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Papua New Guinea Law Reports |
[1979] PNGLR 448 - Public Prosecutor v Nahau Rooney (No 2)
SC163
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
THE PUBLIC PROSECUTOR
V
NAHAU ROONEY (NO. 2)
Waigani
Raine DCJ Saldanha Kearney Wilson Greville Smith JJ
27-31 August 1979
2-5 September 1979
11 September 1979
CONTEMPT - What constitutes - Sub judice - Interference with course of justice and administration of law - Prejudicing fair hearing - Proceedings “pending” - Letter written by Minister for Justice to Chief Justice of Supreme Court - Real risk of prejudice to proceedings - Whether Ministers of State have immunity - Freedom of expression distinguished - Whether “direction” within s. 157[dlxxxi]1 of Constitution - Contempt established - Constitution of the Independent State of Papua New Guinea, ss. 23[dlxxxii]2, 37[dlxxxiii]3, 46[dlxxxiv]4, 160[dlxxxv]5, 99[dlxxxvi]6 and 157[dlxxxvii]7.
CONTEMPT - What constitutes - Scandalizing courts and judges - General principles - Statements published to media for further publication over radio and in press - Statements published by Minister for Justice - “No confidence in Chief Justice and other judges” - “Judiciary no longer doing justice” - Whether Ministers of State have immunity - Freedom of expression - Contempt established - Constitution of the Independent State of Papua New Guinea, ss. 23[dlxxxviii]8, 37[dlxxxix]9, 46[dxc]10, 99[dxci]11, 157[dxcii]12 and 160[dxciii]13.
CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Rule of law in democracy - Separation of powers - Independence of the judiciary - meaning of “directions” in respect of the exercise of judicial powers or functions - Constitution, ss. 157[dxciv]14 and 99[dxcv]15.
CONTEMPT - Power of court to punish - Supreme Court - No immunity from punishment - Imprisonment appropriate for serious contempt - Relevant considerations - Overriding desire and need to protect society - Sentencing approaches generally - Contempt sub judice and contempt of scandalizing court - Contempt by Minister for Justice - Imprisonment with light labour for eight months imposed.
CRIMINAL LAW - Sentencing - Principles generally - Contempt - Supreme Court - No immunity from punishment - Imprisonment appropriate for serious contempt - Relevant considerations - Over-riding desire and need to protect society - The deterrent sentence - The denunciatory sentence - Purposes of punishment - Sentence to be fairly proportionate to gravity of offence - Sentencing court to show strength and determination but with restraint.
CONTEMPT - Practice and procedure - Locus standi of individual in instituting proceedings - Semble no right in representative capacity.
On 7th June, 1979, Dr. Premdas, a lecturer in politics at the University of Papua New Guinea, an American citizen and the holder of an entry permit to Papua New Guinea valid for the duration of his employment, which was to terminate sometime in 1982, had his entry permit revoked by the Minister for Foreign Affairs. Following a review of that decision by a Committee of Review pursuant to the provisions of the Migration Act 1963, on 28th June, 1979, Dr. Premdas was informed that the decision had been upheld and that he was to leave the country on or before 4th July, 1979. On 3rd July, 1979, Dr. Premdas instituted an action in the National Court, against the State, the Minister for Foreign Affairs and Trade and the Committee of Review, alleging that his basic rights and the principles of natural justice had been violated and should be protected and enforced, and sought an injunction restraining his deportation.
On 4th July, 1979, Pritchard J., in the National Court, decided that as questions regarding the interpretation of the Constitution of the Independent State of Papua New Guinea were involved, the matter would have to be referred to the Supreme Court, (which was done) and granted an injunction prohibiting any action to effect deportation until 3rd August, 1979, being the last day of the next sittings of the Supreme Court.
On 11th July, 1979, the Minister for Justice the Honourable Mrs. Nahau Rooney, wrote on her official (the Minister’s) letterhead a long letter to the Chief Justice of the Supreme Court (set out fully at p. 453) containing material highly critical of the court and judges; the letter was circulated by the Minister to about forty-five of the most “issue conscious” people in the Nation.
On 13th July, 1979, the Chief Justice replied to that letter and correspondence ensued between the two (set out fully at p. 454 to p. 456).
On 20th July, 1979, the Chief Justice, revealed the existence of the correspondence in open court, and it was subsequently published in the Post Courier newspaper on two consecutive days.
On 20th July, 1979, in an item in an evening news broadcast it was stated:
“Commenting on the Chief Justice’s statement, the Justice Minister, Mrs. Nahau Rooney, said this evening that she had no confidence in the Chief Justice and other judges. Mrs. Rooney said it appears that the foreign judges on the bench are only interested in administration of foreign laws, and not the feelings and aspirations of the Nation’s political leaders.”
On 23rd July, 1979, the Post Courier newspaper published the following report:
“Mrs. Rooney on Friday said that she would not retract what she had said because the judiciary is no longer doing justice.”
On 2nd August, 1979, the leader of the Opposition by notice of motion filed in the Supreme Court moved, as Leader of the Opposition and as representative of the people of Papua and New Guinea, the Supreme Court for an order that the Minister be committed to prison for contempt of Court.
On 6th August, 1979, the Public Prosecutor also instituted proceedings for contempt and the Leader of the Opposition withdrew his motion. These proceedings involved three charges, the first based on the letter of 11th July, 1979, framed so as to seek to raise a case of contempt sub judice, and the second and third charges alleging that the court was scandalised, or could be, by the publication respectively of the words on the radio on 20th July, 1979, and the words in the Post Courier newspaper on 23rd July, 1979.
Held
N1>(1) Conduct will amount to contempt sub judice where it presents a real risk as opposed to a mere possibility, of interference with the due administration of justice, or it creates a real risk of actual prejudice to the trial of pending proceedings.
Attorney-General v. Times Newspapers Ltd., [1973] 3 All E.R. 54, at pp. 60 and 66, adopted and applied.
N1>(2) (Kearney J. dissenting) There being proceedings pending before the Supreme Court, on 11th July, 1979, (see The State v. Rooney (No. 1), [1979] P.N.G.L.R. 403), by the sending and dissemination of the letter of 11th July, 1979, to the Chief Justice of the Supreme Court, the Minister intended to prejudice the fair hearing of that matter, and was guilty beyond all reasonable doubt of contempt of court on the first charge.
N1>(3) (Per Kearney J.) There being a real risk that the recipients of the letter of 11th July, 1979, apart from the judges of the Supreme Court, might well construe the letter as creating a public suspicion, (all be it groundless), that the decision of the Supreme Court would be made as a result of executive pressure and hostility rather than solely on the merits of the issues presented in court, contempt was thereby committed in impairing the public confidence in the impartial administration of justice.
R. v. Duffy; Ex parte Nash, [1960] 2 Q.B. 188, at p. 189, referred to.
N1>(4) (Per Wilson J. with whom Greville Smith J. agreed) The letter of 11th July, 1979, from the Minister to the Chief Justice of the Supreme Court, prefaced as it was with an acknowledgement of s. 157 of the Constitution of the Independent State of Papua New Guinea, could not be regarded as a direction “to any court, or to a member of any court, ... in respect of the exercise of judicial powers or functions” within the meaning of s. 157 of the Constitution.
N1>(5) Any act done or writing published which is calculated to bring a court or a judge into contempt, to lower its or his authority, or to interfere with the due course of justice or the lawful process of the court, amounts to contempt known as contempt scandalising the court.
N1>(6) The statement by the Minister broadcast on radio that she, the Minister for Justice, had no confidence in the Chief Justice and the other judges, was calculated to bring the courts and the judges into contempt and to lower their authority, and accordingly the Minister was guilty beyond all reasonable doubt of contempt scandalising the court on the second charge.
N1>(7) The words published in the Post Courier newspaper on 23rd July, 1979, were uttered by the Minister for the purpose of publication and amounted to contempt, scandalising the court and the Minister was guilty on the third charge.
N1>(8) (Per Wilson J. with whom Raine Dep. C.J., Saldanha J., and Greville Smith J. agreed) The power to punish for contempt of court is expressly reserved to the Supreme Court by s. 160(2) of the Constitution of the Independent State of Papua New Guinea.
N1>(9) (Per Wilson J., with whom Raine Dep. C.J., Saldanha J., and Greville Smith J. agreed) Section 46 of the Constitution of the Independent State of Papua New Guinea limits the field of operation of the law of contempt if what might otherwise have been regarded at common law as contempt of court, may be characterised as the legitimate exercise of the right to freedom of expression and which is qualified by the instructions expressed in the Constitution itself; it afforded no protection against the contempt of court found against the Minister.
(Raine Dep. C.J., Saldanha J., Kearney J., Wilson., Greville Smith J.)
N1>(10) (Per Wilson J., with whom Raine Dep. C.J., Saldanha J., and Greville Smith J. agreed) All persons guilty of contempt of the Supreme Court are liable to be punished for that offence: members of the National Executive Council acting in their capacities as such are not immune.
N1>(11) (Per Wilson J., with whom Raine Dep. C.J., Saldanha J., and Greville Smith J. agreed, Kearney J. dissenting) Imprisonment for contempt of court should only be imposed where a serious contempt has been committed: in deciding whether a sub judice contempt involving wide publication of the contemptuous statement is serious enough to warrant imprisonment, it is relevant to consider inter alia:
N2>(a) the real likelihood of interference with the due course of justice;
N2>(b) the extent to which the law has been brought into disrespect or disregard;
N2>(c) the culpability of the offender;
N2>(d) the intention with which the act complained of is done;
N2>(e) whether the desire and need to protect society should override the interests of the individual concerned.
Re Davies [1888] UKLawRpKQB 112; (1888), 21 Q.B.D. 236;
Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon[1968] EWCA Civ 5; , [1969] 1 Q.B. 577;
McLeod v. St. Aubyn[1899] UKLawRpAC 33; , [1899] A.C. 549, at p. 561;
R. v. Commissioner of Police of the Metropolis; Ex parte Blackburn (No. 2), [1968] 2 Q.B. 150, at p. 161; and
Attorney-General for New South Wales v. Mundey, [1972] 2 N.S.W.L.R. 887, at pp. 908 and 916, referred to. General approaches to sentencing task discussed.
N1>(12) (Kearney J. dissenting) The minister should be sentenced on all three charges to imprisonment with light labour for eight months.
N1>(13) Semble (Per Greville Smith J. with whom Wilson J. agreed) The common law right of the individual to test the legality of any conduct of which he disapproves, either on private or on public grounds, by a criminal prosecution, has become part of the law of Papua New Guinea by virtue of Sch. 2.2. of the Constitution.
N1>(14) Quaere (Per Greville Smith J. with whom Wilson J. agreed) Whether the Leader of the Opposition had a right in law to move the court for committal for contempt, as Leader of the Opposition and as representative of the people of Papua New Guinea or in any representative capacity.
Trial
These were proceedings in which the Minister for Justice for Papua New Guinea (the Honourable Mrs. Nahau Rooney) was tried on charges of contempt of the Supreme Court and instituted by notice of motion taken out by the Public Solicitor. There were three charges against the Minister viz. (1) an allegation that she attempted to interfere with the due course of justice by causing to be published and circulated a letter, upon her letterhead, under her signature, bearing the date 11th July, 1979, and addressed to the Honourable the Chief Justice of the Supreme Court, and thereby intended to influence the judges in a case that was pending before the Supreme Court; (2) and (3) allegations that she published to the media for further publication over the radio and in the press, statements which scandalised the judiciary.
Counsel
K. B. Egan and G. Poole, for the Public Prosecutor.
L. J. Priestley, Q.C. with him M. Adams, for the respondent (Minister).
Cur. adv. vult.
11 September 1979
RAINE DCJ: This is a notice of motion instituted by the Public Prosecutor, Mr. Egan, charging the Honourable Nahau Rooney, the Minister for Justice, with contempt of court. It is not the more common case of contempt of court in the face of the court. “Sub judice” contempt is involved in the first charge. The second and third charges allege that things said by the defendant to the media scandalised the court. Initially the matter involved a letter written by the Minister to the Chief Justice, to all the judges, and a large number of senior people, concerning the Premdas affair, and to alleged pronouncements by the Minister to the National Broadcasting Commission and the Post Courier, the latter being the country’s major daily newspaper during weekdays.
The facts are as follows:
N2>1. Dr. Ralph Premdas, a non-national, was a lecturer at the University of Papua New Guinea.
N2>2. The Honourable R. Evara, Minister for Primary Industry, was a former pupil of Premdas, and it is apparent from another case that the Minister and Premdas got on well together, and that the Minister asked Premdas to give him assistance in his Department. This Premdas did for about three months from February 1979.
N2>3. Without going into the rights and wrongs, for there is no need, troubles arose within the Department, which seems not to have liked Premdas at all, although the Minister remained loyal to him.
N2>4. The Prime Minister intervened twice, and was not in favour of Premdas having any role, paid or unpaid, except, as I understand it, on an “out-of-office” hours friendly basis. The Prime Minister complained to the Minister in letters dated 18th April and 8th May, 1979.
N2>5. Dissatisfaction mounted. It has led to all this.
N2>6. Premdas was a lecturer at the University, and possessed an entry permit that allowed him to remain here during his employment. On 31st May, 1979, the Minister for Foreign Affairs and Trade, revoked the permit, such revocation to become effective upon service of the notice of revocation. His contract of employment had not expired when all this occurred.
N2>7. Under s. 7 of the Migration Act 1963 Premdas sought for his case to be reviewed by a Committee of Review.
N2>8. On 20th June he was informed that this would sit, and he was given certain advice as to procedures. The Committee comprised three Ministers. They read the material, but did not permit Premdas to appear before them. On 28th June they informed Premdas that he was to leave here on or before 4th July.
N2>9. He did not do so. On 3rd July he sought declaratory orders as to Constitutional infringements that he alleged.
N2>10. These came before a judge of the National Court very hurriedly. Not unnaturally, his Honour made a holding order, by way of injunction, this on 4th July. This apparently irritated the Honourable the Minister for Justice, who wrote on 11th July the letter following, circulating it very, very widely, as is admitted. It was addressed to the Chief Justice. It reads:
“In writing this letter, I acknowledge section 157 of the constitution which refers to the Independence of the National Judicial system.
However I am writing in my capacity as an elected member, a leader of this country and the Minister responsible for National Justice Administration I see it absolutely necessary to bring to your attention the feelings of the Nation. I now refer to the recent case the State v. Dr. R. Premdas.
The recent decision by the National Court to suspend the deportation order for Dr. Premdas can be clearly seen as a case where a narrow and literal interpretation of the written law was used.
In saying this I believe the court had a responsibility to take into account the reasons that Papua New Guinea or any other country makes provision for deportation in the Migration Act.
The decision to deport Dr. Premdas was made by the Minister for Foreign Relations and Trade and later endorsed by a properly constituted committee of review of three senior Ministers of the Government.
The Ministers made their decision in the belief that the actions of Dr. Premdas may have been detrimental to the sovereignty of the Nation.
It is obvious that no one has deprived Dr. Premdas of his basic human rights or freedom.
The important principle at stake is not simply whether Dr. Premdas has done any wrong to warrant deportation nor whether the procedures employed are correct but whether the Government of Papua New Guinea has the right and power to decide which non-citizens are welcome here and which non-citizens are not welcome.
It is up to the Elected Government and no one else to decide what criteria are used to deport Foreigners.
Neither I nor my Ministerial colleagues understand the meaning of ‘injunction’ ‘prerogative writ’, ‘unconstitutionality of the decision of the review committee’ or any of the other legalistic arguments that are now preceeding. What we do understand is the concept of a Papua New Guinea identity and we believe that it is our right and prerogative to decide which foreigners we want in our country.
The matter of deportation is not a matter of Justice or Injustice because the deportee is not being penalized by imprisonment or being fined in any way. He is merely being told to return to his home country and that he is no longer a welcome visitor to our country.
I believe the principle of being a Papua New Guinean is basic and transcends any semantic or legalistic argument.
In failing to recognize this principle the court has jeopardized its independence and neutrality by intervening in a matter which is obviously the sole prerogative of the Government.
However I ask all members of the Judiciary to make a greater effort to use their discretion effectively to develop the National legal system in the context of a proud and growing National conciousness.” (sic)
N2>11. The Chief Justice replied to this letter on 13th July. His reply was in these terms:
“It is my sad duty to reply to your letter to me of the 11th instant, to which you have seen fit to give a wide distribution.
I am shocked, as I am sure all the judges who are simultaneous recipients would be, at what appear to be the grave improprieties of your letter. The shock is I suppose underlined by the fact that up until now, the relations between Government and the Judiciary in Papua New Guinea have been essentially correct.
I am quite sure that your letter could not have been founded on the views of any lawyer within your Department. But I cannot excuse it on the grounds of ignorance of constitutional matters; because you preface it by reference to Section 157 the Constitution.
On the face of it you have gone out of your way to interfere in a judicial matter which is pending in the Supreme Court of Papua New Guinea (which you yourself on page 2 of your letter acknowledge is ‘now proceeding’) — that matter having been referred there as an unfinished matter of the National Court.
You have expressed a criticism of the National Court decision so far as it goes, as being ‘a narrow and literal interpretation of the written law’ — inferring perhaps that there is some unwritten law on the subject. You purport to assert on behalf of your ministerial colleagues and yourself that you do not understand such terms as ‘injunction’ ‘prerogative writ’ and ‘unconstitutionality ...’ At the same time you refer to a principle that ‘transcends any semantic or legalistic argument’. May I draw your attention to the existence of the phrase ‘prerogative writs’ in Section 155 of the Constitution. I note that you yourself have used the word ‘prerogative’ lower down in your letter. I can assure you that the phrase ‘constitutional rights’ is now understood by a large percentage of the population — certainly those alleged to be law breakers. I should have thought that the word ‘unconstitutionality’ was self-explanatory. An injunction in the first instance is merely an order preventing (usually temporarily as in the instant case), action by some person pending the determination of rights alleged to exist in another person — action that would extinguish those rights if not temporarily prevented.
The judges would not dissent from the proposition that it is for Parliament in accordance with the Constitution, to decide criteria for deporting foreigners.
What has happened here, as I understand it, is that a person subject to a deportation order seeks to invoke the Constitution of Papua New Guinea to allege that certain procedures were incorrectly carried out and/or unconstitutional. No decision has been made on any of the questions raised; but as a perfectly normal procedure of maintaining the status quo and preventing a possible irreversible wrong to an individual, an interim order has been made by the National Court preventing an executive order from being carried out at present. Such a recourse to the Court was had previously, during Sir Maori Kiki’s tenure of the Foreign Affairs portfolio. That matter was settled amicably and without heat.
I am sure that your legal advisers, if you consulted them, would draw your attention to Section 41 the Constitution, which allows the Court to set aside in certain circumstances a perfectly valid order of the Executive. As we know, the Constitution is said to have enshrined the people’s desires.
I note your assertion that you represent the ‘feelings of the nation’. Perhaps this is so; perhaps the nation might think differently from you or me.
But the justices of the National Court and of the Supreme Court are concerned with upholding the Constitution and doing right to all manner of people in accordance therewith (see the Judicial Declaration, Schedule 3 of the Constitution). I feel I must say in the strongest terms, that I consider it was grossly wrong of you to write as you did. My brothers and I are affronted by what you have written, which could well be held to have constituted a serious contempt of court.
I can assure you my dear Minister that judges of the National and Supreme Court will not accept directions from or pressure by the Minister for Justice or anyone else. They will not accept directions or requests as to the exercise of the discretion invested in them by the Constitution and the law. If you reflected, I am sure that you would realise that were they to do so, the whole reputation and standing of the judiciary would be destroyed.
