat his consiconsidered and unsubstantiated allegations
of corru were were serious enough to coute a real risk to thto the authority and independence of the Courts, and we agree with Fatiaki
J that the charge against hs probr>
Result
16>
The appeal is dismissed. A60; As it raised an tant tant Constitutional question, we do not think Mr. Chaudhry should be required
to pay costs in this Court and we make no order for them.
 (Appeal dismissed.)<
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