SCR No 3 of 1984; Ex Parte Rowan Callick and Joe Koroma [1985] PGSC 20; [1985] PNGLR 67 (1 April 1985)

SUPREME COURT REFERENCE NO 3 OF 1984; EX PARTE ROWAN SIDNEY CALLICK AND JOE KOROMA

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CONTEMPT - Contempt of Supreme Court - Practice and procedure - Summons - Hearing by single judge of Supreme Court.

CONTEMPT - Contempt sub judice - What constitutes - Prejudgment of issues before court - Tendency to lower authority of court - Tendency to influence court - Real risk of prejudice to proceedings.

Following the hearing but before delivery of judgment on a reference to the Supreme Court on a Constitutional matter referred by a judge of the National Court relating to a disputed election return, an article dealing with the matters before the court was published in a newspaper. The Supreme Court caused the Registrar to issue a summons for contempt to show cause charging therein that the article:

N1>(1) A summons for contempt of the Supreme Court issued by the Supreme Court itself may be heard by a single judge of the Supreme Court who may be a member of the court allegedly contemned.

N1>(2) Publication in the media of comment on a matter before the court cannot be regarded as a matter “tending to influence” the court.

Attorney-General v BBC [1981] AC 303 at 342 and Attorney-General v Times Newspaper Ltd [1974] AC 273, adopted and applied.

N1>(3) It is contempt of the court to publish material which prejudges the issue or is likely to cause public prejudgment of the issue the subject of pending litigation.

N1>(4) Whether published material purports to prejudge an issue before the court depends on whether or not, in the circumstances of the particular case, what has happened is something which is likely to prejudice the fair trial of the action, and the risk that it will prejudice the fair trial of the action must be a real risk.

N1>(5) Any act done or material published calculated to bring a court or a judge of the court into contempt or to lower his authority is a contempt of court.

N1>(6) Matters relevant to the determination of whether published material tends to lower the authority of the court include:

N2>(c) the balancing of the private right to criticise in good faith public acts done in the seat of justice and the rights of those before the courts to have their cases heard free from matters of prejudice;

R v Commissioner of Police of the Metropolis; Ex parte Blackburn (No 2) [1968] 2 QB 150.

These were proceedings for contempt of the Supreme Court commenced by summons issued by the Registrar at the direction of the court.

MCDERMOTT J: On 28 October 1984, the Registrar at the behest of the Supreme Court, Bredmeyer J presiding with myself and Amet J as members issued a summons to show cause. The particulars of the alleged contempt are set out in the summons which was returnable on 2 November 1984. Further detailed particulars were supplied on that day in response to a request for them.

The allegations arose out of the publication of an article entitled “Okuk at home and Away” published on 18 October 1984 in “The Times of Papua New Guinea”. On 26 September 1984, the Supreme Court, composed as stated, heard submissions on a Reference made pursuant to the Constitution, s 18, by Woods J who was then hearing an election petition in which Mr Okuk’s eligibility to stand for the seat of Unggai-Bena is in issue. No answer has yet been given by the court.[ii]¹ It is alleged that the article comments directly on the questions before the court for answer.

No action was taken by the Secretary for Justice or by the parties to the proceedings to bring the article to the Court’s attention or to institute proceedings for contempt.

Preliminary objection was taken by Mr Fuller on the proposed course of these proceedings:

Balogh v Crown Court at St Albans [1974] 3 All ER 283 has been cited in support of the argument against a summary hearing. That was an unusual case where it was intended to pump some laughing gas into a courtroom to enliven a dull pornography case. The offender was caught in an adjourning courtroom and dealt with summarily by another judge. Whilst one can understand the Court of Appeal’s decision that summary action should only be taken when it was urgent and imperative for the judge to act immediately to prevent justice being obstructed or undermined, the decision should be looked at on the facts giving rise to it.

I have referred to the background of this matter. It cannot be said that these proceedings are “summary” as understood by the common law proceedings for contempt ie without appeal, indictment or information. I will say more on this presently. The Secretary for Justice has been requested to provide a lawyer to argue the prosecution of the contempt. Perhaps I should add here that there is no misapprehension that the summons is directed at an alleged criminal contempt, that is the article is alleged to interfere with the administration of justice. The procedural point has not been pressed.

This can be divided into two areas of argument. The first, whether I, as a member of the Supreme Court allegedly contemned, should sit in judgment. The second, whether the summons should be referred to a judge of the National Court for determination.

The article is allegedly a contempt of the Supreme Court. To counter the criticisms which arose following The Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448, it was considered that one judge of the Supreme Court determine the matter, thus leaving open an avenue for appeal. In contempt matters, a right of appeal has only in recent years become available in the United Kingdom (Administration of Justice Act 1960). In this country it could well be said such a right is implicit in the Constitution, s 37(16), because the allegations, if found, are of a type which are categorised as criminal contempt with attendant sanctions.

It is important to bear in mind the nature of the allegations. They are not directed to words spoken or actions done in the face of the court. The words are not scandalous or express or imply criticism of members of that Supreme Court Bench; rather the words are allegedly such as would cause doubt in the administration of justice in the Court deciding matters pertinent to an election petition and interpretation of the Constitution. It is a matter going to public confidence in the judicial system.