I can assure you that the judges will be true to their judicial declarations. Though they know that they will; it is important that the people not be deluded into thinking that the judges are capable of behaving otherwise. It seems to me that your letter indicates that you do not have a proper appreciation of the checks and balances which the people of Papua New Guinea through the Constituent Assembly deliberately imported into the system — so as to ensure that politicians and other powerful people cannot interfere with the administration of justice.
You are sadly mistaken in confronting the Court in the way that you have done, and in all frankness, we will not tolerate it. We find ourselves very embarrassed by your action. I assure you that we will not be deterred from carrying out to the best of our abilities the role given us by the Constitution.
You have given wide currency to your letter. In any event it will be necessary that the Supreme Court make public your impropriety. Perhaps you have not given thought to the possibility that the parties involved, the Law Officers, and even the Court itself, might feel it necessary to take action to protect the Court against such pressures as you have sought to bring in a pending case.
May I beg of you that you withdraw your letter, and apologise immediately and fully to National and Supreme Courts — with a distribution identical to that your letter has been given. In the hope that you will do so, I did not send copies of this my letter, to the recipients of yours to me. But it is my Constitutional duty I believe, to make representation to the Prime Minister against what I believe to be your unconstitutional attempt to interfere with the Judiciary in its duty.
Believe me.”
N2>12. The Minister then replied on 17th July as follows:
“I am very sorry that my letter to you of July 11th, has upset you so much.
It is obvious that this whole misunderstanding has come about because both of us have a deep appreciation of our responsibilities to this Nation.
When I wrote that letter to you I sincerely believe I was raising some grey areas in which there is a potential area of conflict between the executive and the judiciary for us all to talk about as a matter of principle or subject of discussion, and nothing else.
Please believe me when I wrote in my opening sentence; ‘In writing this letter I acknowledge section 157 of the Constitution which refers to the Independence of the National Court System;’ that I sincerely had no intention to direct or interfere in any decision of the National or the Supreme Court. It is unfortunate that you have read and taken my letter to imply that I do not respect the Independence of the Court. If that was the case, I would not have made this reference.
It is also my belief that it would be wrong for Judges of the National Court and the Supreme Court to ‘accept direction from or pressure by Minister for Justice or anyone else’. In believing, that the Courts are of high integrity there was never any question in my mind that my letter was directing or pressurising.
I too, have made a declaration under schedule 3 of the Constitution — and it is in the spirit of this declaration that I wrote to you fully understanding the seriousness and importance of my actions.
My chief concern is that the integrity of the Government and the citizen’s trust in their elected Government should always be maintained. There should never be any doubt that the Government has the power and authority to act immediately and decisively against any foreigner who may threathen the security or be seen to undermine the sovereignity of the Nation.
It is regretable that I referred to a specific matter currently before the Court.
However I still stand by the principle that I have re-iterated above.
I look forward to the continuance of a good working relationship between myself and all members of the Judiciary based on our mutual respect for each other.” (sic)
N2>13. The Chief Justice wrote the following letter on 18th July:
“I acknowledge receipt of your letter of 17th July.
I note that you have given it a very limited distribution unlike that of yours of 11th July.
I confirm that you asked me yesterday over the phone to sit down with you and discuss the matter, and that I then informed you the circumstances (I was referring to the legal situation) were such that I might not accept your invitation.”
N2>14. The Minister wrote on 19th July to the Chief Justice as follows:
“I refer yours of the 17th of July, 1979. I noted your reference to our telephone conversation of about 3.15 p.m. on the 17th July, 1979.
In this conversation I asked whether I ‘could come and personally deliver the reply to your letter and perhaps discuss the misunderstanding that appears to have arisen between us’.
I noted your refusal to see me with disappointment, and fail to see what ‘legal circumstances’ could prevent our meeting.
I trust that more fruitful dialogue can be established as it is our joint responsibility to the Nation.”
N2>15. This correspondence all appeared in the Post Courier on two consecutive days. The reason was that when the corespondence was first printed mistakes were made by the newspaper. These were corrected on the second occasion. The newspaper was able to print the correspondence because the Chief Justice revealed the existence of the correspondence in open court on 20th July. The Post Courier published the corrupted letters on 23rd July, and the corrected ones on 24th July. On the evening of 20th July the defendant rang the N.B.C. and spoke to the news editor. This led to a news item at 7 p.m. On the same day the defendant had a lengthy discussion with a journalist employed by the Post Courier, one Tarcissius Mansi Bobola.
N2>16. On 20th July Pritchard J. formally referred the Premdas matter to the Supreme Court in reference S.C.R. 1 of 1979 under s. 18 of the Constitution. This date is important as 20th July was subsequent to the writing of the letters, and was also subsequent to statements allegedly made by Mrs. Rooney to the National Broadcasting Commission and the Post Courier, statements which if made were duly published.
N2>17. On 4th September, 1979 the Supreme Court gave its decision in the Premdas reference, holding that his deportation did not infringe the Constitution.
N2>18. On 6th August the contempt matter was mentioned before the Supreme Court. At this point Mr. Baker, instructed by the principal legal adviser, appeared for the Minister, and Mr. Gawi for the Honourable the Leader of the Opposition, on a motion to commit the Minister for contempt, and also in constitutional proceedings with which we are not presently concerned. The Public Prosecutor, Mr. Egan, was in court, and after a time he indicated that he was considering his position. The matter was adjourned until 8th August.
N2>19. On 8th August Mr. Egan undertook to appear as prosecutor in contempt proceedings and to file and serve a notice of motion on Mrs. Rooney the next day. In view of Mr. Egan’s intervention Mr. Gawi withdrew his contempt proceedings, and his constitutional proceedings were stood over.
N2>20. On 10th August the matter was mentioned. Service had by then been effected. A number of necessary orders were made to get the contempt proceedings under way.
N2>21. On 24th August, the contempt proceedings were again mentioned. Mr. Adams appeared for Mrs. Rooney and Mr. Gregory sought leave to appear for the Principal Legal Adviser. We granted him leave provided he limited himself to constitutional matters as opposed to questions of facts bearing on the alleged contempt. Both counsel sought adjournments but we refused the applications and confirmed that the contempt proceedings were to go on 27th August. On 24th August an “apology” by the defendant was handed up. It is now exhibit “A”. It is in the following terms:
“In relation to the charges brought against me I wish to say — that I respect the independence of the judiciary and did not intend improperly to influence the court. I regret that my letter has been given a construction so completely opposed to my own views and feelings. It is, unfortunately, possible that my letter is open to a construction that I never intended and I apologise for the embarrassment that may have been thereby caused to the court. I was not aware that I may have been committing a contempt of court and I had no intention or desire of doing so. I circulated the letter to certain officials only for the reason that I did not wish it to be said that I was acting secretly or in an underhand way.
I see now that, because it was pending, I should not have referred to the Premdas matter; but my comments were intended to relate only to the granting of the injunction and I did not intend to influence the court in relation to its ultimate decision.
As to the other allegations I deny that I made any general criticisms of the courts or the judges. I did make certain remarks that were directed to and resulted from the publicity given to this matter that were of a limited kind but I see now that these remarks are capable of being given an unfortunate construction. However, those remarks were, as I understood it, strictly off the record and never intended for publication.
As Minister for Justice I have every confidence in the courts and the judges and I consider the maintenance of their independence and standing of great importance to the future of constitutional government in this country. Of course, there will and ought to be full and free debate and discussion about all our institutions of government and at times complete frankness may be justified. However, I consider that such discussion should be of a kind as to make a constructive contribution to the development and strengthening of constitutional government in Papua New Guinea and that destructive criticism that does not respect the dignity of our constitutional institutions is strongly to be deplored. I deeply regret it if the court is of the opinion that I have transgressed the proper line.”
N2>22. On 27th August Mr. Egan and Mt. Poole appeared to prosecute, Mr. Priestley Q.C. and Mr. Adams for the defendant, and after an unsuccessful attempt by Mr. Gregory to appear for the Head of State he was granted leave to continue to appear for the Principal Legal Adviser.
N2>23. The hearing proceeded until 5th September, when we reserved our decision.
The matters that we have to consider are:
(a) Several constitutional submissions and submissions going to the very nature of contempt of court
(b) Submissions going to the time factor, see 16. supra
(c) If these submissions fail then a consideration of the facts said to base the prosecution case
It is desirable to deal with the facts first.
THE FACTS GENERALLY
Although the three charges are separate, in the long run I propose to also look at them together.
The first “charge” concerns the letter of 11th July written to the Chief Justice, and widely circulated. The second “charge” relates to an interview the defendant had with Mark Auhova, the N.B.C.’s news editor. The Minister rang the N.B.C. and spoke to a journalist called John Tokunai, who had the Minister connected to Mr. Auhova. As I have said, this was on 20th July, and I find it was at about six o’clock in the evening. The really critical thing about this conversation is that the Minister was pressing Mr. Auhova to give her a say, because he swore that she said, “If the Chief Justice can use the court as a forum to publicise these matters then I want to make a reply to the statement.” If this was said, then with respect, it was most unfair to the Chief Justice, for he was sent a letter, as we all know, with a list of all who received carbon copies, about forty-five of the senior men in the country, many of them with large senior staffs, no doubt these senior staff members were in many cases told of the effect of the Minister’s letter, indeed, given it to read. I might add that in the letters set out under the Minister’s hand in the Post Courier the carbon copies were only expressed to be to all the judges and the Prime Minister. This disguised the real position, if not deliberately. As I say, there were about forty-five recipients, about forty-two in the first batch, then three more to the Leader of the Opposition, his Deputy, and the Honourable Julius Chan, the leader of the Peoples’ Progressive Party.
Mr. Auhova said the Minister told him that she did not think the handing down of the correspondence by the Chief Justice was the right thing to do. Mr. Bobola said the Minister said, “What the Chief Justice did has never been done before.” If these statements are correct, then, in view of the Minister’s gratuitous and utterly unnecessary and wide circulation of her letter to the Chief Justice they were unfair to the latter.
Mr. Auhova says that, inter alia, the defendant urged him, and apparently gave him full authority, to repeat what she said, that she had no confidence in the Chief Justice and the other judges. This went over the air at 7 p.m.
That night, much later, Mr. Bobola had his conference with the Minister (see 15. above). He obviously thought she was speaking on the record, and he repeated what she said in a news item in the Post Courier on the 23rd. It read:
“Mrs. Rooney on Friday said she would not retract what she had said, because the judiciary is no longer doing justice.”
FIRST CHARGE — FINDINGS OF FACT
No difficulties arise here. There is no contest as to the defendant’s letter of 11th July having been sent, or that the subsequent correspondence took place, or that the Chief Justice revealed this on the afternoon of Friday, 20th July, in open court, together with a statement in the following terms:
“Certain letters have recently passed between the Minister for Justice and myself, following the grant of an injunction and a reference to the Supreme Court of Constitutional questions raised in the National Court in the Premdas case.
I consider it necessary now that that correspondence be published, in fairness to the parties in a pending case, so that Justice may not only be done but be seen to be done, and so that the good name of the courts may be defended.
It will be seen that in her first letter the Minister purports to be speaking on the subject on the part also of ‘ministerial colleagues’. On receiving that letter, I immediately attended upon the Prime Minister and pointed out to him the gravity and implications of its contents. He informed me that he has received a copy of the letter. Since then I have become aware that that letter has received a much wider currency than appeared on its original wide distribution list.
The judges have waited for some sign of activity on the part of the law officers and/or the Government to indicate that the independence and integrity of the court as required by the Constitution were being supported; and indicating dissociation from the letter’s contents. None that we know of has been forthcoming.
We think our view that such inaction may have grave Constitutional consequences, should be made known.
We invite the Government to act in the appropriate manner in defence of the Constitution and the courts.”
There is also no denial of the fact that the defendant sent copies to about forty-five prominent people in the Government, the Public Service and to each of the judges.
Mr. Buri Kidu, the former Principal Legal Adviser, gave evidence for the Minister. Of course, she was Mr. Kidu’s Minister. She showed him the letter of the 11th July on that day and he advised her not to send it, telling her it would upset the Chief Justice and the judges as being seen to be interference by her. He also warned her that if the Opposition got hold of the letter it could say the same thing. At this stage the Minister had not sent a copy to Mr. Okuk. She did send one on the 13th, with a covering letter, plus one to the Leader’s Deputy. Mr. Kidu also warned the defendant that the Ombudsman might take action against her under the Leadership Code. The letter was not written on Mr. Kidu’s advice. Indeed, he knew nothing of it until shown it by the Minister. His advice was not sought beforehand and such advice as he gave on the 11th was not heeded. He did not know who drafted the letter. The defendant was not called so we will never know. I imagine that the defendant would have had some legal assistance, for she is not a lawyer.
Thus I am satisfied beyond reasonable doubt that the letter of 11th July was written, signed, and published in the manner set out above.
SECOND CHARGE — FINDINGS OF FACT (N.B.C. NEWS ITEM)
The only witnesses as to this charge are Messrs. Mark Auhova and Buri Kidu. To a significant extent they are in conflict. Mr. Auhova was the N.B.C.’s news editor on 20th July. He was called by the prosecution. He says that he had a telephone call passed on to him by a journalist named John Tokunai, and that it was the defendant on the line, to whom he spoke. He denies that she said their conversation was off the record and that she wanted a reporter sent to her. In fact he says, and I accept him, that he could not have complied with such a request had it been made. Far from the defendant asserting the conversation was off the record the witness said that she was badgering him to publish her various views and that she commenced by saying that if the Chief Justice could use the court as a forum to publicise the matter then she wanted to make a reply to his statement. The witness said that the defendant made a number of assertions about nationalizing the bench, foreign judges and foreign laws. He says he refused to agree to publish on three or four occasions on account of possible contempt of court.
Mr. Kidu, with great frankness, swore that when he overheard what he believes was a telephone conversation in the Ministerial office between the defendant and Mark Auhova, both he and she were in an emotional state. He said that when she got the Chief Justice’s letter on 13th July she looked a bit upset. On the 20th he says that she was very emotional — not normal. He said, “We were shouting.” Indeed, it was an emotionally charged evening, as the Chief Justice, in the afternoon, had given the Minister a Roland for her own widely publicised Oliver. On the highest of probabilities I find that Auhova is correct when he says that she urged him, pressed him hard, to let her have her say. I accept that she finally said to him that she had no confidence in the Chief Justice and other judges and that he could quote her on that.
I resolve the conflict between Messrs. Auhova and Kidu in the former’s favour. This in no way reflects on Mr. Kidu’s credit.
I have already mentioned that he freely volunteered that both he and the Minister were shouting, and that they were emotional. He was sitting at a coffee table glancing idly at a magazine, and also he could not hear what the caller said at the other end of the line. He was in a hurry to get away to an official function. He very frankly admitted that there were a number of things he could not recollect one way or the other. He had no reason, as it were, to put on his “thinking cap”. But Auhova did, for he appreciated the “sub judice” situation. Why would he ring Mr. Kidu at home, and subsequently at the Islander, when told that was where he could be found, had he been told and believed that all the Minister had said was off the record? Mr. Kidu agrees that some time after he arrived at the Ombudsman’s reception, maybe five or ten minutes, he was called inside the hotel from the poolside bar to take Auhova’s call. Mr. Kidu had to leave the Minister’s office, get outside, get in his car, go the short distance to the Islander, park, walk in, be introduced, then go to the poolside bar, then some time elapsed, and he was called to the inside telephone. He says he heard the 6 p.m. news on his car radio, it could well have been about 6.15 to 6.25 p.m. when Auhova called, and this is close enough to the time he thought his conversation with the defendant ended. Mr. Kidu could not say whether the Minister was still in conversation when he left her room.
Mr. Priestley’s arguments on the factual issues were persuasive, but not persuasive enough for me.
However, in relation to the news sheet exhibit which reads:
“Mrs. Rooney said it appears that the foreign judges on the bench are only interested in the administration of foreign laws, and not the feelings and aspirations of the nations political leaders.”
(The underlining is mine.) I am not satisfied that the underlined words might not have been slightly corrupted. This was very much a summary of what was obviously something said during an excitable and probably irritable tirade. There is quite a nasty sting in the underlined words, if they were used. But there is a real possibility that what was said was not put in quite such a way.
THIRD CHARGE — FINDINGS OF FACT (POST COURIER)
Here no evidence was led by the defence. The only evidence that could have been led would have been from the defendant. She has not chosen to go into evidence, as is her right.
The prosecution called Mr. Tarcissius Bobola. He is presently a sub-editor with Post Courier, at the relevant time he was a journalist, and was on duty on the evening of 20th July.
It is not suggested that he did not have a conversation with the defendant on that day. I find that it occurred after about 11.15 p.m. following his being sent to the defendant’s home at Boroko. Primarily Mr. Bobola went to see the defendant to get a better copy, or original, of the original letter or letters disclosed that afternoon by the Chief Justice. It seems that the paper’s presses had difficulty in reproducing the copies they had. But Mr. Bobola had heard the 7 p.m. news and asked the Minister about it. He takes a sort of shorthand, and he had his notes in court. I gather that it is a mixture of the real thing and a home grown product of his own. I might say, it’s important to do so, that Mr. Bobola is a mature young man, I would guess in his mid or late twenties, an intelligent person I thought, and he had a very good command of the English language. He seemed a confident and relaxed witness. Originally he would not assist the prosecution we were told. I set no store on this, he ultimately did, and seemed pretty objective to me. He gave evidence that was potentially harmful to the defendant, and, rather amicably, made an important concession to Mr. Priestley, which needs to be discussed with all care. He conceded he might have misunderstood whether or not she was talking off the record. If so, then why did he record in his note book what she said, after deliberately refraining from doing so earlier? This was not a trivial affair. Much was involved. This could not have been lost on Bobola.
As in the case of Auhova, no attempt was made to attack the credit of Bobola, I mean in the sense of bias, and so on.
I think that the first thing one must do, in assessing both the evidence of Messrs. Auhova and Bobola, is to look at the tone of the Minister’s letter of 11th July, and her emotional behaviour on 20th July. Her whole behaviour makes it so probable that all she wanted to do, as I observed before, was to make a Roland for an Oliver. I have not the slightest doubt that she was assertive, angry, and determined to exert her will. The fact is that she was indifferent to protests, fairly strong in the case of Auhova, less so in the case of Bobola. She wanted her way. She got it. She gained her wider audience, and did so with determination. Speaking for myself, it is a great pity that this comparatively inexperienced lady should have worked herself up into this needless rage, which she was venting on us, the judges.
I do not accept Mr. Priestley’s submission that the kindly concession he managed to obtain from Mr. Bobola gives the defendant a decisive advantage. I rate this as a case where Bobola, being asked questions in a pleasant and charming way by Mr. Priestley, deferred to senior counsel out of Melanesian politeness and niceness. But I accept Mr. Bobola’s evidence in chief. The last thing in the world he would have done, in an obviously controversial matter such as this, was to expose his employers to contempt proceedings of a more serious kind.
SOME GENERAL OBSERVATIONS ON THE SECOND AND THIRD CHARGES
Firstly, it is not without significance, although I suppose it is not conclusive, that on the one night two professional journalists, and not cub journalists at that, should have committed a great journalistic sin, and published off the record material, and this in respect of something dramatic and important, involving people with the highest rank in the community.
Secondly, Mr. Auhova said, and I accept him, that he told the defendant he would check with Mr. Kidu. This was apparently a fairly standard procedure. Had Mr. Kidu been in the office with his Minister she would obviously have put Kidu on the line then and there. She did not.
