In re Parmanandam [1972] FJSC 3; No 90 of 1972 (29 May 1972)

IN THE SUPREME COURT OF FIJI

NO. 90 OF 1972

IN THE MATTER OF AN APPLICATION BY THE ATTORNEY-GENERAL FOR FIJI FOR AN ORDER OF COMMITTAL FOR CONTEMPT.
AND IN THE MATTER OF ONE VIJAYA PARMANANDAM
DECISION

This is an application for Discharge under Order 52 Rule 8 of the Rules of the Supreme Court of Fiji, the first ground being that the Warrant for Committal dated the 9^th day of May 1972 was irregular in that it did not follow the terms of the Judgment given by the Court on that date or the Order drawn and engrossed pursuant thereto but was made as if the applicant had been convicted of a criminal offence and sentenced to serve a term of imprisonment in a criminal case and in substantial conformity with the form of warrant of commitment on a conviction where the punishment is by imprisonment prescribed under the Penal Code; the second and third grounds being that the applicant has suffered in various respects as a result of this irregularity; the fourth ground being that having regard to all the circumstances of the case there has been sufficient compliance with the terms of the Judgment of the Court or the Order made thereon so as to meet the requirements of justice generally. In an affidavit filed by the applicant these grounds are enlarged upon in so far as they relate to the treatment of the applicant and to his conduct; and paragraph 14 of the applicant’s affidavit contains a form of apology which I am treating as an additional ground.

In support of the application, counsel for the applicant contended that the nature of the contempt cannot convert the type of proceedings (under Order 52) into something else other than civil. I would point out that the converse of this proposition is that the type of proceedings cannot convert the nature of the contempt into something else other than criminal. I do not consider it necessary to go into the procedural history prior to the coming into operation of Order 52 Rule (1) of the English Rules of the Supreme Court 1965 on which the Rules of the Supreme Court of Fiji 1968 are based, except to say that it put an end to a certain amount of confusion which had existed in the past as to whether the appropriate method of procedure was by way of attachment or committal (the differences being admirably explained in the Footnote in Re Evans (1893) 1Ch. 252 at 259 et seq.); but it did not abolish the distinction between criminal and civil contempt and scandalizing the Court continued to be a criminal contempt.

Counsel for the applicant submitted that, if scandalizing the Court was a criminal contempt for all purposes, then the Court would have been bound to act under Section 3 of the Criminal Procedure Code which prescribes the procedure for dealing with offences; and it is implicit in this submission that, the contempt proceedings having been brought under Order 52 of the Rules of the Supreme Court of Fiji, the Court acted outside the ambit of Section 3 of the Criminal Procedure Code. I am unable to agree.

Section 3 of the Criminal Procedure Code is in the following terms:

“3.(1) All other (sic) offences under the Penal Code shall be in inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be inquired into, tried, and, otherwise dealt with according to the same provisions, subject, however, to any enactment for the time being in force regulating the manner or place of inquiring into, trying, or otherwise dealing with such offences.

(3) Provided, however, and notwithstanding anything in this Code contained, the Supreme Court may, subject to the provisions of any law for the time being in force in Fiji, in exercising its criminal jurisdiction in respect of any matter or thing to which the procedure prescribed by this Code is inapplicable, exercise such jurisdiction according to the course of procedure and practice observed by and before Her Majesty’s High Court of Justice in England at the date of the coming into operation of this Code.”

With regard to the first subsection relating to offences under the Penal Code, Section 2(c) of the Penal Code declares that except as thereinafter provided nothing in the Penal Code shall affect the power of any court to punish a person for contempt of such court, Section 128(1) constitutes as statutory offences certain acts and omissions relating to judicial proceedings which are in the nature of contempts of Court, Section 128(2) provides a simplified procedure for dealing with a number of those offences, and Section 128(3) declares that the provisions of Section 128 shall be deemed to be in addition to and not in derogation from the power of the Supreme Court to punish for contempt of Court.