The Rules of the National Court set out procedures for dealing with alleged contempts in the face of that Court or otherwise outside it. I can see no real difference in what has been done in this instance. I am now advised that admissions will be made concerning the writing, printing and publishing of the article.

There is nothing contained in the Rules or developed practice to preclude the court itself from dealing with the contempt whether in the face of the court or otherwise. That procedure has resulted from the development of the law on contempt and there appear to be good reasons for this procedure. The court itself is apprised of the matter, the gravity of the contemptuous action can be properly gauged against the issues before it. In this instance, the article has to be seen against the background which produced it. It is clearly one which is in the province of the court before which the matter is current.

I am very much aware of the criticisms with which civil libertarians view contempt proceedings. I have been referred to Freedom in Australia (2nd ed, 1973) by Professors Campbell and Whitmore where the following appears (at 315);

“A court which entertains contempt proceedings in respect of publication attacking one or more of its members equally well might be said to be sitting as a judge in its own cause. The more-so if proceedings have begun on the court’s own motion. Such criticism would have far less weight if the alternate responsibility of deciding whether it had been scandalised devolved upon a jury.”

That statement has to be seen in its context — whether or not there be jury trials for contempt. A member of the court is not being attacked here, rather it is the public notion of “justice” which has been raised.

Lest there be any doubt about the care with which I view the objections raised, I quote Laskin J, as he then was, from McKeown v The Queen (1971) 16 DLR (3rd) 390 at 398:

“‘Contempt of Court’ is well known in the vocabulary of the law. It is also well known that it is not a phrase to be taken literally in any sense of being concerned with protection of the personal dignity of the judge or the honour of the Court. It is rather a sanction to serve the administration of justice in the public interest. When invoked for this purpose, the reasonable expectation should be that it will be exercised with scrupulous regard for those principles that underlie the administration of justice through law. Included among these is the principle that no one shall be liable to penalty or punishment without a fair hearing; and the principle that he shall not suffer conviction at the hands of another who is both his prosecutor and his judge; and the principle that he shall not be judged by one in whom there is a reasonable apprehension of bias.”

Although delivering a dissenting judgment in that case, there can be no quibble with the correctness of this statement.

Because of the issue of the summons, the supply of particulars, the provision of a prosecutor, the public and general nature of the allegations, the time given for the preparation of the case, (the contemners have not yet been asked to answer) and the way open for an appeal if desired, I am of the view that the high standards of justice stated above will be met in this instance.

There is a further matter of practicality which I should mention. This is an alleged contempt of the Supreme Court. There are four judges of that Court already engaged in this issue. There are only three other Supreme Court judges available if there is to be an appeal. There are simply no other judges available to hear it. In my view, it is not a matter to be remitted for a hearing before an acting judge of the National Court, indeed this might well cause jurisdictional problems.

On 25 July 1984, Woods J, sitting in the National Court, referred three constitutional questions to the Supreme Court. The first, and as it transpired, the only question answered was:

“Do the words ‘... have resided in the electorate ... for a period of five years at any time’ appearing in s 103(2) of the Constitution mean:

(b) five years composed of intermittent periods of physically residing in the electorate?”

It arose from a disputed return for the Unggai-Bena electorate following a 1983 by-election. The parties were an unsuccessful candidate Kevin Masive, the petitioner, and Iambakey Okuk, the declared winner, respondent.

In the meantime the alleged offending article appears in the newspaper. The summoned parties are the publisher/printer and writer of the article. It is short and I set it out in full:

Around the time Parliament meets for the last time this year, a court decision on the future of Iambakey Okuk will be handed down.

The decision will either qualify or disqualify him of his residential legitimacy to sit for Bena, the home of his wife Karina.

I travelled through there last week and, even though I did not speak to the immediate in-laws of Mr Okuk, the few people I spoke to along the side of the road were lost when I started asking about him and his residential qualification.

But one thing that was common in their replies was that ‘Okuk emtambu bilong mipela’, (Okuk is our in-law).

That reply can be ambiguous. Against Mr Okuk, it could be interpreted that the politician is only an in-law, therefore has little importance or presence in Bena.

On the other hand, it could mean that Mr Okuk is special and included within the Bena because of his marriage to one of their own offspring. This would be applicable for any other non Bena marrying into the clan.

My own tradition falls within the context of Bena, the Eastern Highlands and the Highlands generally.

Upon the payment of bride price a mutual understanding is made that after this ceremony, the bride and groom are one and free to set up home either in the man’s tribe or in the woman’s.

In most instances, the woman is taken to the husband’s home initially, but is free to come back to her own people with her husband and/or children. They can have a house in both places.

Hence the concept of ‘home’ applies to both parties in both their original homes, binded through marriage. It is important to understand that either party does not really have to live there to call it ‘home’.

To disqualify a Parliamentarian for not being at home prior to the election period might appear to question the longstanding traditional intricacies that make Bena — and Highlands — society.