Thirdly, I mentioned coincidence, when making my first point. It is dangerous to rely too much on coincidence. However, I would point out that Bobola was told by the Minister that she was dissatisfied with the 7 p.m. N.B.C. news item. One imagines he would have been well and truly on guard when she complained to him about the N.B.C. broadcast at 7 p.m.
GENERALLY ON WHAT WAS MEANT BY THE DEFENDANT’S LETTER OF 11TH JULY
Mr. Priestley, with skill, sought to have us regard this letter as being one written in the past tense, relating only to the past. It is true that what Pritchard J. did, and he really could have done nothing else, on what was before him, was the immediate cause of setting the kettle boiling. But the letter went, indubitably, from the past event, into the future. I am quite unimpressed by this argument, with all respect to it.
I will now turn to some earlier arguments before considering what the effect is of my factual findings as above. I now turn to consideration of the other two issues I set out in par. 23 above.
Firstly, as to par. 23(b), I wrote a judgment on a no case submission being made. Counsel have this. With the exception of Kearney J. my brethren agreed with me. This dissent went only to the first charge. I have not changed my mind since delivering that judgment. As a matter of law I believe that we must consider whether the letter of 11th July constituted a contempt of court.
Secondly, as to the earlier constitutional submissions, see par. 23(a) above, it is now apparent that Mr. Priestley has withdrawn, very largely, these earlier submissions, rightly so in my view. It is only what I would have expected from Mr. Priestley, and I thank him for his frankness. However, he keeps his original submissions alive to the extent that the Constitution’s effect, is that the prosecution has an even greater onus in a case such as this, and that we should view the facts with even greater anxiety than we undoubtedly would in a criminal case where the burden of proof requires that we should be satisfied beyond reasonable doubt before deciding that the defendant was guilty of all or any of the charges.
INTENTION
A great deal of emphasis has been placed on the question of intention, in particular on intention to publish, as opposed to making observations in mere conversation, where even if it could be said there might be a technical contempt it would hardly warrant prosecution, let alone punishment.
So far as the letter of 11th July is concerned it was published very widely, and this was clearly intended.
As for the second and third charges, in her then frame of mind I have no doubt at all that the defendant desired to strike out publicly, and did so quite deliberately.
OTHER MATTERS
Before dealing with contempt generally, and the alleged contempt in particular, I would wish to set out what Lord Atkin said in Ambard v. Attorney-General of Trinidad and Tobago[dxcvi]16, and I wish it to be appreciated that I pay real heed to the words I have underlined. His Lordship said:
“But whether the authority and position of an individual judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”
Of course, in Papua New Guinea, freedom of expression and publication is preserved under the Constitution, subject to certain exceptions and possible exceptions.
In this case the first charge is so framed as to seek to raise a case of contempt “sub judice”. The second and third charges allege that the court was scandalized, or, could be, by the publication of words I find to have been deliberately uttered by the defendant with the intent that they become published on the air and in the press.
Mr. Priestley, in addressing himself generally to the law relating to contempt of court, relied heavily on a judgment of Mr. Justice Hope in Attorney-General for New South Wales v. Mundey[dxcvii]17. Firstly it is a very different case to this one. Secondly, with the deepest respect to a most learned judge, I have never felt able to accept his Honour’s findings in that celebrated case, and this colours my approach to it, wrongly I imagine, because it is principle I should look for I suppose.
In examining this matter, so far as the first charge is concerned, I do not find it necessary to go beyond one of the legion of cases cited to us. It is Attorney-General v. Times Newspapers Ltd.[dxcviii]18. It is a decision of the House of Lords arising out of the Distillers’ production of the drug thalidomide, which resulted in many women giving birth to tragically deformed children. Although it was an injunction matter, the question of contempt of court was vital. It was a decision of a really very strong House, Lords Reid, Morris, Diplock, Simon and Cross. It was decided “immediately before Independence Day”. See Sch. 2.2 of the Constitution. Of course we are not bound to apply “the principles of common law and equity in England” immediately prior to Independence. See Sch. 2.2(1). But I see no good reason not to apply the Distillers’ case to this one. With great respect I agree with Lord Reid when in his Lordship’s speech he said that the law was uncertain and that[dxcix]19:
“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.”
As I recall Mr. Priestley’s argument, this fits in with his submissions as to the rather blurred boundaries, namely, boundaries separating permissible and impermissible zones, which one might find when considering a case like the present one.
In the Distillers’ case Lord Reid[dc]20, Lord Morris of Borth-y-Gest[dci]21, Lord Diplock[dcii]22, Lord Simon of Glaisdale (by clear implication) and Lord Cross of Chelsea[dciii]23 (as I understand it), say or infer in their speeches, as stated in the headnote[dciv]24, that,
“Conduct amounts to contempt where it presents a real risk, as opposed to a mere possibility, of interference with the due administration of justice.”
The only other matter I desire to advert to is what is the way to approach a situation where it could be that there was a technical contempt, but where the nature of it, and other circumstances surrounding it, might make it “de minimis”, and bring about a negative finding. It must be remembered that we are not proceeding by way of indictment, although the form of the proceedings have been in the form of a trial. However, we are proceeding in a summary way, “strictu senso”, although not in the truly summary way we are familiar with where a trial judge, for instance, calls a man up to show cause “instanter” who commits contempt of the court in the face of the court, or seems to do so.
A dramatic example of this is related in Australian Law Journal (1973), vol. 47, at pp. 275 and 349.
As argument progressed it seemed to me that both leading counsel were attacking the matter as if it was a “rolled up” sort of problem. Lord Reid did not think so in the Distillers’ case[dcv]25. It seems to me that Isaacs and Rich JJ. shared the same view. See Bell v. Stewart[dcvi]26. With respect, this seems a much tidier approach, and one I am used to dealing with under the Criminal Code Act.
Thus I propose to consider whether there has been contempt, and this first of all. If I feel beyond doubt that the defendant is guilty, I will then move on to consider the question of sentence, if any.
CONCLUSION
I deal firstly with the letter of 11th July from the defendant to the Chief Justice. There was a lot more in it than what Lord Atkin described as “wrong headed”. It was couched in arrogant and aggressive terms, terms that were assertive; the Executive, through the Minister for Justice, was said to be the ultimate, or near ultimate repository of power. The judiciary was plainly told to “toe the line”, and this in really inexcusable terms. The opening two lines, purporting to acknowledge s. 157 of the Constitution, were no more than a sop. The words “It is up to the Elected Government and no one else to decide what criteria are used to deport foreigners” were clearly intimidatory. I might add that I am not easily intimidated, but that was what was clearly intended. Witness the defendant’s underlining of the words “no one else”.
The defendant “let the cat out of the bag” when later, on 13th July, she wrote to the Honourable the Leader of the Opposition. She sent him, and two others, copies of her letter of 11th July, and with it she sent a covering letter. It is part of exhibit “B”.
The last two paragraphs read:
“However my letter to the Chief Justice which has also been circulated to all members of the judiciary and to all Ministers is concerned with the fundamental issue of the separation of powers between the judiciary and the legislature. It must be remembered that the power of the judiciary has been given to them by the elected legislature.
This issue effects (sic) any Government now and in the future.” (The underlining is mine.)
It is beyond all doubt that the letter of 11th July was a serious contempt of court. It has all the badges, or stamps, or whatever one likes to call them, that signify this. However, I think there might be a variety of views as to how far it should be said to go, simply standing alone. Some may feel it is more important, and more contemptuous, than the subsequent publications I find were made by the defendant. I incline to the opposite view.
Put in a homely way, I think we are all, up to a point, likely to make a mistake, particularly when, as was obviously the case here, up in arms. That is one thing, one might subsequently regret it, and express regret. One might be punished or reproved. But when the mistake, and the defendant was warned not to publish the letter by Mr. Kidu, is followed up by two determined attacks on the Chief Justice and his judges, and this following the Chief Justice’s own letter, and Mr. Kidu’s earlier warning, then a very different state of affairs is seen. The letter is then seen, as a result of the subsequent publications, as being as determined as it appears to be on the face of it, and the subsequent publications are better understood because of what went before. The fact that they all spring from no less a member of society than the Minister for Justice is critical.
I have not the slightest doubt in my mind that the letter of 11th July constituted a contempt of court. Premdas and his advisers might well have thought “Well, what’s the use, we cannot win in the ultimate.” Members of the public might have thought that somebody like the Minister could, in her position of power, usurp the power that she had. Others might think that we judges could be affected, or say that we were, or might be. As to the last matter, this is, of course, utter rubbish. I do not, nor do my brothers, take directions from anybody, unless they are proper directions. These proper directions generally stem from the legislature and the Constitution, and, of course, in administrative matters there are well understood conventions, and we are only too happy to go along with these once they are established. Last week I completed my ninth year in this country as a judge, and more lately as Deputy Chief Justice. This has been a sad case for me because, before this, the apparent, I think real, mutual regard and respect between my bench and the Executive was never in jeopardy to my knowledge. Inevitably we have had small areas of disagreement, never anything like this.
Before proceeding to the second and third charges I would observe that this is an unusual case and I have found it hard to make much, if any, distinction between the first charge and the second and third, whilst appreciating very well the usual distinction between “sub judice” contempts and contempts that scandalise the courts. But here the alleged contempts seem to me to merge into each other and constitute a continuing transaction, appreciating as I do that following the defendant’s more conciliatory letter to the Chief Justice of 17th July came the release of all the correspondence on the afternoon of the 20th. This refuelled the earlier fire. I well appreciate that the first charge strikes at the defendant’s words to Auhova when she said that it appeared that the foreign judges were only interested in administering foreign laws and not the feelings and aspirations of the Nation’s political leaders, and further said that she had no confidence in the Chief Justice and other judges. This is claimed to contain “material that had a real and definite tendency to prejudice or embarrass these pending proceedings or which as a matter of practical reality tended to interfere with the due course of justice in these proceedings and which also created a real and definite tendency to prejudice or embarrass the fair trial of these proceedings.” (See the amended notice of motion.) The other two charges are only said to scandalise the judges. However, as I have said, the three transactions largely merge together.
In my opinion, viewing the first charge in isolation, I do not believe that the letter of 11th July would deter the Premdas Supreme Court from seeking to do its duty, it has often been said that a judge’s training allows him to put aside matters that might well not be put aside by a juror. But it is essential for the performance of one’s judicial tasks to embark on them calmly and with a feeling of security, and anything that imperils this imperils judgment. Judges are but men, and as susceptible as others to human problems. But this problem was one that was a serious one indeed, affecting the judges as judges. Their minds could have been affected.
The letter was very widely circulated. It could well have resulted, once it became known to Premdas and his advisers, for them to have said “Oh, what’s the use, we can’t win”, and withdrawn from the proceedings. The fact that they did not is not to the point. They may well have. There was a grave risk that this could have occurred, it was a real risk.
In my opinion the letter of 11th July had a very real tendency to undermine the administration of justice and, although I do not put this as high as the other two matters I have dealt with, could weaken the confidence of the public in the system of law that obtains here, and its administration by this Court. In view of the way this matter has proceeded, it was conducted like a trial in nearly every respect, except that there was no indictment, and the Public Prosecutor was the moving party, not the State, I think it was proper to proceed summarily.
So far as the second and third charges are concerned there can be no argument that the things they disclose are contemptuous. As I said earlier, the defendant acted, in her then frame of mind, with deliberation. There can be no warrant for a Minister for Justice saying what she did about her Chief Justice and judges.
The notice of motion succeeds and I would find the defendant guilty of contempt of court as charged.
PENALTY
I had prepared reasons for the sentence I think is appropriate, but since doing so have had the opportunity to read what Wilson J. has to say on the subject. I prefer my brother’s reasons to mine, and respectfully adopt them.
I might observe that there is a good deal in the reasons for sentence given by Wilson J. which goes to the question of conviction, and I adopt what his Honour says in that connection.
I would sentence the defendant to be imprisoned with light labour for a period of eight months.
SALDANHA J: Dr. Premdas was a lecturer in politics at the University of Papua New Guinea. He was an American citizen and the holder of an entry permit valid for the duration of his employment which was to terminate sometime in 1982.
For a period of three months or so from the beginning of February 1979, he assisted Mr. Roy Evara, the Minister for Primary Industry, in the organization and administration of his Department. This led to difficulties with the head of the Department who complained to the Prime Minister. The Prime Minister wrote two letters to Mr. Evara requesting him to dismiss Dr. Premdas. Mr. Evara failed to carry out the Prime Minister’s instructions. The rights and wrongs of Dr. Premdas’ employment in the Department of Primary Industry are not relevant for present purposes. I suppose the Prime Minister could have dismissed Mr. Evara as Minister for disobeying his orders. Again we are not concerned to know why the Prime Minister did not do so. It may be that an easier and quicker solution to this problem — the line of least resistance if you like — was to get rid of Dr. Premdas. By notice dated 7th June, 1979, Mr. Ebia Olewale, Minister for Foreign Affairs and Trade revoked his entry permit, gave him two weeks to leave and threatened to deport him if he did not leave within that time.
A Committee of Review appointed by the Prime Minister under the provisions of the Migration Act 1963, reviewed the Minister’s decision and upheld it. On 3rd July, 1979, Dr. Premdas brought an action in the National Court against the State, the Minister for Foreign Affairs and Trade and the Committee of Review alleging that his basic rights and the principles of natural justice under the Constitution had been violated and should be protected and enforced by the court, and praying that he be not deported. At the same time he applied for an injunction that the Minister for Foreign Affairs and Trade be restrained from deporting him.
The matter came up before Pritchard J., who decided on 4th July, that as questions regarding the interpretation of the Constitution were involved the matter would have to be referred to the Supreme Court. He granted the injunction and made an order restraining the Minister for Foreign Affairs and Trade from taking any action to effect the deportation order until 3rd August, 1979, being the last day of the Supreme Court sittings commencing on 30th July.
On 11th July, 1979, Mrs. Nahau Rooney, the Minister for Justice (hereinafter referred to as “the Minister”) wrote a letter to the Chief Justice. This letter and the correspondence that followed between herself and the Chief Justice, and her letter to Mr. Okuk, the Leader of the Opposition, have been fully set out in the judgment of the Deputy Chief Justice which I have had the advantage of reading in draft form and there is no need for me to set it all out again.
On 20th July, 1979, the following item was broadcast on the radio on the 7 p.m. news programme:
“Commenting on the Chief Justice’s statement, the Justice Minister, Mrs. Nahau Rooney, said this evening she had no confidence in the Chief Justice and other judges. Mrs. Rooney said it appears that the foreign judges on the bench are only interested in administration of foreign laws, and not the feelings and aspirations of the Nation’s political leaders.”
On 23rd July, 1979, the Post Courier newspaper published the following report:
“Mrs. Rooney on Friday said that she would not retract what she had said because the judiciary is no longer doing justice.”
By notice of motion filed in the Supreme Court on 2nd August, 1979, the Leader of the Opposition referring to passages in the Minister’s letters to the Chief Justice dated 11th July and 17th July and the radio broadcast on 20th July moved the court for an order that the Minister be committed to prison for contempt of court.
Mr. Egan, the Public Prosecutor, intervened and took over the prosecution. He filed an amended notice of motion charging the Minister with the offence of criminal contempt of court. He alleged that the letter of 11th July “contained material that had a real and definite tendency to prejudice or embarrass these pending proceedings or which as a matter of practical reality tended to interfere with the due course of justice in these proceedings and which also created a real and definite tendency to prejudice or embarrass the fair trial of these proceedings.” He alleged that the news item broadcast on the radio at 7 p.m. on 20th July, 1979, and the item published in the Post Courier on 23rd July scandalized the judges of the Supreme and National Courts.
Before considering whether or not the Minister is guilty of the charges brought against her it is necessary to decide what law is applicable. The Minister’s counsel, Mr. Priestley, urges us to adopt the American approach. He says that s. 46 of the Constitution which provides for freedom of expression is similar to the American legislation on freedom of expression. He says that in the United States of America the concept of contempt of court is narrower than that in England and Australia. The question appears to be to what extent freedom of expression should be restricted by the law of contempt or, in other words, the problem that arises is the need to strike a balance between the ideal in a democratic society to permit maximum freedom of expression with the need to safeguard the administration of justice from undue interference. I think it is too late in the day for this court to embark upon such speculations. These were matters proper for consideration by the Constitutional Planning Committee who made recommendations and the members of the Constituent Assembly who drew up the Constitution. We have no choice as to the law to be applied. Our duty is to find out what the law in our jurisdiction on this subject is and then to apply it.
Section 24 of the Constitution provides that the report of the Constitutional Planning Committee (in addition to other materials) may be used as an aid to the interpretation of any provision of a constitutional law. The recommendations regarding freedom of expression are contained at p. 5/1/11 of the report. There is no suggestion that the American approach should be adopted, as is done in the recommendation at p. 5/1/10 regarding protection of the law, which is to the effect that it “is the equivalent of the ‘due process’ provision in the United States Constitution.”
The relevant part of Sch. 2.2 of the Constitution provides as follows:
“Adoption of a common law
N2>(1) Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that:
(a) they are inconsistent with a Constitutional Law or a statute; or
(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or
(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1.”
I see nothing in the English law on ‘contempt’ that is inconsistent with a constitutional law or statute or custom and nothing that makes it inapplicable or inappropriate to the circumstances of the country at the present time. I am of the view therefore that the law applicable in the proceedings before us is the English law on contempt of court. The statement of the law of England is set out in Halsbury’s Laws of England (4th ed., vol. 9), at pp. 7, 8, and 21, in the following terms (omitting irrelevant parts):
“CONDUCT AMOUNTING TO CONTEMPT. In general terms, words spoken or otherwise published, or acts done, outside court which are intended or likely to interfere with or obstruct the fair administration of justice are punishable as criminal contempts of court. The commonest examples of such contempts are: (1) publications which are intended or likely to prejudice the fair trial or conduct of criminal or civil proceedings; (2) publications which prejudge issues in pending proceedings; (3) publications which scandalise, or otherwise lower the authority of, the court;”
“ ‘TENDING’ OR ‘INTENDED’ TO PREJUDICE. For a publication to amount to a contempt, it is not necessary that it should be shown actually to prejudice a fair trial or the conduct of the proceedings. The true test appears to be whether the publication is likely or tends to prejudice the trial or conduct of the action ...”
“SCANDALISING THE COURT. Any act done or writing published which is calculated to bring a court or a judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of court ...”
All three charges are alleged by the prosecution to be in relation to the Supreme Court. The first charge is laid on the sub judice basis, namely, on the ground that the statements and comments the Minister made in her letter to the Chief Justice dated 11th July, 1979, were made about proceedings pending before the Supreme Court. In the ruling delivered by the Deputy Chief Justice on the “no case” submission made by Mr. Priestley — a ruling to which I subscribed — the Deputy Chief Justice gave reasons for his finding that the proceedings were pending before the Supreme Court and it is not necessary now for me to repeat them.
To show the necessity for the law of “contempt” and to indicate the restraints within which it operates I can do no better than cite the following passage from the speech of Lord Morris of Borth-y-Gest in Attorney-General v. Times Newspapers Ltd.[dcvii]27:
“In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts of law is to preserve freedom within the law for all well disposed members of the community, it is manifest that the courts must never impose any limitations on free speech or free discussion or free criticism beyond those which are absolutely necessary. When therefore a court has to consider the propriety of some conduct or speech or writing decision will often depend on whether one aspect of the public interest definitely outweighs another aspect of the public interest. Certain aspects of the public interest will be relevant in deciding and assessing whether there has been contempt of court.”
