Guest v Reginam [1978] FJSC 35; Criminal Appeal 032 of 1978 (26 May 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No. 32 of 1978

Between:

STAFFORD LOUIS KEITH GUEST

And

REGINAM

JUDGMENT

Section 244C of the Criminal Procedure Code provides that it shall not be lawful to publish or broadcast the evidence given before a magistrate's court in the course of committal proceedings resulting in an accused person being committed to the Supreme Court for trial by a Judge and assessors, unless the magistrate's court waives this protection on an application by the accused person. If a report is published or broadcast in contravention of this section the sentence prescribed by the legislature is a fine not exceeding $1,000.

On the 27th April 1978 at Suva Magistrates Court the appellant was convicted on his own plea of publishing unauthorised matters in a report of committal proceedings contrary to section 244C of the Criminal Procedure Code and was sentenced to the maximum fine of $1,000. He has appealed on the grounds that the fine is excessive.

Statutory maximum sentences provided by the legislature are intended to act as a deterrent in respect of the most serious offences of the type prescribed by statute; and for most offences the maximum sentence theoretically possible is in excess of what the Court is normally prepared to uphold even for the worst examples of a particular kind of offence. However so far as this type of offence is concerned the converse applies, and it is difficult to conceive that anyone could believe that a maximum penalty of $1,000 would operate as a meaningful deterrent in the case of a daily newspaper with a countrywide circulation. Be that as it may, the normal principles of sentencing must be applied.

The salient facts are that during December 1977 committal proceedings were being conducted by Lautoka Magistrates Court to determine whether there was sufficient evidence to warrant committing an accused person to the Supreme Court for trial on a charge of murder before a judge and assessors; and on the 21st December, at which time the appellant was effectively the editor of the Fiji Sun newspaper, it published a report of the evidence given at these committal proceedings identifying the accused as the person who killed the victim by plunging a knife into his chest.

The gravamen of the offence is interference with the proper administration of justice by prejudicing the prospects of a fair and impartial trial. Magna Carta (1297) 25 EDW. 1 proclaims: "nor will we condemn any freeman by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right". These historic safeguards of the liberty of the individual are preserved by the Fiji Constitution which provides, inter alia, that every person in Fiji is entitled to the protection of the law and to a fair hearing by an independent and impartial court established by law.

How can these principles be upheld, and be seen to be upheld, and an accused person assured of a "fair" hearing by an "impartial" court if a newspaper publishes, for every prospective assessor in Fiji to read, incriminating details of the crime alleged to have been committed by an accused?

The Court has to take into account not only that justice may not be done, but the equally important consideration that justice may not appear to be done.

Even though a trial is to be held by a judge alone or by a professional Magistrate, who would not be prejudiced by extraneous matter, pre-trial publicity can be of such a nature as to create the impression in the eyes of the public, including the accused person, that it would prejudicially affect the outcome of the trial.

The principles involved are well illustrated by a recent case in Scotland (Glover v. London Weekend Television Ltd. (1978) 4 C.L.B. 297) in which a nursing sister was charged with endangering life by attempting to block the air supply to an unconscious patient who had suffered severe brain damage and was under intensive care. The nurse pleaded not guilty, and on the day before her trial was due to begin a television programme was screened featuring the issue of whether treatment should be withdrawn from certain accident victims who were unlikely to recover consciousness. The programme referred to the impending trial and to other similar cases, but was careful to point out that the nurse had pleaded not guilty and it avoided any detailed discussion of her case.

On the following day the trial was deferred in the lower court and the nurse petitioned the High Court on the grounds that the programme was likely to prejudice the prospects of a fair and impartial trial and so amounted to contempt of court. The High Court stated that it entertained "the gravest doubt whether fair and impartial trial of the petitioner ... is now possible"; and was of opinion that the result would have been the same even if the programme had made no reference to her trial. Those responsible for the television programme were found to be in contempt of court, and the television company was fined the equivalent of $100,000, the editor and the managing director were each fined $10,000, and the producer $2,000. Subsequently, the Lord Advocate of Scotland announced that in the circumstances the trial of the nurse would be discontinued.

In the circumstances of the instant case the newspaper report potentially could not have been more damaging, purporting as it did to identify the accused as a murderer, rendering him liable to the supreme penalty of death; and I am in no doubt that the offence committed by the appellant is sufficiently serious to justify the maximum sentence.

It has been submitted on his behalf that he is a first offender and acted in ignorance; but when, as in this case, a deterrent sentence is warranted, individual considerations are irrelevant.

The appeal is dismissed.

Clifford H. Grant
Chief Justice

Suva,
26th may 1978.