With regard to the second subsection relating to offences under any other law, the requirement for such offences to be dealt with in accordance with the subsequent provisions of the Criminal Procedure code is expressly subject to any enactment for the time being in force regulating the manner or place of inquiring into, trying, or otherwise dealing with such offences. The contempt committed by the applicant is of (O’Shea v. O’Shea [1890] UKLawRpPro 11; (1890) 15 P.D. 59), proceedings in the Supreme Court in respect of same are regulated by Order 52 of the Rules of the Supreme Court, in exercising its powers under Order 52, acted within the ambit of Section 3 of the Criminal Procedure Code.

In view of the fact that the second subsection covers the position, I do not consider it necessary to comment on the discretion power of the Supreme Court conferred by the third subsection.

Counsel for the applicant sought next to draw a distinction between an Order of Committal and an Order of Imprisonment and submitted that there was irregularity in that the Court in its Judgment ordered that the applicant be committed to prison for the space of six months whereas the Warrant for Committal directed that the applicant be imprisoned for the space of six months.

I am of the opinion that there is no distinction between an Order of Committal and an Order of Imprisonment, that the terms “committed to prison” and “be imprisoned” are identical in meaning, and that the consequences that follow are the same whichever be the words used.

“Committal” means, inter alia, a warrant or order for imprisonment (The Shorter Oxford English Dictionary, Third Edition, Volume 1, Page 350) and is defined by Whaton’s Law Lexicon (14^th Edition, pages 218 and 219) as “the sending a person to prison by warrant or order, either for a crime, contempt, or contumacy ... and the sending to prison pending his trial ... of a person charged with an indictable offence, in a case where the evidence is sufficient.”

By was of illustration that an order of committal and an order of imprisonment are synonyms I refer to a paragraph in Smith and Hogan’s Criminal Law (1^st Edition, at page 44) which reads “Criminal contempt is a common law misdemeanour which may be dealt with either on indictment in accordance with ordinary criminal procedure or under the jurisdiction of the superior courts to punish contempt by the summary process of attachment or committal. The object of the proceeding is punitive, and a fine or a sentence for a definite term or imprisonment may be imposed.” (The underlining is mine and not that of the authors).

As counsel for the applicant has referred me to the wording of a specimen Warrant for Committal contained in Atkin’s Court Forms, Second Edition, Volume XII, at pages 147 and 148, I would add that I am also of the view that in a Warrant for Committal there is no difference in meaning in a direction to the prison authorities to “imprison” a person or to “detain and keep in safe custody”; imprisonment being the restraint of a person’s liberty under the custody of another (Whaton’s Law Lexicon, 14^th Edition, page 496).

I have carefully compared the Judgment of the Court, the Order of the Court and the Warrant for Committal and am satisfied that there is no conflict between same and no irregularity in the Warrant.

The manner in which a person who has been committed to prison for criminal contempt is treated by the prison authorities is not a matter for the Court. It is governed by such legislation as there may be regulating the treatment of prisoners and it is a matter for the prison authorities.

The first ground raised by the applicant accordingly fails, as do the second and third grounds which are dependant thereon.

In regard to the fourth ground, I am of the opinion that having regard to the circumstances of the case it cannot be said that there has been sufficient compliance with the terms of the Judgment of the Court or the Order made thereon so as to meet the requirements of justice generally.

I have given careful consideration to paragraph 14(d) of the applicant’s affidavit which is in the following terms:

“(d) that having regard to all the circumstances I UNRESERVEDLY and HUMBLY tender my apologies to the Honourable the Chief Justice of Fiji, the Honourable Puisne Judges of Fiji and the Courts of Fiji and express my profound and DEEP regret in this matter.”

The fact that in paragraph 14(d) the word “unreservedly” is used does not convert what is not an unreserved apology into one which is. Paragraph 14(d) cannot be viewed in isolation but must be considered in the context of the whole of the applicant’s affidavit and in that light it does not constitute an unqualified and unconditional apology. I am quite unable to treat it as a sincere purging of his contempt.

The question to which reference was made on the hearing of the application as to whether a genuine, unqualified and unconditional apology would affect any right of appeal which the applicant may be advised to pursue, is not a matter for the Supreme Court.

The application is refused.

(Clifford H. Grant)
JUDGE

Suva
29^th May, 1972