There is ample authority for the proposition that in order to be guilty of contempt of court regarding proceedings which are sub judice it is not necessary that there should be an intention to commit contempt of court. It is sufficient if the statements and comments made had a tendency to interfere with the course of justice or had a tendency to prejudice or embarrass the fair trial of the proceedings.
It is said by the defence that the first twelve paragraphs of the letter of 11th July, were meant as a criticism of the judge who dealt with the matter in the National Court, that par. 13 was mere comment and the final paragraph an exhortation to all judges of the National Court to exercise their discretion more effectively. I am afraid I do not agree. Having first trenchantly criticized the judge who dealt with the matter in the National Court, the Minister was saying in pars. 8 and 9 that only the Government of Papua New Guinea and no one else had the right and power to decide which non-citizens should be deported and which non-citizens should be allowed to stay (underlining hers). She had warned the judges in par. 13 that by intervening in a matter which was the sole prerogative of the Government they had jeopardised their independence and neutrality. The last paragraph was clearly a direction to the judges who would be dealing with the matter in the Supreme Court. It was an attempt to intimidate the judges and to apply pressure to get them to toe the line. Whether that was the intention or not that would be the effect it would be likely to have on the minds of some of those to whom the Minister had circulated the letter, that is to say, some persons who had read the letter would be likely to think that the Minister was trying to intimidate the judges of the Supreme Court, an effect aptly described in the Chief Justice’s reply dated 13th July to the Minister’s letter when he said:
“I can assure you that the judges will be true to their judicial declarations. Though they know that they will; it is important that the people not be deluded into thinking that the judges are capable of behaving otherwise.”
Her exalted status as a Minister would tend to exert greater influence on the minds of ordinary men and make them think that she could intimidate the judges and the circulation of the letter to some forty-odd individuals and persons is proof of her intention to intimidate. In her statement dated 24th July, exhibit “A”, she says:
“I circulated the letter to certain officials only for the reason that I did not wish it to be said that I was acting secretly or in an underhand way.”
To me that sounds false and insincere. It has a hollow ring. I think it is naive to expect us to believe that the Minister, if there was something on her mind that was worrying her, could not have had a quiet word with or written a letter to the Chief Justice without circulating it to some forty-odd influential and issue-conscious people. She did this in order to exert pressure and to be seen to be exerting pressure. She wanted to wield the big stick and wanted everyone to know that she was doing so.
That the Minister’s letter would tend to cause embarrassment and prejudice the fair trial of the proceedings in the Premdas case can be readily shown. The reference by Pritchard J. has been duly dealt with by the Supreme Court which decided that the revocation of the entry permit by the Minister and the decision of the Committee of Review could not be challenged in the courts unless there had been breaches of rights guaranteed by the Constitution and that access to courts could not be denied to persons alleging breaches of the Constitution unless such allegations were trivial, frivolous or vexatious.
Following that decision Dr. Premdas was forced to leave the country. It was part of his case all along that he had been victimized by the Government. It is one of the cardinal principles of our law that justice must not only be done but must be seen to be done. Who can say for certain that Dr. Premdas has not left the country with the impression that the decision of the Supreme Court was not influenced by the Minister’s letter? And who can say for certain that there is not in the minds of some people a lurking suspicion that the judges of the Supreme Court may have been influenced by the Minister?
I am satisfied beyond reasonable doubt of her guilt on the first charge.
In support of the second charge Mr. Egan relies upon the affidavit sworn and the evidence given by Mr. Mark Auhova. His evidence is briefly as follows.
He is the news editor employed by the National Broadcasting Commission (“the N.B.C.”) at Port Moresby. He knew the Minister. He had spoken to her on many occasions in the past in connection with broadcasting material relating to the Department.
On 20th July, 1979, at about 6.10 p.m. a telephone call came from the Minister. It was answered by a certain Mr. Tokanai who had it transferred to Mr. Auhova. She started by saying that if the Chief Justice could use the court as a forum to publish her statements she wanted to make a reply. The Minister was referring to the statement issued and the publication of the letters by the Chief Justice on the afternoon of the same day.
Mr. Auhova thought the matter was sub judice and told her he would not publish anything she said.
But she pressed him three or four times to publish and each time he refused. She spoke about nationalizing the bench and complained about the manner in which the law was being administered. She said the judges were foreigners and the laws they administered were foreign laws. The Minister was talking rapidly and doing all the talking. He cannot recall everything she said but apparently she repeated a number of times the things mentioned above. He took no note of what she said because he did not wish to broadcast what she was saying. But towards the end of her conversation which lasted about twenty minutes the Minister said: “You can quote me on this: I have no confidence in the Chief Justice and the other judges.”
Until this was said he had refused to publish anything but when she said “You can quote me on this” he made a note of what she said and decided to publish. He also decided to publish what she had said previously and of which he had not made a note. He typed on a piece of paper what the Minister had said as to what she could be quoted as saying and typed a summary of what she had said previously from his own recollection. This was typed by the typist, edited by the sub-editor Mr. Lakasa and went on the air on the 7 o’clock news as follows:
“Commenting on the Chief Justice’s statement, the Justice Minister, Mrs. Nahau Rooney, said this evening she had no confidence in the Chief Justice and other judges. Mrs. Rooney said it appears that foreign judges on the bench are only interested in administration of foreign laws, and not the feelings and aspirations of the Nation’s political leaders.”
The first sentence in the above passage concerns what the Minister actually said. The second sentence is a summary of his recollection of what she said.
When cross-examined by Mr. Priestley he denied that the Minister had at any time said that she was speaking off the record, he denied that the Minister had not asked him to publish anything and denied that she had merely asked him to send a reporter so that she could make a statement to him.
He agreed that he had telephoned to Mr. Buri Kidu. He telephoned his house and was told that Mr. Kidu was at the Islander Hotel. So he rang the Islander Hotel got Mr. Kidu on the phone and spoke to him. He told Mr. Kidu the Minister had made a statement. At Mr. Kidu’s request he told him what the Minister had said about not having confidence in the Chief Justice and the other judges. Mr. Kidu said she should not have said that. Later, however, Mr. Kidu said that if the Minister wanted to make a statement it seemed to him it could be broadcast as the court had brought the matter into public debate.
On this charge the defence called two witnesses, namely, Bunam Lakasa, the sub-editor in the N.B.C., and Mr. Buri Kidu.
Mr. Lakasa’s evidence is that at about 8.30 p.m. on 20th July Mrs. Rooney rang him and said: “I am Minister for Justice. I want to make a statement that what came out on the 7 o’clock news was not what I said and it was wrong and this is the statement I want to make.” She then dictated a statement which was read on the 9 o’clock news. He said he rang Mr. Auhova at his house to tell him what the Minister had said but Mr. Auhova was not at home. He did not inform anyone else.
Mr. Buri Kidu’s evidence is briefly as follows. Just after 5 p.m. on 20th July he went to the Minister’s office. They discussed what had happened in the Supreme Court that afternoon. Then the telephone rang. He picked up a magazine and started reading it but he was quite near and could hear what was being said. He heard her say “Mark, this is off the record.” He heard her say that judges were not acting in accord with the circumstances of the country. She wanted Papua New Guineans on the bench. She asked why he hadn’t sent someone round to interview her regarding what had happened in court. She said she had no confidence in the Chief Justice and judges hearing the Premdas case. She said the judges had used the press as a forum and brought the matter before the public.
He left before 6 o’clock because he had to attend a party at the Islander Hotel. He heard the 6 o’clock news on his car radio on the way to the Islander Hotel. He answered Mr. Auhova’s call to him at the Islander Hotel. Mr. Auhova asked if he could publish the Minister’s statement. Mr. Auhova did not read the statement but he told Mr. Auhova he could not see why the Minister’s statement could not be published as the Supreme Court had made the whole thing public.
On being cross-examined he said that on 11th July the Minister came into his office and showed him her letter to the Chief Justice. After reading it he told her not to send it as it would upset the judges, who would look upon it as an interference with their judicial functions. He told her that if the Leader of the Opposition got hold of it he would say the same, and if the Chief Ombudsman got hold of it he might take proceedings against her under the Leadership Code. She had not consulted him before she wrote it. He has no idea who drafted the letter for the Minister. She did not ask him for his opinion. He told her that while the deportation of aliens was a matter for the Executive under the Migration Act 1963, s. 155 of the Constitution gave people access to the courts. He said that on 13th July he himself had received a copy of the Chief Justice’s letter dated 13th July. The Minister had asked him what was meant by contempt of court and he told her. His first impression of her letter to the Chief Justice was that it did not amount to contempt of court and he told her so.
Mr. Kidu has known Mr. Auhova for some four years or more. He often consults him on the question whether material sent to him for publication can safely be published having regard to the law of defamation. Mr. Auhova follows his advice except in borderline cases when he uses his own discretion. He has a high regard for Mr. Auhova’s professional ability and has never had cause to complain about him.
I have set out as fully as necessary the evidence of Mr. Auhova and that of Mr. Kidu — and where the two are in conflict I prefer the evidence of Mr. Auhova. This in no way is meant to reflect on the credit of Mr. Kidu. I have known Mr. Kidu for many years as a man of honour and integrity and I have no cause now to change my views. Mr. Kidu himself has known Mr. Auhova for many years and speaks highly of him. He has no ground for impugning Mr. Auhova’s professional ability and integrity.
Mr. Auhova is a professional journalist and occupies a high and responsible position in the N.B.C. He says he made an exact note of what the Minister said only after she said: “You can quote me on this.” Until then though he was being badgered to publish the Minister’s views he says he refused because he thought the matter was sub judice. I cannot imagine that he invented anything. He was not seeking “copy”. It is not in dispute that it was the Minister who got in touch with him and not the other way round. If all that the Minister was interested in was getting a reporter sent so that she could have her statement recorded why did she have to talk off the record at all? As a professional journalist of integrity I cannot believe that Mr. Auhova would publish anything which he was told was off the record. It is neither in his interests nor in anyone else’s interest that he should do so. But it is understandable that, at first having persistently refused to publish what he thought he should not publish, once he had her authority so to speak when she said “You can quote me” etc., and he decided to publish that, he saw no harm in publishing the rest.
The broadcasting on the radio that the Minister had no confidence in the Chief Justice and the other judges would undoubtedly be calculated to bring the courts and the judges into contempt and to lower their authority.
It is significant that the Minister never told Mr. Auhova that he had incorrectly reported her and never caused to be published that her statement on the 7 o’clock news had been incorrectly broadcast.
Mr. Lakasa was called to say that the Minister rang him on 20th July after the 7 o’clock news to say that she had been incorrectly reported and dictated a correct version for the 9 o’clock news. It would appear that right up to the time when Mr. Auhova gave evidence he was unaware that the Minister had complained. I would have expected that the first person she would have complained to would have been Mr. Auhova. But she never did.
The best evidence of what the Minister said would be the evidence of the Minister herself. She has chosen not to give evidence. She cannot be forced to give evidence. She has a right not to do so and she has exercised that right. I mention this not as an unfavourable comment on her omission to give evidence but to make the point that what she said to Lakasa would be inadmissible as being hearsay. The same comment would apply to the evidence of Bobola regarding what the Minister is alleged to have told him regarding the incorrectness of her statement on the 7 o’clock news.
For these reasons I find the Minister guilty on the second charge.
Mr. Egan called Mr. Tarcissius Bobola, who is employed as a sub-editor by the Post Courier, in support of the third charge. His evidence is briefly as follows. On 20th July the Chief Justice had published the correspondence between himself and the Minister. The copies the Post Courier had received were not suitable for printing and the news editor sent him to the Minister’s residence to try and obtain the originals of certain letters. Armed with the tools of his trade, namely a note book and a pencil, he went to her residence in Boroko and arrived there at about 11.15 p.m. At first they spoke off the record and he made no notes but later she handed him a written statement of what she had caused to be broadcast on the 9 o’clock news. He knew this matter was sub judice and he asked her if she was sure that she wanted it publicized and, when she said she was, he put down the statement, picked up his note book and wrote down in his own brand of speed-writing what the Minister told him. Among other things that the Minister told him and he wrote were the words “Mrs. Rooney on Friday said that she would not retract what she had said because the judiciary is no longer doing Justice.” These words were published in the Post Courier on 23rd July. He had no doubt when she said them and, later when he caused them to be published, that she meant them to be on the record. In cross-examination, however, he said that on thinking things over it is possible that what was meant to be off the record went on record.
I am satisfied that the words were uttered by the Minister for the purpose of publication. The Minister had said a lot off the record. She had spoken for about half an hour and he had made no notes. But when she told him that she was sure that the written statement she had handed him was for publication and he put down the statement and picked up his note book I would have thought that there would have been no doubt in the mind of either of them that what was now being said was on the record. We have been told that the Minister had complained that what she had said off the record had been broadcast on the 7 o’clock news. If this were true I would have expected that on this occasion both would have been on their guard to make sure that this time nothing that was said off the record was published. I might add that both Auhova and Bobola are professional journalists of some experience. Both made notes, Bobola contemporaneously and Auhova some two minutes after the Minister said them, of what was meant to be published. Bobola made no notes of what was meant to be off the record, and Auhova made no notes of what he originally had decided not to publish.
In my view the words I have referred to above, which were published in the Post Courier on 23rd July, undoubtedly amounted to contempt of court. Coming on top of what she had said in her letter to the Chief Justice on 11th July and what she had caused to be broadcast on the 7 o’clock news on 20th July this was highly contemptuous. It was heaping Pelion on Ossa. The words were not uttered in anger on the spur of the moment but said deliberately, defiantly and in cold blood, to be taken down and published. For a Minister of Justice to say this about the judiciary for wide publication in a newspaper is one of the most damaging things she could have done for the administration of justice which it is part of her duty to promote, foster and protect. I can think of few things more calculated to diminish the authority of the courts and belittle and humiliate the judges in the eyes of the public — and bring them into contempt.
I find her guilty on the third charge.
The three charges against the Minister and the particulars in respect of them had been stated separately in the notice of motion and I have dealt with each of them and considered the evidence in respect of each separately. I have found her guilty on each charge. But in order to appreciate the true extent and gravity of her guilt it is necessary, I think, to take a comprehensive view of the three charges, to look at them together in their proper sequence chronologically and not in isolation; and also to have regard to all the surrounding circumstances including the “climate” in which the “contempts” were committed.
Whether the Minister consulted anybody before she wrote the letter we shall never know. She certainly did not consult Mr. Buri Kidu, the principal legal adviser to the National Executive. She showed him the letter after she had written it and he advised her not to send it. She ignored his advice. She must have known she was sailing close to the wind.
The Chief Justice wrote a lengthy reply to her letter going into meticulous detail. He referred to the separation of powers and the dangers of interfering with the administration of justice. He pointed out to her that she could be committing contempt of court, warned her that the letter might have to be published and begged of her to withdraw it and write apologising to the National and Supreme Courts with a distribution identical to that of her original letter. She neither withdrew the letter nor apologised and the distribution of her second letter was not identical to the first.
Immediately on the receipt of the letter the Chief Justice called upon the Prime Minister and pointed out to him the gravity and implications of the contents of the letter. There was no response from the Prime Minister. In her original letter the Minister purported to speak on behalf of her ministerial colleagues and on 20th July when the Chief Justice published the correspondence he adverted to this and expressed surprise that the Government had done nothing to dissociate themselves from the Minister’s letter. Still there was no reaction from the Government.
When the Chief Justice eventually published the correspondence, as he had to do in the public interest and in the interests of the administration of justice, in order to vindicate the dignity and authority of the court and mitigate the damage the Minister had done, the Minister was in high dudgeon. She said that as the Chief Justice had used the press as a forum she had the right to reply. She misunderstood or misrepresented the Chief Justice’s position. The Chief Justice had warned her he might have to publish the correspondence. He had given the Minister and the Government ample time and opportunity to undo the damage the Minister had done. It was necessary to bring the matter out into the open to apprise Dr. Premdas and his legal representatives what the Minister was up to and to let it be known to all and sundry that the judges would not allow themselves to be diverted from the path of duty. The Minister appears to have forgotten that her own letter without good reason had been disseminated to some forty-odd individuals and bodies. It is reasonable to assume that it was seen by many more than the persons and bodies to whom it was sent.
Mr. Auhova for a long time refused to publish the Minister’s statement despite her insistence that she publish until she persuaded him by saying: “You can quote me.” His refusal was on the ground that it was sub judice. Similarly Mr. Bobola was on his guard. He knew that the proceedings that the Minister was talking about were sub judice and he asked her whether she was sure she wanted him to publish the statement. She was defiant and said she was not retracting anything she had said and that the judiciary was no longer doing justice. She was adding insult to injury. So two others, experienced journalists, questioned the wisdom of her commenting on pending proceedings and still she took no notice.
I have shown earlier how necessary it is for an ordered society to observe the rule of law and maintain the authority of the courts and judges. The stand taken by judges against contemptuous remarks and statements is not out of a tender regard for their own feelings and not because they have false ideas of their own dignity. The rule of law is central to a democratic way of life. To their great credit the people of this country through their representatives on the Constituent Assembly at Independence chose a democratic way of life based on the Westminster model. That was only five years ago. So democracy of which freedom and the rule of law are concomitants is a delicate plant in these regions and needs to be carefully tended. “The price of freedom is eternal vigilance” it has been said. And so the judges took the stand they did in the interests of the people of this country and in the interests of posterity. They have been true to their oath of office and true to their Judicial Declaration. They have done their duty. They have defended the Constitution.
It was equally the duty of the Government to defend the Constitution. The preamble to the Constitution under the heading “Basic Social Obligations” says loudly and clearly for all the world to hear:
“WE HEREBY DECLARE that all persons in our country have the following basic obligations to themselves and their descendants, to each other, and to the Nation:
(a) to respect, and to act in the spirit of, this Constitution ...”
Sadly, neither the Minister nor the Government have done this. I had expected from the Government of the day not the faint echo of what the Minister had said, not the stale, banal cliches of yesterday, that they respected the independence and integrity of the judiciary, but a clarion call in ringing and resounding tones that would reverberate throughout the length and breadth of the country and echo down the corridors of time and history for future generations to hear and take heed — that they stood four-square behind the judges defending the integrity of the Constitution. That is what freedom and democracy is all about, not pious platitudes, not empty rhetoric “full of sound and fury signifying nothing” couched in grandiose language and bound between the hard covers of a book entitled “Constitution”. The Constitution is meant to enshrine the highest ideals and the deepest aspirations of the people of this country. It is not to be brushed aside lightly at the capricious whim of a wayward Minister. It must be protected and defended if the national goals mentioned therein are to be achieved and Papua New Guinea is to become a great and prosperous country.
I do not normally use this type of language in my judgments but we do not normally get this type of case. It is the only way I know of bringing home to the Minister, to the Government and to the people of this country the enormity of the Minister’s transgression, that what she did was to dare to pit her puny might, not against unimportant foreign judges administering insignificant foreign laws, but against the majesty of law and justice which the people of this country had freely adopted as their own. And for this she must now be visited with condign punishment as retribution for herself and a deterrent for future would-be offenders.
The principles to be observed in imposing punishment in a case such as this and the authorities in support have been admirably set out by my brother Wilson, whose judgment I have had the advantage of reading in draft form, and, which, with respect, I would wish to adopt.
I would impose upon the Minister a sentence of eight months’ imprisonment with light labour.
KEARNEY J: As a preliminary matter, I record that I have had the benefit of reading the opinion of my brother Greville Smith and agree with his observations on the right of any person to approach the courts to enforce the criminal law. That is a principle of high constitutional importance, and no little practical significance, as the record of the present proceedings indicates. Fortunately, as the Public Prosecutor intervened, we were not left with the bitter reflections of Mr. Justice Montgomery in Canada in Re Ouellet (Nos. 1 and 2)[dcviii]28:
“I fully agree that the Courts should use sparingly the power to punish summarily for contempt, but the present case has convinced me that it is idle to hope for help from the Executive Branch of Government, particularly in that most serious class of cases where the offender is himself a Member of the Executive.”
The background to this case and the issues have been fully set out by the Deputy Chief Justice, and I need not repeat them.
I turn to the first charge, which sets out the various ways in which it was alleged that the publication by the Minister of her letter of 11th July amounted to contempt of court, with regard to Reference proceedings (S.C.R. 1 of 1979) then pending in the Supreme Court.
It is clearly necessary for the Public Prosecutor to establish beyond reasonable doubt that the proceedings were pending at the time of publication. This question was fully argued at the time of a “no case” submission, when the court ruled by majority that, for the purposes of dealing with that submission, the proceedings were pending. I had the misfortune to dissent upon the point. The question goes, of course, to guilt or innocence, and therefore necessarily arises again at the close of the case. On the ultimate issue, there can be no question of my being bound by a ruling of law upon a preliminary issue.
I adhere to the opinion I expressed upon the “no case” submission on this matter, for the reasons I then set out. I will therefore be brief at this stage. The question is, has it been established that the proceedings were pending, when letter was published on or immediately after 11th July? It is clear, from the date of the Reference, that the proceedings were pending on 20th July. Paragraph 18 of the Reference indicates that the questions then referred arose out of the arguments of counsel on 4th July, when the interlocutory injunction was sought and granted. Upon an examination of the reasons for judgment of 4th July, I find that at that time his Honour was considering only the question of interim relief in the National Court, and was doing so upon the basis and in the belief that the applicant was then in the course of approaching the Supreme Court for substantive relief, no doubt pursuant to s. 18 of the Constitution. No such application was in fact ever made. No evidence was adduced to establish the date between 4th July and 20th July, when his Honour was requested to make a Reference. Accordingly, the questions which arose on 4th July were pending in the Supreme Court from 4th July, only if by virtue of the terms of s. 18 of the Constitution itself, they stood automatically referred to the Supreme Court. I am unable to construe s. 18 of the Constitution as having that effect; to the contrary, it contemplates action by the court below.
The conclusion therefore is that it has not been established that the proceedings were pending in this Court at the time the letter was published, and the first charge fails at the outset. The point was said to be a narrow one, in argument; in truth, there are no narrow points where the liberty of the subject is at stake.
Although that disposes of the matter, I consider it desirable to express my views upon substantive aspects of the charge.
The law of contempt exists to protect the administration of justice. That particular aspect of contempt law, known as the sub judice rule, exists to prevent any real risk of prejudice to a fair trial, which could arise if the prerequisites to a fair trial were impaired, in this case by a publication. The law draws a distinction between a publication which is intended to prejudice a fair trial and that which objectively viewed, quite apart from intention, prejudices a fair trial. The former always amounts to a serious contempt, even if there is no real risk of prejudice, as, for example, in the case of a letter to a judge. As to the latter, it amounts to a contempt only if there is a real risk of actual prejudice, a threat so substantial as to require the court to intervene.
In this case the Public Prosecutor first contends that the Minister’s letter manifests an intention to prejudice the fair hearing of the Reference. It is necessary therefore to examine the letter with great care, for any such intention has to be inferred from it, and from the covering letter to the Leader of the Opposition on 13th July. The letter is set out in the opinion of the Deputy Chief Justice.
The first paragraph acknowledges the independence of the national judicial system.
The next three paragraphs, 2-4, clearly deal solely with the judgment of the National Court of 4th July.
The next two paragraphs, 5-6, deal with the Executive decision to deport.
Paragraph 7 is as follows: “It is obvious that no one has deprived Dr. Premdas of his basic human rights.”
To my mind that is a key paragraph in understanding the intention of the letter. The National Court on 4th July had ruled that the various constitutional arguments then raised constituted an arguable case; it was necessary for the applicant to go so far, to secure the interlocutory injunction. It is obvious, I think, that the Minister is here disputing the judge’s ruling of 4th July. Now whether or not Dr. Premdas had been deprived of any human rights, was not a question for the Minister or the Executive branch of Government to decide; the Constitution has entrusted that issue to the courts. A moment’s reflection shows how serious a collision between the Executive and the Constitution, appears in those two lines; for if the Executive can determine what is “obvious” in a dispute between citizen and State, then the totalitarian State is upon us. It is clear from the letter to the Leader of the Opposition that the Minister was concerned to properly define the separation of powers between the Executive and judicial branches, on matters of deportation. It is therefore a tragic irony that in undertaking this exercise, and asserting the power of the Executive to deport — in considerable measure quite correctly, as the ultimate Supreme Court decision on the Reference appears to indicate — the Minister has strayed into the field of judicial power.
Paragraph 8 then compounds the error, and error it is, for when the principles at stake are constitutional issues, by definition they are of the utmost importance.
Paragraph 9 indicates quite clearly that underlying the letter — indeed explaining its somewhat heated and impatient tone is the wording of s. 61 AA of the Migration Act 1967. As par. 16 of the Reference makes clear, the only argument advanced by the Executive on 4th July “was that because of s. 61 AA of the Migration Act the court had no power to intervene in the subject matter”. Section 61 AA is of such importance in understanding the intention that it should be set out in full:
N2>“S61AA. No Appeal Against Decision of Minister, Etc
(1) No act, proposed act or decision of the Minister relating to the grant or revocation of an entry permit or to the deportation of any non-national, nor any decision of a Committee of Review under Section 7, is open to review or challenge in any court on any ground whatsoever.
(2) Without limiting the generality of Subsection (1), the expression ‘review or challenge’ in that subsection includes:
(a) a writ of certiorari, prohibition or mandamus or other form of prerogative writ, or other writ, order or process in the nature of such a writ; or
(b) proceedings by way of appeal or for a writ, order or process referred to in paragraph (a) (including proceedings for an order Nisi or to show cause why relief should not be granted).”
Any ordinary person, reading such a provision of an Act of Parliament, might be excused for believing that it debarred the possibility of judicial review. But s. 61 AA was passed into law in 1975, prior to Independence. Since Independence, the Migration Act and every other Act has to be read subject to the Constitution.
To my mind it is clear that to this point in the letter the Minister has been directing attention to past events, and to her view of the correct legal position.
In par. 10 appears the first reference to what could be pending proceedings, in the phrase “or any of the other legalistic arguments that are now preceeding (sic).” However, reading the paragraph as a whole it appears to me that the Minister is reiterating her arguments based on s. 61 AA of the Migration Act. Paragraph 11 would appear to support that view, the thrust of it being that what is involved in matters of deportation is the exercise of executive power, as, indeed, I said myself in Schuiling v. Krau[dcix]29.
Paragraph 12 is a statement of national belief; it does not appear to assist in interpretation.
Paragraph 13 is important. It must be remembered that as at 11th July, there was in fact no process, no document, no determined and ascertainable question in tangible form before the Supreme Court; it is therefore in my opinion a straining of language to read “the court ... by intervening” as a reference to the Supreme Court. As at 11th July, in no meaningful sense of the word, had the Supreme Court intervened; at most, by operation of s. 18 of the Constitution, certain questions stood automatically referred to it, as this Court has ruled. Paragraph 13 can however be clearly and meaningfully construed, in the light of what went before, as a criticism of the National Court, for its judgment of 4th July. It is to my mind crystal clear that this is its meaning, in its context. The intervention to which the complaint is directed, is the interlocutory injunction which, on the very day that Dr. Premdas was required to depart, prevented the Executive from enforcing its edict. In the light of the Minister’s understanding of the freedom of the Executive from judicial control, as stated in s. 61 AA of the Migration Act, that injunction was clearly the focus of her attention; at that stage, it was the only judicial act which had occurred.
The letter concludes with paragraph 14, an exhortation which I have seen before in the publications of the Law Reform Commission, of which the Minister was formerly a member. It was suggested in argument that the letter, and par. 14 in particular, amounted to a direction to the Supreme Court of the type specifically put beyond the power of the Minister to give, by s. 157 of the Constitution; there is no substance in that suggestion, in my opinion.
I should perhaps add that I do not think that the Minister’s later letter of 17th July, particularly the statement therein “It is regretable (sic) that I refered (sic) to a specific matter currently before the Court”, has any bearing upon her intention on 11th July. Her letter of 17th July was in reply to the Chief Justice’s letter of 13th July, in which the Chief Justice stated “... you have gone out of your way to interfere in a judicial matter which is pending in the Supreme Court ...” The Minister quite obviously accepted what the Chief Justice said; as would anyone.
That then was the letter of 11th July, a publication which to my mind was clearly intended as a trenchant, forthright criticism of the National Court judgment of 4th July. I am satisfied beyond the slightest doubt that it was not directed at any proceedings before the Supreme Court. Whether it amounts to a contempt of the National Court is not in issue in these proceedings.
It follows that I would reject the submission that the Minister intended by her letter, to prejudice in any way the fair hearing of the Reference.
A letter may however amount to a contempt if, viewed objectively — that is, quite apart from the true intention of the writer — it creates a real risk of actual prejudice to the trial of the pending proceedings. Various other verbal tests relating to when sub judice contempt in these circumstances is made out, have been propounded: “a real and definite tendency to prejudice or embarrass pending proceedings” and “as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case” and “whether the words complained of create a serious risk that the course of justice may be interfered with” but they all appear to be to similar effect.
I had some difficulty in understanding the nature of the risk or risks of prejudice allegedly created by the letter of 11th July. As I finally understood the Public Prosecutor, the allegation was that the letter created three risks. First, it constituted a rebuke to the judiciary in respect of a decided matter. Second, it was a covert, and possibly overt, threat to the judiciary in respect of its hearing and decision of the pending case. This threat consisted of the direct pressure exerted by the criticisms in the letter; and an indirect pressure, in that failure to rule in the way the writer preferred, would expose the judges to ridicule — and it was in this connexion that the nature and degree of publication was very important. Forty-five or forty-six of the most senior and issue-conscious people in the community had been circulated.
Third, the letter impaired the public interest in the impartial administration of justice by creating a public suspicion (albeit groundless) that the decision would be made as a result of Executive pressure and hostility rather than solely on the merits of the issues presented in court; this perhaps puts the last point a slightly different way. As Mr. Egan put it succinctly, the letter told the judges to “toe the line”.
I deal first with the risk of prejudice to the administration of justice, due to the letter’s effect upon the minds of the judges of the Supreme Court. Mr. Egan relied upon the short term nature of judicial appointments and the status of the contemnor — the fact that the Minister was a member, in fact, under the Organic Law ex-officio chairman with a casting vote — of the Judicial and Legal Services Commission, which appoints the judges.
Despite these arguments, I would dismiss this contention out of hand. As the Deputy Chief Justice said earlier in these proceedings, when dealing with the question of the appearances of impartiality of this Court, “we are judges and not jurors”. By their training and position, judges are not likely to be influenced by any prejudicial comment. That applies here as well as in other Commonwealth countries. I adopt, with respect, the views of five judges of a strong Divisional Court in R. v. Duffy; Ex parte Nash[dcx]30, in dealing with the effect of a publication upon an appellate judge:
“... it is inconceivable that he would be influenced consciously or unconsciously by it. A judge is in a very different position to a juryman. Though in no sense superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case.”
Certainly, in the absence of a jury, as here, such a contention would be extremely hard to establish.
As to the other point, the risk of impairing public confidence in the administration of justice, I consider that this was established. I am satisfied that recipients of the letter other than the judges, lacking precise knowledge of the issues raised in the litigation, but aware in a general way through newspaper publicity of Dr. Premdas’ challenge to the Executive, might well construe the letter in the manner contended for by the Public Prosecutor, and draw the conclusions he contends for. The risk was very real; thus was contempt committed.
It is appropriate at this point to say that in my opinion the risk was short-lived; it was dissipated in about a week, following the public tabling of the correspondence by the Supreme Court.
One point, common to both second and third charges, can be disposed of here. Mr. Egan contended that publication to one person — in one case Mr. Auhova, in the other Mr. Bobola — was sufficient to establish contempt; and that the intent that the statements be further published — over the radio and in the Post Courier newspaper, respectively — went to aggravation. I am not aware of any authority in point. But in light of the right to freedom of expression in s. 56 of the Constitution, and the proper scope and ambit of the contempt power, I do not consider that publication to a single individual amounts to a contempt, even a so-called “technical” contempt. There is no scope, I think, for “technical” contempts in our law; a publication is either a contempt and punishable, or not a contempt.
I turn to the second charge. It is regrettable that the Public Prosecutor did not call Mr. John Tokunai, as his evidence might well have cleared up every apparent inconsistency which arose when the evidence of Mr. Auhova was matched with that of Mr. Kidu. However, it appears to me that there was no true inconsistency between these witnesses, and no real doubt was thrown upon the evidence of Mr. Auhova upon the salient point; I accept Mr. Auhova as a witness of truth, and I find that the Minister said to him on the occasion in question:
“Well, you can quote me on this, I have no confidence in the Chief Justice and other judges.”
And this was said, as a quotation for broadcast.
As to the rest of the alleged scandalizing statement, I share the doubts of the Deputy Chief Justice as to the context of that remark, and I exclude it from further consideration.
As to the third charge, I am satisfied for the reasons mentioned by Saldanha J. that the statement in question was made, for publication, on the occasion charged.
The question arises whether a person who supplies material to the news media, which is subsequently broadcast or published in a newspaper, can be said to have published the material. Publication is of the essence of the offence of scandalizing the court; and here it was the National Broadcasting Commission and the Post Courier which published the material to the world, and did the damage. I consider that a person who gives a prejudicial statement for broadcast or publication, is sufficiently involved in the ultimate publication to attract the law of contempt.
I turn to the question of punishment. The present case is fortunately a novelty. It is necessary to put matters in a proper perspective; light is thrown on this by considering comparative approaches in other Commonwealth countries. The following instances include some of the worst cases.
In England, in R. v. Bolam; Ex parte Haigh[dcxi]31, a national newspaper in front page headlines had described Haigh as a “vampire”, gave reasons, and after saying that he had been charged with one murder, went on to say not merely that he was charged with other murders, but that he had committed them, and gave the names of five persons whom it was said he had murdered. Assertion of guilt of crime is the most serious prejudgment of a trial. Lord Goddard C.J. considered the article a disgrace to British journalism, and as violating every principle of justice and fair play. The deliberate purpose was to increase circulation. I consider that this was probably the most serious contempt ever committed in England. The Court imposed a “condign” punishment; the editor was imprisoned for three months, and the publishers fined £10,000.
In England, in R. v. Balfour; Re Stead[dcxii]32, a magazine article commented on an accused man as follows:
“Another rare rogue in the shape of Jabez Balfour was a good deal before the Courts last month. He may re-appear at the Old Bailey, and then we may expect to hear no more of him for some time to come.”
Wills J. said it was “as serious a case as could well be imagined”; there was a qualified apology only, and the publisher was fined £100, with costs.
In New South Wales, in Ex parte Higgs; Re Smith’s Associated Newspapers Ltd.[dcxiii]33, three brothers had been charged with murder when a newspaper published a series of articles discussing possible motives for the crime. Street C.J. held that the articles amounted to a discussion of the guilt or innocence of the men, and described it as a very serious interference with the course of justice. A fine of $200 was imposed, with costs.
In England, in Re Ludlow Charities; Charlton’s Case[dcxiv]34, a barrister M.P. wrote a threatening letter, tending to induce a Master to alter his opinion. After contempt proceedings had started, he wrote a justifying letter to the Lord Chancellor, who held it a very gross contempt, much aggravated. Charlton was released from prison after three weeks, on submitting.
In England, in R. v. Castro; Skipworth’s Case[dcxv]35 a man under indictment for perjury made public speeches attacking the Lord Chief Justice and witnesses, and attempted to prejudice jurors. This was utterly ineffectual but to deter others, Blackburn J. placed him on a bond for £500, not to be guilty of any contempt for three months.
There are many cases involving the publication in newspapers of articles prejudicial to pending cases. For example:
N2>(a) The Finance Union case [Finance Union Yorkshire Provident Assurance Co. v. Review Publishers][dcxvi]36, a “most reprehensible” attempt, fined £10 and costs.
N2>(b) R. v. Gunn; Ex parte Attorney-General (No. 2)[dcxvii]37, where it was intended to bring pressure to bear, to influence a decision; a “grave offence”, for which the editor was fined £500.
N2>(c) Peters v. Bradlaugh[dcxviii]38; Hawkins J. did not think he had seen a worse contempt, but in view of an ample apology imposed a fine of $20 and costs.
N2>(d) Re Crown Bank[dcxix]39, a gross contempt, done deliberately. An apology was offered. The editor was fined £50, and costs.
N2>(e) Felkin v. Herbert[dcxx]40, a gross and wilful contempt. Following a published apology, it was held that ten days’ imprisonment was enough.
In Attorney-General v. Blundell[dcxxi]41 the president of a political party in a speech said “he had never known the Supreme Court to give a decision in favour of the workers where it could possibly avoid it”. He was fined £10, with costs.
In Re Ouellet (Nos. 1 and 2)[dcxxii]42 a federal Minister made disparaging remarks about a trial judge following the acquittal of corporations on charges brought by his Department. On appeal, he was fined $500, but a condition of probation requiring a public apology was struck out.
In the present case, the following mitigating factors, amongst others, require consideration. The novelty of the case. The fact of recent Independence, with the consequence that the proper limits between the arms of Government are still not well recognized, though now we may have had our Marbury v. Madison[dcxxiii]43, a little more quickly than did the Americans. The exceptional nature of contempt proceedings in every way — an aspect of law which requires urgent reform. The failure to deal with those primarily responsible for publication of the statements of 20th July. The published criticisms of the Minister’s conduct. The humiliation to a public figure of being put on trial. The length and strain of trial. The regret expressed.
In my opinion, bearing in mind these matters, on no view of the facts open on the evidence in this case is a sentence of imprisonment warranted.
As to the verbal attacks which formed the scandalizing charges, were an ordinary litigant to have burst forth in this way, he should simply be ignored. Judges’ backs have to be fairly broad; such attacks should be left to public opinion to deal with. Justice is enhanced by tolerance in such cases.
But these scandalizing statements were not made by just anybody; a Minister has considerable credit and authority, especially a Minister for Justice, in relation to courts. The comments must be strongly disapproved. To mark that, bearing in mind the other factors, I would impose a fine of K200 in respect of each of the second and third charges.
As to the first charge, I would dismiss it, for the reason earlier given.
THE INDEPENDENCE OF THE JUDICIARY
WILSON J: The independence of the judiciary is guaranteed by the Constitution of the Independent State of Papua New Guinea itself. The Constitution provides the protective safeguards of judicial independence.
The independence of the judiciary is further recognised in the Criminal Code and, in particular, in those sections which make it an offence for any person to conspire to (s. 131), or attempt to (s. 139) obstruct, prevent, pervert or defeat the course of justice.
The independence of the judiciary is the key to freedom under the law. For evidence that this is so, one needs to look no further than the national goals and directive principles that are stated to underlie the Constitution and, in particular, the first aim, viz. integral human development. This part of the preamble to the Constitution provides:
“We declare our first goal to be for every person to be dynamically involved in the process of freeing himself or herself from every form of domination or oppression so that each man or woman will have the opportunity to develop as a whole person in relationship with others.”
One of the basic rights guaranteed under the Constitution is the right to the full protection of the law which is ensured by a subsidiary right to have the existence or extent of a civil right or obligation determined, in a case going to court, “by an independent and impartial court” (s. 37(1)). In s. 99(3) of the Constitution the notion of the separation of powers is recognised. Section 99(3) provides:
N2>“(3) In principle, the respective powers and functions of the three arms (of government) shall be kept separate from each other.”
Section 157 of the Constitution imposes a duty on the Minister for Justice as the Minister responsible for the national justice administration and on all other persons or authorities (other than the Parliament through legislation) not to give directions to any court, or to a member of any court, within the national judicial system in respect of the exercise of judicial powers or functions. The independence of the national judicial system, of which the judiciary forms a part, is further recognised in s. 176(3)(a) and (5), s. 183(4) and s. 223. The Judicial Declaration that each member of the judiciary is required, by s. 249 of the Constitution, to make before entering upon the duties of, or exercising any of the powers of, his office is inconsistent with there being any erosion of the concept of the independence of the judiciary. The Judicial Declaration is in the following terms:
“JUDICIAL DECLARATION
I,, do promise and declare that I will well and truly serve the Independent State of Papua New Guinea and its People in the office of that I will in all things uphold the Constitution and the laws of the Independent State of Papua New Guinea, and I will do right to all manner of people in accordance therewith, without fear or favour, affection or ill-will.”
By virtue of the making of such a declaration independence becomes a vital part of a judge’s judicial integrity.
Perhaps the most important aspect of judicial independence is independence from the interference, control and direction of the Executive, i.e. the Government. It is the Government that has the greatest de facto power in the State. Its ability to interfere is probably greater than that of any other individual or group.
Most crucial in a sovereign, independent and democratic nation is the watchful presence of independent and fearless judges able and willing to do justice between citizen and State according to the law and vigilant to ensure that the State and its officers do not exceed their legal powers.
In Sirros v. Moore[dcxxiv]44 the words of Fox J. in Taaffe v. Downes[dcxxv]45 were approved in the Court of Appeal in England:
“It is necessary to the free and impartial administration of justice, that the persons administering it should be uninfluenced by fear and unbiased by hope ... A judge must — a judge ought to be uninfluenced by any personal consideration whatsoever operating upon his mind, when he is hearing a discussion concerning the rights of contending parties; otherwise, instead of hearing them abstractedly, a considerable portion of his attention must be devoted to himself. There is something so monstrous in the contrary doctrine, that it would poison the very source of justice, and introduce a system of servility, utterly inconsistent with the constitutional independence of the judges ... and ... utterly inconsistent with the preservation of the rights and liberties of the subject.”
The essence of independence is that the judge, in the discharge of his functions, reaches his decisions because his analysis, legal knowledge and understanding, his training, his system of values as has been discovered by him in the jurisdiction where he is serving, and no-one else’s, lead him to particular conclusions. That independence is demonstrated in the judge’s refusal to submit to any external pressures to reach conclusions different from those which, in his evaluation of the law and interpretation of the material before him, appear to be the right ones. It is also demonstrated when in an appropriate case the protective sanctions are applied. It is not being suggested that the judge should insulate himself from his community. He must be sensitive to social trends, be prepared to listen to informed criticism of his decisions, particularly on the interpretation of the law, and above all to adopt a critical approach towards his own functions and responsibilities in times of social change.
Judicial independence at its heart derives from the judge’s own determination to be free to make up his own mind in the end. The purpose of such independence in Papua New Guinea is to entrust to suitably equipped individuals in whom general confidence lies the resolution of conflicts according to standards embodied in the Constitution and the rules of law. Such confidence derives from the assurance that those individuals are not responsible to any of the parties interested in the outcome of the decision.
CONTEMPT OF COURT BY INTERFERENCE WITH THE DUE COURSE OF JUSTICE
It is, therefore, very important to the due administration of justice that a judge should be able to decide every case entirely free from outside interference. Any act which jeopardizes that freedom will generally amount to contempt.
In Re Dyce Sombre[dcxxvi]46 Lord Cottenham L.C. said:
“Every private communication to a Judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a course calculated, if tolerated, to divert the course of justice, and is considered, and ought more frequently than it is, to be treated as, what it really is, a high contempt of Court.”
In Chester Corporation v. Rothwell[dcxxvii]47 a litigant wrote a letter to the judge during the course of proceedings being heard in a County Court. The letter was headed “Justice” and began:
“I am enclosing herewith a copy of a letter I have forwarded to (a Cabinet Minister) mainly concerning the gross Travesty of Justice as exemplified in your Court on Tuesday last.”
It may be seen that there are some parallels between that case and the present. The writer of the letter under consideration in this case, although not a litigant in the Premdas case, was the Minister for Justice in the Government which was a party to the proceedings. She was concerned about the course of justice. She wrote to the Chief Justice while the Premdas case was pending and forwarded copies of her letter not only to all Ministers but to many other leaders as well, but not to the Government’s opponent in the proceedings or his legal advisers. Judge Whitmore Richards in Chester Corporation v. Rothwell said[dcxxviii]48:
“For a litigant to approach the Judge, or a juror, during the hearing of a part-heard case behind the back of his opponent is an interference, or attempted interference, with the course of justice. What the defendant has done prima facie constitutes, in my judgment, a serious contempt of Court.”
Lord Cottenham L.C. in Re Ludlow Charities; Charlton’s Case said[dcxxix]49:
“The power of committal is given Courts of justice for the purpose of securing the better and more secure administration of justice. Every writing, letter, or publication which has for its object to divert the course of justice is a contempt of the Court.”
THE PRESENT CASE
The Supreme Court has been called upon in these proceedings to determine whether Papua New Guinea’s Minister for Justice, the Honourable Mrs. Nahau Rooney M.P. has been guilty of contempt of court. This is the first time that the Supreme Court has been called upon to consider an allegation of contempt against itself. That this case is of importance and that it will have widespread implications may be seen from the fact that the person alleged to be in contempt of the nation’s Supreme Court of Justice is the Minister responsible for the national justice administration.
Although three charges have been brought against the Minister, the most important one is the first one, viz. an allegation that she attempted to interfere with the due course of justice by causing to be published and circulated a letter, upon her letterhead, under her signature, bearing the date 11th July, 1979, and addressed to the Honourable the Chief Justice and thereby intended to influence the judges in a case that was pending before the Supreme Court. The second and third charges are allegations that she published to the media for further publication over the radio and in the press statements which scandalized the judiciary.
I am satisfied beyond reasonable doubt that the Minister made the scandalizing statements alleged against her and that she is accordingly guilty of the contempt of court particulars of which are contained and identified in the second and third charges. However, I would perhaps not regard either of such contempts as being in themselves sufficiently grave to justify committal to prison. Her words were outspoken, highly critical, offensive and destructive of confidence (indeed, they were unquestionably scandalizing in the sense as known to the law), but her conduct in that regard viewed in the context of Papua New Guinea at this time, was, I am inclined to feel, not so grave that the court’s power to commit to prison for contempt should be used. It is noted that the originator of the statements has been prosecuted for contempt, but neither the National Broadcasting Commission nor the Post Courier, who were directly responsible for the wide publication of the statements and therefore responsible for the resultant lowering of the authority of this Court and the judges thereof, have been prosecuted for contempt. For this Court to use that power against the Minister in relation to the making of such scandalizing statements might be seen as the use of such power for the vindication of the judges as persons, and thus not be in the interests of the administration of justice. I would prefer to leave to public opinion these scandalizing or derogatory statements. If, however, such statements were to be made in the future, another view might have to be taken. I can well imagine the situation arising when the enforcement of committal for contempt of court for attacks on the court may be absolutely necessary to preserve the dignity of and respect for the court.
Having decided to take a less serious view of the contempts arising from the scandalizing statements alleged in the second and third charges, I consider it unnecessary for me to analyse the evidence in detail and proceed to make separate findings. I have had an opportunity to read the judgment of my brother the Deputy Chief Justice in draft form, and I entirely agree with his findings of fact in relation to the second and third charges.
I now turn to the first charge which I consider to be the most important one. In my considered opinion there is no other reasonable way of understanding the Minister’s letter of 11th July, 1979, than that it was a deliberate attempt on the Minister’s part to influence the judges of the Supreme Court in the Premdas case that was pending before the Supreme Court. Such an attempt was an interference, or attempted interference, with the due course of justice.
During the course of the lengthy hearing in this Court a ruling was given, following a “no case to answer” submission presented by Mr. Priestley Q.C. on the Minister’s behalf, to the effect that the proceedings in the Premdas case (otherwise called a “reference”) were “pending” in the Supreme Court as at 11th July, 1979, when the Minister wrote and distributed the letter which is the subject of the first charge. There is no need to deal further with the arguments adduced in relation to that issue.
What must be emphasized is the timing of the Minister’s letter. It is dated 11th July, 1979; it followed closely upon (in fact seven days after) the hearing in the National Court on 4th July, 1979, in which Pritchard J. took steps preceding and ancillary to the ultimate hearing of the reference in the Supreme Court. If the Government or any Ministers of the Government were to be concerned about the possible outcome in the Premdas case, it was reasonable to expect them to become concerned in the days immediately following the hearing which initiated the reference to the Supreme Court. The suggestion that the letter was written at that time with a view to “full and free debate and discussion” taking place does not ring true.
Whilst the Minister in the letter of 11th July acknowledged s. 157 of the Constitution, which imposes a duty on all persons and authorities (other than the Parliament through legislation) not to give directions to any court, or to a member of any court, within the national judicial system in respect of the exercise of judicial powers or functions, it is significant that she did not refer specifically to the independence of the judiciary as a principle nor did she refer to those other provisions in the Constitution and the statute law of Papua New Guinea which guarantee that independence and proscribe interference with it. Although the Minister mentioned the “independence of the National Judicial System”, she did so only in the limited context of s. 157. I find that she was deliberately and carefully steering a course designed to “influence” and “interfere” but without “directing”.
The tone of the letter of 11th July was aggressive, assertive, and arrogant. It carries with it the hall-marks of pressure and authority. In the context of a nation which appoints its judges for a term of years and through a Judicial and Legal Services Commission in which the government exerts the greatest de facto power, it contains implied threats. The fact that the Minister underlined some words in the otherwise accurate legal proposition:
“It is up to the Elected Government and no one else to decide what criteria are used to deport Foreigners”
is very significant. It illustrates the extent of the authority with which she purported to write. The extent of that authority is further revealed in the Minister’s letter to the Leader of the Opposition of 13th July, 1979, in which she stated:
“It must be remembered that the power of the Judiciary has been given to them by the elected legislature.”
That statement (inaccurate as it is — because the power of the judiciary comes from the people under the Constitution) provides an important clue to the Minister’s bid for power. Her bid for power and her attempt to exercise that power were as deliberate as they were determined. That she was determined is illustrated by the uncontraverted evidence of the then Secretary for Justice, Mr. Buri Kidu, who advised her not to send the letter; she did not heed a strong warning from the head of her own Department and the principal legal adviser to the National Executive. That she acted with deliberation is illustrated by the uncontroverted evidence of Mr. Kidu as to her demeanour on 11th July when she showed him the letter. The Minister said in her letter of 17th July that she had written her letter of 11th July “fully understanding the seriousness and importance” of her actions.
The Minister’s letter savours of the totalitarian approach, when she asserted:
“It is obvious that no one has deprived Dr. Premdas of his basic human rights or freedom.”
Obvious to who? Obvious to one who sees the Government, i.e. the, Executive arm of the National Government, as above the law? There are many historical parallels which come to mind in this context.
I am not persuaded by Mr. Priestley’s argument to the effect that the Minister’s letter of 11th July was a criticism of, and was directed at, a past or concluded decision of the National Court. If it was so, why did the Minister preface her letter with a reference to s. 157 of the Constitution? Why did the Minister refer to the arguments “that are now preceeding (sic)”? Why did the Minister conclude her letter with a clear reference to the future? The exhortation to all members of the judiciary “to make a greater effort to use their discretion effectively to develop the National legal system in the context of a proud and growing national conciousness (sic)” is an attempt, veiled but not hidden, to influence the judges of the Supreme Court in the exercise of their judicial discretion. It was far more than a statement of the Minister’s own wishes, as Mr. Priestley urged us to accept.
That the Minister’s letter was distributed so widely, i.e. to more than forty-five leaders of the nation, is indicative of the amount of pressure the Minister was seeking to apply. I totally reject the Minister’s later explanation that she circulated the letter only for the reason that she did not wish it to be said that she “was acting secretly or in an underhand way”. If it was her desire to act openly and not in “an underhand way”, why did she not include on the distribution list Dr. Premdas or his legal advisers?
I regard the Minister’s later letter to the Chief Justice dated 17th July, 1979, as containing something in the nature of an admission. She said (at p. 2 of the letter):
“It is regretable (sic) that I refered (sic) to a specific matter currently before the Court.”
She made a similar admission in her statement of 24th August, 1979. She said:
“I see now that, because it was pending, I should not have referred to the Premdas matter ...”
An examination of the whole correspondence indicates that the Minister is not one to make concessions easily. The concessions that she made in the passages just quoted are to be characterised, in my judgment, as acknowledgements that she appreciated that the Premdas case was pending when she wrote her letter of 11th July and as an admission (which she, by the course her defence took, must be taken to have withdrawn) and an expression of regret (which she has declined to re-affirm unreservedly). If the Minister was writing in deference to the Chief Justice’s views or merely in response to his letter, she could just as easily have said:
“It is regrettable that you have read and taken my letter to having been a reference to a specific matter currently before the Court.”
in the way she did not the first page of her letter of 17th July regarding the implication of lack of respect for the independence of the judiciary and in the way she did in her statement of 24th August.
I acknowledge that there is some irony in what the Minister expressed in her letter of 11th July. She was criticizing the National Court and accusing it of having jeopardized its “independence and neutrality by intervening in a matter” which she said “is obviously the sole prerogative of the Government”. In doing so in the manner she did and in the circumstances then existing, she interfered (or “intervened”) in a matter which, under the Constitution, was at that time the “sole prerogative” of the Supreme Court.
In her letter of 17th July to the Chief Justice the Minister said:
“It is obvious that this whole misunderstanding has come about because both of us have a deep appreciation of our responsibilities to this Nation.”
I totally reject the suggestion that there was a misunderstanding. To suggest that there was one was an attempt to divert attention from the real and fundamental issue and from what the Chief Justice had described as “the grave improprieties” of her letter.
I simply do not believe the Minister’s statement in her letter of 17th July to the effect that when she wrote her letter of 11th July, she “sincerely believe(d)” that she “was raising some grey areas in which there is a potential area of conflict between the executive and the judiciary” for both the executive and the judiciary “to talk about as a matter of principle or subject of discussion, and nothing else”. Had she been doing so, why did she not say so in her letter of 11th July? Why did she not suggest that a meeting be held or that discussion take place? Why did she express her letter of 11th July as a request or Ministerial message instead of as a invitation to enter into dialogue?
Whilst I accept that the Minister had no intention (when she wrote the letter of 11th July) of directing the National or the Supreme Court, I am satisfied beyond the slightest doubt that she intended to interfere in the judicial process and came very close to giving a direction to the Supreme Court. It is a non sequitur to imply as the Minister did, that, because a person makes reference to his or her awareness of a particular prohibition, he or she would not be (or could not be) in breach of that prohibition. The Minister thereby revealed herself to be both naive and unrealistic.
I simply do not believe that the Minister was sincere when she stated in her letter of 17th July that she believed that the courts “are of high integrity” and that, on that account, there was never any question in her mind that her letter “was directing or pressurising”. How could the Minister expect this Court to conclude otherwise when she has not denied that it was her view (and one that she was prepared to express to representatives of the media) that she had no confidence in the Chief Justice or other judges, that “it appears that the foreign judges on the bench are only interested in administration of foreign laws” and that “the Judiciary is no longer doing Justice”.
The Minister showed her hand when she stated (in her letter of 17th July):
“My chief concern is that the integrity of the Government and the citizen’s (sic) trust in their elected Government should always be maintained. There should never be any doubt that the Government has the power and authority to act immediately and decisively against any foreigner who may threaten the security or be seen to under-mine the sovereignity (sic) of the Nation.”
I think her concern was such (others may say her collectivist or totalitarian zeal was such) that concern for the integrity of other institutions was completely submerged.
In the final sentence of her letter of 17th July the Minister made a curious statement:
“I look forward to the continuance of a good working relationship between myself and all members of the Judiciary based on our mutual respect for each other.”
If she was referring to the relationship that existed on an official basis, I simply cannot believe a person is truthful when she states on one day that “mutual respect” exists and when three days later she holds the opinion that she has “no confidence in the Chief Justice or other Judges”, that all the judges “are only interested in administration of foreign laws”, and that they are “no longer doing justice”.
I now turn to a consideration of the Minister’s statement of 24th August that was placed before this Court. For reasons that will by now have become apparent, I am of the firm opinion that it has been proved that the Minister has at all relevant times had no respect for the independence of the judiciary. She may not fully understand what it is; she certainly does not understand its importance. As is implicit in my earlier findings, I do not accept the veracity of the Minister’s statements on 24th August that she “did not intend improperly to influence the Court” and that she “did not intend to influence the Court in relation to its ultimate decision”.
The Minister repeated her suggestion that there had been a misunderstanding, although by this time she is calling it misconstruction of her original letter. It is significant that her “apology” is limited to apologising “for the embarrassment” that may have been caused to the court “thereby”, i.e. by the misconstruing of her letter. Because I regard the suggestion that there had been misunderstanding or misconstruction as diversionary and without foundation, it follows that I regard the Minister’s “apologies” as no apologies at all. In so far as she purported to apologise there has certainly been no purging of the contempt nor any mitigation of the offence. The wording of the final sentence in the statement of 24th August: “I deeply regret it if the Court is of the opinion that I have transgressed the proper line” reveals an unrepentant and defiant woman who is prepared to go no further than to make a conditional statement of regret.
I do accept that the Minister was unaware that she “may have been committing a contempt of Court” and that she “had no intention or desire of doing so”. Her mind and efforts were wholly and determinedly devoted to her attempt to influence the judges and thereby to interfere with the due course of justice. Such was her fervour and her arrogance, that she paid no attention to the implications of what she was doing.
I have already concluded that the Minister’s original comments were intended to go beyond a mere criticism of the judge who granted the injunction.
In the light of the undisputed opinions held by the Minister regarding the judges, their motives, their performance, and her plans for their replacement, it strains credulity beyond all reason to suggest, as the Minister’s counsel did, that the Minister was sincere and worthy of being accepted as a person of truth when she said:
“As Minister for Justice I have every confidence in the courts and the judges and I consider the maintenance of their independence and standing of great importance to the future of constitutional government in this country ... I consider ... that destructive criticism that does not respect the dignity of our constitutional institutions is strongly to be deplored.”
I regret to have to announce my findings, all of which are arrived at beyond reasonable doubt from an examination of the evidence that was placed before this Court, that the Minister has had no confidence in the National and Supreme Courts and the judges, that she has seen the power of the elected Government as paramount, and that she has considered that the judiciary should be wholly dependent on State policy and the representatives of the State. I find the conclusion inescapable that the Minister has, notwithstanding some of her expressed words, hitherto foreseen an end to constitutional government in Papua New Guinea, at least of a kind that is enshrined in the Constitution and known in Papua New Guinea at this time.
It was urged upon us by Mr. Priestley that, in the absence of any reason in the evidence to suggest otherwise, the Minister should be given the presumption of bona fides at the time of the writing of the letter of 11th July. Whilst I agree with that approach, I am satisfied that there are abundant reasons in the evidence so to suggest otherwise. I need not repeat those reasons again.
I therefore conclude that the sending and dissemination of the letter of 11th July on its true construction constituted not only a contempt but also a punishable contempt. There having been no real apology nor any purging of the contempt, some punishment is called for in the public interest.
THE CONSTITUTIONAL ARGUMENTS
I now turn to consider what have been described as “the Constitutional arguments”.
Section 157 of the Constitution provides:
N2>“157. Independence of the National Judicial System
Except to the extent that this Constitution specifically provides otherwise, neither the Minister responsible for the National Justice Administration nor any other person or authority (other than the Parliament through legislation) outside the National Judicial System has any power to give directions to any court, or to a member of any court, within that System in respect of the exercise of judicial powers or functions.”
In all the circumstances of this case I do not regard the Minister’s letter of 11th July, 1979, as a direction within the meaning of s. 157, although it came very close to it. In so concluding, I do not imply that a letter prefaced with an acknowledgement of s. 157 but incorporating no directive words could never amount to a direction. The combination of the words used and the circumstances in existence at the time of writing may lead to the conclusion that a direction was nonetheless given.
As I have concluded that the Minister did not give a direction to the Supreme Court in respect of the exercise of judicial powers or functions, it is unnecessary for me to go on to consider whether s. 157 amounted to a prohibition or restriction or imposition of a duty and, if so, whether the giving of such a direction was only punishable under s. 23 of the Constitution.
I am clearly satisfied that the power to punish for contempt of court is expressly reserved to the Supreme Court by s. 160(2) which provides:
N2>“(2) The Supreme Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.”
(See also s. 37(2) of the Constitution.) Not only does s. 23 not amount to a code covering the field and excluding the application of the law of contempt but also it expressly reserves other sanctions contained in “a Constitutional Law or any Act of the Parliament” including the sanctions under the Leadership Code. As the Constitution itself is a constitutional law (see Sch. 1.2 to the Constitution) and as s. 160(2) appears in the Constitution, it is clear that it was the intention of the framers of the Constitution that contempt of the Supreme Court would be separately punishable by the Supreme Court.
All persons guilty of contempt of the Supreme Court are liable to be punished for that offence against the court. Members of the National Executive Council and acting in their capacities as such are not immune. If such an important immunity was to be given, one would have expected to see an express provision to that effect in the Constitution itself. The Minister for Justice is not immune from prosecution for contempt of court, in the same way as the Minister does not have immunities that are conferred upon the Crown by the adopted common law. The Minister is not answerable only to the people through the Parliament.
Section 46 of the Constitution recognises the right to freedom of expression. Section 46 provides:
N2>“46. Freedom of expression
(1) Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law:
(a) that imposes reasonable restrictions on public office-holders; or
(b) that imposes restrictions on non-citizens; or
(c) that complies with Section 38 (general qualifications on qualified rights).
(2) In Subsection (1), ‘freedom of expression and publication’ includes:
(a) freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and
(b) freedom of the press and other mass communications media.
(3) Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations:
(a) for the communication of ideas and information; and
(b) to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,
and generally for enabling and encouraging freedom of expression.”
This is an important provision in the Constitution which quite obviously limits the field of operation of the law of contempt. If what might otherwise have been regarded at common law as contempt of court may be characterised as the legitimate exercise of the right to freedom of expression, then in those circumstances the boundaries of the law of contempt are narrowed. However, because what the Minister did went much further than the legitimate exercise of her right to freedom of expression and because, in any event, the right to freedom of expression is qualified by the restrictions which the law of contempt as expressed in the Constitution itself imposes, I need consider no further the extent to which s. 46 narrows the operation of the law of contempt. It does not afford any protection against contempt of court as found here.
I was surprised to hear Mr. Gregory, who appeared for the principal legal adviser to the National Executive, suggest by his submissions on the Constitutional questions that the Minister may have been guided by the fifth national goal and directive principle in the preamble to the Constitution which provides:
“WE ACCORDINGLY CALL FOR:
N2>(1) a fundamental re-orientation of our attitudes and the institutions of government, commerce, education and religion towards Papua New Guinean forms of participation, consultation, and consensus, and a continuous renewal of the responsiveness of these institutions to the needs and attitudes of the People; and
N2>(2) particular emphasis in our economic development to be placed on small-scale artisan, service and business activity; and
N2>(3) recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and
N2>(4) traditional villages and communities to remain as viable units of Papua New Guinean society, and for active steps to be taken to improve their cultural, social, economic and ethical quality.”
It is ironic that the Minister’s letter of 11th July was couched in language more typical of “foreign laws” and foreign influence than of “Papua New Guinean forms of participation, consultation, and consensus”.
SOME “SEMANTIC AND LEGALISTIC” ARGUMENTS
Much time was taken up during the hearing of this case with discussion as to the meaning of such notions as “real and definite tendency to prejudice or embarrass”, “a tendency, as a matter of practical reality, to interfere”, and “a real and definite tendency to prejudice or embarrass”, which are incorporated in the amended notice of motion and further discussion as to the meaning of related notions including “real risk” and “serious risk”.
Such questions, as it seems to me, need only be determined when no intention is proved. When no intention is proved, the inherent tendency necessarily must be determined in order to see whether the published statement constitutes contempt. It is self-evident that a deliberate attempt to influence the judges of the Supreme Court in a case that is pending and thereby to interfere with the due course of justice has “a real and definite tendency to prejudice or embarrass those pending proceedings”, has “the tendency, as a matter of practical reality, to interfere with the due course of justice in those proceedings”, and “creates a real and definite tendency to prejudice or embarrass the fair trial of those proceedings”; the “risk” must be said to be “real” and “serious”; it is something more than a “remote possibility”; the contempt is “real and substantial”.
THE CHIEF JUSTICE’S ACTIONS
I desire to make one or two observations about the Chief Justice’s response to the Minister’s letter of 11th July, 1979. I see no substance in the criticisms that were expressed of his actions. It must be remembered by all who have been concerned about the recent events which have been described as “the Constitutional crisis”, and particularly by all young Papua New Guinean lawyers, that a Chief Justice who is not prepared to take his stand against Executive action when the values inherent in the law itself so dictate, seriously damages public confidence in the law and the legal system. The judge or magistrate who is not able and willing to be fearless and independent, who is not able and willing to do justice between citizen and State according to the law, who is not vigilant to ensure that the State and its officers do not exceed their legal powers, who is not prepared, when necessary, to declare invalid legislation unconstitutional, and who also is not prepared to take a stand against Executive action when the values inherent in the law itself so dictate, damages public confidence in the law and the legal system. In so far as public confidence in the law and the legal system in Papua New Guinea has been damaged in these past two months, the precipitating cause of that was the Minister’s contempt.
It is true that the Chief Justice issued a strong and unprecedented statement setting out the events and the views he had formed in the matter. But, the Minister’s views had hardened into political terms and she had sought to influence the court. That was a serious matter.
A REASON FOR REGRET AND A REASON FOR FUTURE CONCERN
In August 1975 I was privileged to attend the fourth Commonwealth Magistrates’ Conference held in Kuala Lumpur, Malaysia. The conference was attended by judges and magistrates and others interested in the administration of justice. Those attending included Lord Elwyn Jones L.C., Lord Denning M.R., Lord Cameron, several Chief Justices of Commonwealth countries, and judges and magistrates from countries right around the Commonwealth including Papua New Guinea. The theme of the conference was: “The Judiciary, the State and the Public in the Administration of Justice”. Emphasis was given to “The Independence of the Judiciary”.
One of the papers presented at that conference was entitled “Safeguards for Judicial Independence in Law and in Practice”. It was presented by Professor K. W. Patchett of the University of Wales and formerly Dean of Law at the University of the West Indies. Professor Patchett’s paper is printed in the report of that conference. In that informative paper Professor Patchett examined the circumstances in some of the developing nations of the Commonwealth and he tried to demonstrate the limits upon the use of legal safeguards for the protection of judicial independence. I have drawn extensively upon Professor Patchett’s paper in preparing that part of this judgment which is headed “The independence of the judiciary”.
A reading of Professor Patchett’s paper leaves one with the distinct impression that the Professor was being ominously prophetic of what was to transpire in Papua New Guinea four years later. My regret is that preventive action could not have been taken; my reason for concern in the future is that, based on international experience, worse may yet follow.
To illustrate both my regret and my future concern, I need do no more than refer to a number of extracts from Professor Patchett’s extensive but penetrating paper. Those extracts are set out in an appendix to this judgment.
It is to be regretted that in the present situation the independent stand taken by the Chief Justice was not respected either by the Minister or by the Government and was followed by “some vindictiveness and adverse repercussions” not only against the Chief Justice personally but against the judiciary as a whole.
It remains to be seen as to whether the judiciary in taking its independent stand in these proceedings has the “support and confidence of the community at large and as to whether its independence from government is not only known to exist but, more importantly, is valued”.
There is danger that this Court’s decision in this case will not be fully understood by those who feel aggrieved by this Court’s decision and that the issue of judicial independence will be “polarized in political terms and assessed on partisan grounds” rather than as “an important issue which transcends” politics.
I apprehend that the members of this Court, whether consciously or subconsciously, have faced “an appalling dilemma”; if this Court shows that it is strong and determined in fulfilling its responsibility to the Constitution and the law, will the necessary public support and protection be forthcoming in what may be seen as a confrontation with the Government? If this Court is compliant and avoids conflict with the Government, will the court not weaken the authority of the judiciary in the public mind and “make firm-minded decisions involving the Government even less easy to reach in future”?
As I see it, this Court has no alternative in the present case but to show its strength and determination but with restraint. In the long-term that will be seen as being in the interests of the people. The court’s decision in this case will, I trust, provide some hope and encouragement to young National lawyers who must have been watching recent events with much interest and some alarm. In the short-term the consequences that will flow from this Court’s show of strength will depend upon the Government’s response; there is no doubt that much damage has been caused to date.
Adapting Professor Patchett’s words, the ability of this Court, by whomsoever it is constituted, to hold the essential balance between competing power weights depends in part upon its own strength and in part upon the degree of stress which is placed upon the legal system. Had this Court shown insufficient strength, then the whole legal system as we know it would sooner or later have broken; too much stress (I fear, any more stress) and it will break. This Court having decided to be strong, it remains to be seen as to the amount of stress, if any, that will be applied.
LOCUS STANDI
I have had an opportunity to read in draft form the judgment of my brother Greville Smith on the subject of locus standi. Whilst we heard no argument on the subject and whilst it is obiter, the question there discussed is of such importance that I am inclined to say, as I now do, that I am in general agreement with what he has said.
THE SENTENCE
Having decided that the Minister is guilty of contempt of court, the question then arises as to what punishment should be imposed. In due course it will be necessary to make both some general and some specific observations about the matter of punishment. But first it is necessary to see what the law of contempt has to say about the punishment of those found guilty of contempt.
In Re Davies[dcxxx]50 Matthew J. referred to the imprisonment powers of the court in contempt cases and the principles to be applied. The learned judge said:
“The punishment should be commensurate with the offence. It may be severe where the contempt is grave: as for instance in the rare case where an insult is offered in court to the judge who presides, or where a deliberate attempt is made to interfere with the due and ordinary methods of carrying out the law, as in the case of Onslow v. Skipworth[dcxxxi]51. So where a witness refuses to give evidence in obedience to a subpoena, he may be committed for contempt... On the other hand, where it appears that the act done is due to a mistaken view of the rights of the offender, the punishment, where imprisonment is deemed necessary, should be for a definite period and should not be severe.”
Where there is “a deliberate attempt” to interfere with “the due and ordinary methods of carrying out the law” and therefore a grave offence has been committed, so must the punishment be severe.
The court’s power to imprison is the major sanction which can be imposed for contempt of court. It is exercised only where a serious contempt has been committed. In deciding whether a sub judice contempt involving wide publication of the contemptuous statement is serious enough to warrant imprisonment a number of factors will be taken into account including, firstly, the real likelihood of interference with the due course of justice; secondly, the extent to which the authority and administration of the law has been brought into disrespect or disregard, and thirdly, the culpability of the offender.
The first two factors are bound up together in a case such as the present. In considering whether there was a real likelihood of interference in the instant type of case, the court does not look to the minds of the judges who will constitute the bench to hear the case which is pending. It does not look to see if there was a real likelihood that they or any of them would, or did, in fact allow their minds to be influenced. The court looks at the impression which would be given to the people to whom the statement was published. Even if the Supreme Court was as impartial and independent as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of them being influenced, a real likelihood may be said to exist. There must be circumstances from which a reasonable man being recipient of the letter would think it likely or probable that the judges of the Supreme Court would or did succumb to such interference. The court will not inquire whether they did or not. Suffice it that reasonable people might think they did. The reason is plain enough in this context, as it was plain to Lord Denning M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon[dcxxxii]52 in a case involving bias when his Lordship said, “Justice must be rooted in confidence.”
To adopt the words of the Master of the Rolls and use them in a case of contempt of court, confidence is destroyed when right-minded people start thinking “The administration of justice is being interfered with”.
If the publication of a statement is likely to be regarded with apprehension by a litigant in a case involving a doubtful and difficult question the decision of which in his favour would result in inconvenience to and annoyance by the Executive arm of government, the authority and administration of the law is brought into disrespect or disregard and public confidence in the court is undermined. Likewise if misgivings as to the integrity, propriety and impartiality of those in judicial office is excited.
The intention with which the act complained of is done is a material factor in determining what punishment, if any, is appropriate. Where it has been established that a person deliberately intended to interfere with the due course of justice (or the due administration of the law) then the courts have had no hesitation in imprisoning the offender.
In this context there is need to bear in mind the cautionary words of the judicial committee of the Privy Council in McLeod v. St. Aubyn[dcxxxiii]53:
“(The power) is not to be used for the vindication of a judge as a person ... Committal for contempt of Court is a weapon to be used sparingly, and always with reference to the interests of the administration of justice.”
The words of Lord Denning M.R. in R. v. Commissioner of Police of the Metropolis; Ex parte Blackburn (No. 2)[dcxxxiv]54 should also be remembered:
“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.
It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”
Hope J.A. in Attorney-General for New South Wales v. Mundey[dcxxxv]55, a case upon which Mr. Priestley placed much reliance, said:
“The slightest reflection shows how essential it is in the public interest, and particularly in the interest of the administration of justice, that members of the public should have the right publicly to criticise the public acts of judges and courts. This is particularly so where a judge has made some improper or unjustified statement, as was pointed out by Griffith C.J. in delivering the judgment of the High Court in R. v. Nicholls[dcxxxvi]56. But criticism does not become contempt because it is ‘wrong headed’, or based on the mistaken view of the facts or of the law. Nor, in my opinion, need it be respectfully courteous or coolly unemotional. There is no more reason why the acts of courts should not be trenchantly criticized than the acts of other public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits; they cannot be propped up if their conduct does not command respect and confidence; if their conduct justifies the respect and confidence of a community, they do not need the protection of special rules to shield them from criticism. Indeed informed criticism, whether from a legal or social or any other relevant point of view, would be of the greatest assistance to them in the performance of their functions.”
Punishment is inflicted for contempt of court involving the depreciation of the court not for the purpose of protecting either the court as a whole or the individual judges of the court from a repetition of the attack, but for the purpose of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief that will occur if the authority of the court is undermined or impaired.
Punishment is inflicted for contempt of court involving an attempt to interfere with the due course of justice, not only for the purpose of protecting the court as a whole and the individual judges, both present and future, from pressures of this kind but also for the purpose of preserving the right of every litigant to have his case determined free from outside interference by an independent and impartial court.
No two cases of contempt are wholly alike, and, in any event, apparent similarities are often superficial. Because the circumstances vary so infinitely, it would not be proper to determine the length of sentence according to any fixed or unalterable standard. Whilst having heeded that warning, because this case has excited so much interest both within Papua New Guinea and overseas and because it is unique to Papua New Guinea I have sought to ascertain what other cases (i.e. legal precedents) in other countries have decided about the question of length of sentence. It would be useful to know whether there is any general consensus of judicial opinion on the length of sentence that should be imposed for contempt of court. My conclusion is that there is no general consensus of judicial opinion; all that can be said is that in England from where the common law in Papua New Guinea derives (see Sch. 2.2 of the Constitution) in cases involving witnesses who have refused to answer questions terms of imprisonment of from three to six months have been imposed, and in cases involving persons who have intimidated witnesses or have interrupted court proceedings terms of imprisonment of three months have been imposed (see the cases referred to in Borrie and Lowe’s book on The Law of Contempt (1973), at p. 280); in New Zealand in a fairly recent case involving a person who had scandalized a court a term of imprisonment of three months was imposed (see Re Wiseman[dcxxxvii]57).
Hope J.A. in Attorney-General for New South Wales v. Mundey said[dcxxxviii]58:
“The law of contempt does not punish people for ideas or views; it is the communication of those ideas in circumstances which lead, or may lead, to an interference with the administration of justice that creates the offence. A statement made to a dozen people would normally have little effect upon the administration of justice, although the effect may depend upon who those people are.”
In agreeing with that proposition, it must be said that the dissemination of the statement said to be contemptuous is of decisive importance.
I now make two general observations about the matter of punishment. First, sentencing is a difficult task; it is often acknowledged to be a much more difficult task than ascertaining guilt. Far more time and attention is paid to questions of determining guilt than to the important question of what to do with the guilty offender. Such was the case here. Secondly, this case must surely be a landmark in the development of Papua New Guinea’s constitutional and criminal law. It involves serious questions of civil liberty and of the protection of the community. In this case there are significant social, legal and political consequences for society as well as the offender. In view of these two observations it would be unsatisfactory for the sentencing decision to be made without a full statement about this Court’s approach to its sentencing task.
All punishment for offences is fundamentally for the protection of the community, but a court in discharging its sentencing function should not impose a longer sentence than is otherwise fairly proportionate to the gravity of the offence assessed against its proper background.
Sentences should be such as, having regard to all the proved circumstances, seem at the same time to accord with general community attitudes and to be likely to be a sufficient deterrent both to the offender and others. The circumstances of the offence, i.e. the objective factors, are of paramount importance in determining the gravity of the crime. The circumstances of the offender, i.e. the subjective factors, are also vital. In the instant case it is assumed (it has not been suggested otherwise) that the subjective factors are favourable to the Minister, e.g. that she is of previous good character, that her antecedents are beyond reproach and that she is a comparatively inexperienced person as Minister for Justice in a newly independent democratic nation. The fact that a senior Minister of the State is convicted of contempt after a lengthy public and much publicised hearing is a substantial punishment in itself; if the Minister is imprisoned she may be expected to carry a special burden of punishment; these are matters that must be (and are) taken into account.
The task of determining the sentence which “accords with general community attitudes” involves making an intuitive assessment of what the community will support. At this time in Papua New Guinea in the present climate of opinion and when views are frequently polarised it is particularly difficult to determine what general community attitudes may be.
Some assistance is to be found within the Constitution itself; further assistance is to be found in the statute law and the principles of the common law and equity which form part of the underlying law of Papua New Guinea. It is significant that the crime of attempting to pervert the course of justice (s. 139 of the Criminal Code) is punishable by up to two years’ imprisonment with hard labour. In this case I have tried to remain aware of prevailing community attitudes and I have tried to avoid going beyond those limits where punishment is seen as derisory at one extreme or unjust at the other; to exceed those limits at either extreme makes the punishment unacceptable.
In trying to achieve a measure of public protection this case needs to been viewed not in isolation but in the context of an overall legal system which is developing along with the very nation itself.
There are offences where sentences of imprisonment must be imposed to mark the degree of disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour. This is such a case. In the instant case the imprisonment of the Minister will provide the best hope that further contempts of this type will not be committed in the future. Looking further ahead, as I believe the people of Papua New Guinea would want this Court to do and as the Papua New Guinean lawyers who will sooner or later be members of this Court would expect this Court to do, the imprisonment of the Minister provides the best hope for the preservation of the independence of the judiciary and for the safeguarding of the rule of law under the Constitution.
In so far as imprisonment will operate so as to achieve a measure of such protection the courts are entitled to be protected against all forms of interference or pressure and this is a fortiori in the case of deliberate interference or pressure from a person as influential as the Minister responsible under the Constitution for the national justice administration. I consider that the imprisonment of the Minister is necessary in order to impress on other like-minded persons and to reassure the community at large that such behaviour will not be tolerated. This is a case where the desire (and need) to protect society should override the interests of the individual concerned.
I regard neither the rebuke of the Minister by the Chief Justice in his letter to her of 13th July nor the subsequent making public of the correspondence on 20th July nor the Minister’s letter of 17th July nor the Minister’s statement of 24th August as satisfying the public interest.
I therefore think that this crime was such that considerations of community protection, public reprobation and general deterrence should prevail over all other considerations. By keeping the period of imprisonment short injustice to the individual can be avoided.
A sentence of imprisonment is fully merited as punishment for a very grave offence and as expressing public disapproval of the whole circumstances of the case. This is a case where the community is entitled to expect this Court to reflect its disapproval of the grave offence committed by the Minister in the face of the people’s Constitution.
It is because the Minister’s contempt is likely to have had (and is likely, if it goes unpunished, to continue to have) such an adverse effect upon the administration of justice, that committal to prison is the only appropriate sanction. Assessing the Minister’s conduct in the light of Papua New Guinea’s development as a nation, taking account of the experience of other third world nations and paying particular attention to the need to safeguard the future of the rule of law in this country, the conclusion is reached that the Minister should be imprisoned with light labour for eight months.
APPENDIX TO THE JUDGMENT OF WILSON J
Extracts from a paper presented at the fourth Commonwealth Magistrates’ Conference held in Kuala Lumpur, Malaysia, in August 1975 by Professor K. W. Patchett and entitled “Safeguards for Judicial Independence in Law and in Practice.”
“The critical appraisal of organs of established order which seems to be a growing feature of democratic societies is not confined to the more developed of them. But in some developing countries, the public ambivalence towards the courts and the men who preside over them appears to be more pronounced and may be traceable to the experience of colonial times and the social organisation which the legal systems then endorsed ...
Public confidence may also be undermined by misconceived or misreported criticism. The reputation for impartiality of the judiciary or of particular judges can be substantially, even irreparably, damaged by ill-considered attacks. The more influential the critic the more likely that public opinion will be affected — especially in the small society. Invariably the judges will be unable to make a public defence of their positions and if there is no-one in an influential position to answer on their behalf, or at least to dissipate the effects of the attacks, the judiciary will be diminished. All the more so, if the attacks are made by members of the government in circumstances which command public attention ...
The fervent wish to make constructive improvements in the quality of the law may lead to outspoken public criticism of the judiciary. Unless this is put into the context of rational debate, it may serve merely to exacerbate the situation ...
In smaller countries especially and notably where class, wealth or racial divisions play a significant part in people’s attitudes, ‘there remains the distinct possibility that (the judges) must tend, even unconsciously, to share the basic opinions and life-styles of the groups from which they come’ and that the judges will not be seen as objective, ideology-free. Such views can themselves be hardened into political terms when the government, as ‘representative of the people’s interest’, claiming that the courts constitute some form of obstacle to social progress or to proper government, seeks to influence the work of the courts ...
Perhaps the aspect of judicial work which is most likely to give rise to political repercussions is the duty of the Supreme Courts to enforce the constitutional guarantees incorporated in Bills of Rights. In many of the countries of the new Commonwealth, the courts are vested with the responsibility for ensuring that Executive action and legislative enactments keep within the fundamental freedoms laid down by their Constitutions.
Since these Bills of Rights are almost invariably concerned with the traditional freedoms of the individual and make little reference to collective rights, it might be expected that the judges concerned with their interpretation and application would have readily developed the principles implicit in the Bills to safeguard against apparent excesses or abuses of legislative or Executive power. There is little evidence that this is happening. As with statutory provisions, the judicial approach has tended towards narrow literalist interpretations, although the form and terms of the Constitutions seem capable of development into powerful instruments of regulation. But there can be little doubt that such creativity by the judiciary will bring them into fundamental conflict with the Executive. For the government, reliant upon its election by universal suffrage, is likely to assert that the responsibility for its legislative and Executive activities lies to the people through the political process, notwithstanding the Constitutional provisions which repose final determination of the acceptability of those activities in the judiciary. Further, the development of the fundamental freedoms as presently formulated is likely to give emphasis to an individualist ideology which may be incompatible with the collectivist objectives of the government.
However justifiable in political terms these Bills of Rights may be, they inevitably bring the judiciary into political prominence. Creative initiative is likely to impinge upon what the government sees as its prerogative, whilst a narrow restrictive application will be unacceptable not only to political opposition groups but also to those who assert that the intentions of the Constitution-makers are being ignored. The judiciary cannot be unaware of these considerations. In particular, they must be aware that if the courts frustrate government policy on major issues or constantly on lesser matters over a period of time, their independent status will be seriously in jeopardy ...
These situations, whatever the actual legal outcome, show very well the acutely exposed position of the judges. Governments placed in such situations may well be inclined to see themselves undesirably constricted if measures which are claimed to have had a beneficial effect on the incidence of crime cannot be used at all. To the assertion that the Constitution is the supreme law is it not understandable for the government to reply that the well-being of the people should be supreme and that it is for the government both to determine and to ensure it? Are the judges the best able to determine such fundamental matters which turn upon political and human values, even with the guidance offered by the Constitution itself?
At the same time, however much one may sympathise with the government’s reactions, it must be said that so long as the Constitution requires the quality of Executive action to be judged against a set of values embodied in the law, the judge must recognise and accept the role which the society has formally given to him ...
If these values (regarding judicial independence) are not in reality acceptable or practised in any particular community, no legal formulae designed to protect those values will alter that fact. (It is, perhaps, appropriate to recall that such values are not universally held, that a different view of the role of the judiciary could be expounded and defended.) But there is some danger that the existence of the legal safeguards will be taken as face-value evidence that judicial independence is fully practised, when in fact the underlying values are not completely accepted. Such a situation firmly hooks the judge on the dilemma’s horns. For if he responds to the new, but unarticulated, conception of his role, he will be condemned for failure to respect the values implicit in the written law: yet if, as his training will incline him, he does respect the latter, he comes into actual conflict with those adhering to the new value system. It is a matter of speculation whether some of the tensions currently detected in various countries are attributable to this quite basic cause.
It is axiomatic that, for a judge to practise his independence, he needs to know that any independent stand will be respected and will not be followed by vindictiveness or adverse repercussions against himself personally or on the judiciary as a whole. In so far as those consequences may flow from non-governmental agencies, such as sectional groups in the community, as a result of decisions affecting them, there is a good chance that such a stand will receive the support of the government and the community at large and, in any case, such pressures are rarely sufficiently co-ordinated to affect the judge directly or seriously. The situation is quite different where the government is aggrieved by judicial activity. No matter what legal safeguards exist, a judge cannot feel immune from Executive reaction, unless the Executive itself is subject to political constraints upon any interference. Such constraints will only be effective if the judiciary has the support and the confidence of the community at large and their independence from government is not only known to exist but, more importantly, is valued. Unhappily, in some countries these conditions do not obviously obtain. If the support for the judiciary is the consequence of opposition party initiatives — and this is more than probable in countries where pressure groups are almost entirely politicized — the issue of independence can be polarised in political terms and government’s actions with respect to the judiciary will be assessed on partisan grounds rather than as an important issue which transcends political commitment.
In situations of this kind, the judge who is determined to withstand any constraints which government may seek to impose upon him is very vulnerable. This will be particularly the case if other judges are more fearful of confrontation, an attitude which, in itself, may provide confirmation for those who doubt whether the preservation of judicial independence is worth the effort. Yet again the judge in these circumstances may face an appalling dilemma: if he is strong and determined in fulfilling his responsibility to the Constitution and the law as he sees it, will he receive the necessary public support and protection in his confrontation with government? If he is compliant and avoids conflict with the Executive, will he not weaken the authority of the judiciary in the public mind and make firm-minded decisions involving government even less easy to reach in future?
There are no simple safeguards, and especially no obvious new ones which could be embodied in the law, to make the vulnerable judge more certain and to permit him more than at present to discharge his functions without constantly looking over his shoulder. The judge ... has been cast by the Constitution in a pivotal role in holding one of the essential balances between competing power weights. The ability to hold that balance depends in part upon his own strength and in part upon the degree of stress which is placed upon the crucial element. Too much stress, insufficient strength, and the system will break.”
GREVILLE SMITH J: There is one matter, not an issue in these proceedings, or related to an issue, which is nevertheless of such importance as, in my opinion, to justify mention. It is as follows.
Proceedings against the respondent for contempt of court in relation to the matters with which this Court is now dealing were first commenced by a notice of motion in this Court by the Leader of the Opposition in Parliament, Mr. Iambakey Okuk, purporting to move as Leader of the Opposition and as representative of the people of Papua New Guinea.
Mr. Okuk withdrew his motion after Mr. Egan the Public Prosecutor also instituted proceedings for contempt and undertook to the court to continue with such proceedings with all due despatch. On the occasion of the undertaking and the withdrawal, Mr. Egan ventured the opinion that Mr. Okuk had no “locus standi”, no right to be heard.
I, also, would have some doubt as to Mr. Okuk’s right in law to move as Leader of the Opposition or in such a representative capacity. However I would have no doubt of his right to move as a private citizen.
Almost one hundred years ago Sir James Fitzgerald Stephen K.C.S.I., D.C.L., was able to say as follows in his History of the Criminal Law of England, (1883, vol. I, ch. XIV), at p. 496:
“On the other hand, no stronger or more effectual guarantee can be provided for the due observance of the law of the land, by all persons under all circumstances, than is given by the power, conceded to every one by the English system, of testing the legality of any conduct of which he disapproves, either on private or on public grounds, by a criminal prosecution. Many such prosecutions, both in our days and in earlier times, have given a legal vent to feelings in every way entitled to respect, and have decided peaceably, and in an authentic manner, many questions of great constitutional importance.”
The authorities (see for instance Cole v. Coulton, per Cockburn C.J.[dcxxxix]59, Duchesne v. Finch[dcxl]60, Snodgrass v. Topping, per Lord Goddard C.J.[dcxli]61, Greenwood v. Leary[dcxlii]62, and Sankey v. Whitlam, per Gibbs J.[dcxliii]63) to this day amply bear out the foregoing statement and the right referred to therein extends to motions for committal for criminal contempt (see R. v. Fletcher; Ex parte Kisch, per Evatt J.[dcxliv]64, R. v. Dunbabin; Ex parte Williams, per Rich J.[dcxlv]65). The law as so stated has by virtue of the provisions of Sch. 2.2 of the Constitution, become part of the law of Papua New Guinea, although it has to some extent been confined by statute in ways not relevant to present consideration.
Section 177 of the Constitution provides that one of the functions of the Public Prosecutor is “... to control the exercise and performance of the prosecution function ...”
In my opinion this refers to the well recognized and established governmental prosecution function only, and does not impinge upon the common law right hereinbefore referred to. Such common law right, as I have already indicated is, and it should be, part of the law of this country. What an invaluable safeguard it might prove on occasions can well be appreciated from the events out of which these present proceedings have arisen, even though under the provisions of s. 176(3)(a) of the Constitution the Public Prosecutor is not subject to direction or control by any person or authority. In such fundamental matters at least, the people of Papua New Guinea should have more than one string to their bow.
I come now to the charges against the respondent. I have had the advantage of reading in draft the reasons for judgment prepared by my brother the Deputy Chief Justice and I agree with his conclusions as to the guilt of the respondent, and with his reasons. On that question there is only this left for me to add, that I am satisfied beyond reasonable doubt, in addition, that the respondent did in substance say as charged, and say for publication, that:
“... the foreign judges on the bench are only interested in the administration of foreign law and not the feelings and aspirations of the nation’s political leaders.”
Accordingly I would find the respondent guilty, as charged, of contempt of this Court.
Turning to the question of penalty, I am satisfied beyond any doubt that the letter of 11th July was a confident, bold and aggressive attempt to constrain the judges of the Supreme Court, when the matter came before them, to decide the Premdas matter in accordance with the clear intimations contained in such letter. That letter was by far the most grievous aspect of the respondent’s grievous conduct.
When she was advised, in response, by the Chief Justice that the judges would not accept directions from or pressure by the Minister for Justice or anyone else, and that advice was made public, the respondent caused to be made public, a splenetic political attack upon the judges which exceeded all bounds of moderation and reason, and was clearly calculated to undermine confidence in the courts.
With the sending of the letter of 11th July the rule of law in Papua New Guinea entered upon a crisis, and it remains to be seen whether that crisis is yet at an end. The respondent, be it noted, still remains the Minister for Justice.
In these circumstances it seems to me that a firm denunciatory and deterrent penalty must be imposed, and that nothing short of a substantial custodial sentence will suffice.
I have had the advantage of reading in draft the judgment prepared by my brother Wilson and I agree generally with his conclusions concerning penalty, and also with his reasons. In addition I have derived assistance from consideration of the judgment of the New Zealand Court of Appeal in R. v. Radich[dcxlvi]66 in which that court stated inter alia as follows:
“We should say at once that this last argument omits one of the main purposes of punishment, which is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilized countries in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences.” (The emphasis is mine.)
The principle enunciated in that classic statement is applicable in the instant case. I agree with my brother the Deputy Chief Justice as to the penalty to be imposed.
Defendant found guilty of the first charge of contempt of court. Defendant found guilty of second and third charges of contempt of court. By majority, defendant sentenced to be imprisoned with light labour for a period of eight months.
Solicitor for the respondent: Ikena Nwokolo.
[dlx>[dlxxxi] Infra p. 502.
[dlxxxii] Infra pp. 502, 503.
[dlxxxiii] Infra p. 492.
[dlxxxiv] Infra p. 503.
[dlxxxv] Infra p. 503.
[dlxxxvi] Infra p. 492.
[dlxxxvii] Infra p. 502.
[dlxxxviii] Infra pp. 502, 503.
[dlxxxix] Infra p. 492.
[dxc] Infra p. 503.
[dxci] Infra p. 492.
[dxcii] Infra p. 502.
[dxciii] Infra p. 503.
[dxciv] Infra p. 502.
[dxcv] Infra p. 492.
[dxcvi] [1936] A.C. 322, at p. 335; [1936] 1 All E.R. 704, at p. 709.
[dxcvii] [1972] 2 N.S.W.L.R. 887.
[dxcviii] [1974] A.C. 273; [1973] 3 All E.R. 54.
[dxcix] [1974] A.C. 273, at p. 294; [1973] 3 All E.R. 54, at p. 60.
[dc] [1974] A.C. 273, at p. 298; [1973] 3 All E.R. 54, at p. 63.
[dci] [1974] A.C. 273, at p. 303; [1973] 3 All E.R. 54, at p. 67.
[dcii] [1974] A.C. 273, at p. 312; [1973] 3 All E.R. 54, at p. 75.
[dciii] [1974] A.C. 273, at p. 322; [1973] 3 All E.R. 54, at p. 84.
[dciv] [1974] A.C. 273, at p. 274; [1973] 3 All E.R. 54, at p. 55.
[dcv] [1974] A.C. 273, at pp. 299-300; [1973] 3 All E.R. 54, at p. 63.
[dcvi] (1920) 28 C.L.R. 419, at p. 432.
[dcvii] [1974] A.C. 273, at p. 302; [1973] 3 All E.R. 54, at p. 66.
[dcviii] (1977) 72 D.L.R. (3d) 95, at p. 102.
[dcix] [1977] P.N.G.L.R. 176, at p. 181.
[dcx] [1960] 2 Q.B. 188, at p. 198.
[dcxi] (1949) 93 S.J. 220.
[dcxii] (1895) 11 T.L.R. 492.
[dcxiii] (1927) 28 S.R. (N.S.W.) 85.
[dcxiv] (1837) 2 My. & Cr. 316; 40 E.A. 661.
[dcxv] (1873) L.R. 9 Q.B. 230.
[dcxvi] (1895) 11 T.L.R. 167.
[dcxvii] [1954] Crim. L.R. 53.
[dcxviii] (1888) 4 T.L.R. 414.
[dcxix] (1890) 44 Ch. D. 649.
[dcxx] (1864) 33 L.J. Ch. 294.
[dcxxi] [1942] N.Z.L.R. 287.
[dcxxii] (1977) 72 D.L.R. (3d) 95.
[dcxxiii] (1803) 1 Cr. 137; 2 Law Ed. 61.
[dcxxiv] (1975) Q.B. 118, at pp. 146-147.
[dcxxv] [1840] EngR 402; (1813) 3 Moo. P.C. 36, at pp. 51-52; [1840] EngR 402; 13 E.R. 15, at pp. 23-24.
[dcxxvi] [1849] EngR 498; (1849) 1 Mac. & G. 116, at p. 122; [1849] EngR 498; 41 E.R. 1207, at p. 1209.
[dcxxvii] (1940) 7 L.J. C.C.R. 58.
[dcxxviii] (1940) 7 L.J. C.C.R. 58.
[dcxxix] [1837] EngR 524; (1837) 2 My. & Cr. 316, at p. 339; [1837] EngR 524; 40 E.R. 661 at p. 670.
[dcxxx] [1888] UKLawRpKQB 112; (1888) 21 Q.B.D. 236, at p. 238.
[dcxxxi] (1873) L.R. 9 Q.B. 219; 230.
[dcxxxii] [1968] EWCA Civ 5; [1969] 1 Q.B. 577, at p. 599.
[dcxxxiii] [1899] UKLawRpAC 33; [1899] A.C. 549, at p. 561.
[dcxxxiv] [1968] 2 Q.B. 150, at p. 155.
[dcxxxv] [1972] 2 N.S.W.L.R. 887, at p. 908.
[dcxxxvi] [1911] HCA 22; (1911) 12 C.L.R. 280, at p. 286.
[dcxxxvii] [1969] N.Z.L.R. 55.
[dcxxxviii] [1972] 2 N.S.W.L.R. 887, at p. 916.
[dcxxxix] (1860) 24 J.P. 596; 121 E.R. 261.
[dcxl] (1912) 28 T.L.R. 440, at p. 441.
[dcxli] (1952) 116 J.P. 332.
[dcxlii] [1919] V.L.R. 114.
[dcxliii] [1978] HCA 43; (1978) 53 A.L.J.R. 11, at p. 13; [1978] HCA 43; 21 A.L.R. 505, at p. 508.
[dcxliv] [1935] HCA 1; (1935) 52 C.L.R. 248, at p. 258.
[dcxlv] [1935] HCA 34; (1935) 53 C.L.R. 434, at p. 445.
[dcxlvi] [1954] N.Z.L.R. 86, at p. 87.
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