N2>(1) that the article comments directly on matters before the court for answer;

N2>(2) that the article cites matters relating to custom and draws a conclusion as to “home”;

N2>(3) that the whole of the last paragraph tends to call the court into disrepute.

As a legal backdrop to presentation of this matter, I adopt the following statement of Lord Diplock in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 309:

“The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.”

On 30 November 1984, the Supreme Court delivered its answer. It is sufficient for present purposes to cite the headnote to the roneod judgment:

N2>(1) That the five years residence required by s 103(2) of the Constitution need not be continuous. It can be discontinuous or intermittent. It can be an aggregate of different periods of intermittent residence.

N2>(2) That the residence required by s 103(2) is real, permanent and physical residence. It is not constructive residence.

In re Moresby North East Parliamentary Election (No 2) Goasa Damena v Patterson Lowa [1977] P&NGLR 448 and Dixon Daduwe v Joe Area and Others [1979] PNGLR 160, disapproved.” (See SCR No 3 of 1984; Kevin Masive v Iambakey Okuk [1984] PNGLR 390.)

It is immediately apparent that the second allegation cannot be sustained, and thus is as it should be in the absence of a jury. As Lord Salmon said in Attorney-General v BBC [1981] AC 303 at 342:

“I am and always have been satisfied that no Judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a Judge.”

And further Lord Reid in “The Times” case (at 301), speaking of a case under appeal:

“... it is scarcely possible to imagine a case where comment could influence Judges in the Court of Appeal or noble and learned Lords in this House. And it would be wrong and contrary to the existing practice to limit proper criticism of judgments already given but under appeal.”

Briefly put, the Supreme Court had to decide upon the meaning of residence. The article speaks of “home” and how it can be acquired in Bena. In my view the concept of “home” and residence were inextricably mixed in the Reference. The article says what “home” means in Bena regardless of electoral law provisions. In other words, the court might decide otherwise in Waigani, but we (and I use the term to include the writer and his Bena contacts) know what it means in Bena — and impliedly, in the Highlands. There is an obvious comparison with the article, the subject of the proceedings in Vine Products Ltd v Green [1966] 1 Ch 484. After the close of pleadings, but before trial of an action involving the use of the word “sherry” an article on the issue appeared in The Daily Telegraph entitled “The Truth of Labels”. The views therein expressed coincided with those of the defendants in the action. In the subsequent contempt action by the plaintiff because of this discussion on the merits of the case reliance was placed on the following statement:

“If anyone discusses in a paper the rights of a case on the evidence to be given before the case comes on, that, in my opinion, would be a very serious attempt to interfere with the proper administration of justice.” (Per Cotton LJ in Hunt v Clarke [1881] UKLawRpCh 86; (1889) 58 LJQB 490 at 492.)

“It is contempt of this court for any newspaper to comment on pending legal proceedings in a way which is likely to prejudice the fair trial of the action. That may arise in various ways. It may be that the comment is one which is likely in some way or other to bring pressure to bear upon one or other of the parties to the action, so as to prevent that party from prosecuting or from defending the action, or encourage that party to submit to terms of compromise which he otherwise might not have been prepared to entertain, or influence him in some other way in his conduct in the action, which he ought to be free to prosecute or to defend, as he is advised, without being subject to such pressure.”

This was criticised in The Times case by Lords Reid and Cross as being too wide a statement of the law. With respect I believe this was restricted by Buckley J himself who said at 498:

“The test must always be in my judgment, whether or not in the circumstances of the particular case what has happened is something which is likely to prejudice the fair trial of the action, and the risk that it will prejudice the fair trial of the action must be a real risk.”

The Times case publication was a series of articles which drew the public’s attention to the plight of children affected by thalidomide. A complaint was made to the Attorney-General because of pending litigation against the manufacturers of this drug. The editor provided the Attorney with a draft of a further article intended for publication. An injunction was granted to restrain publication. The appeal to the House of Lords was against the discharge of the injunction. This really was a test case in the true sense.

All the Lords were of the view that it is contempt to publish material which prejudged the issue or was likely to cause public prejudgment of the issue, the subject of pending litigation.

In Schering Chemicals Ltd v Falkman Ltd [1981] 2 All ER 321, the issue was the restraint on broadcasting a television documentary entitled “The Primodos Affair” about a drug of that name which had generated wide interest akin to the drug thalidomide in The Times case. The Court of Appeal upheld the refusal to grant an injunction. All judges were of the view that the presentation of the issues in the programme did not constitute contempt in the pending proceedings. Shaw LJ said at 340:

“There is the larger question as to the undesirability of presenting simulated trials of the subject matter of pending or prospective litigation on so influential a medium of publicity as television. This must be a matter of degree. Where the presentation appears to encroach on the function and authority of the judicature, the limits of tolerance are clearly exceeded. In other circumstances the opportunity for free public discussion of topics of general concern should in general and always subject to legitimate private rights, not be unduly curtailed.”

In my judgment, the film cannot affect the result of the action and the court should not be anxious to accept submissions that discussions of a pending action must necessarily be unseemly or harmful to the administration of justice. Each case must be judged on its own merits and, so far as this case is concerned, the fear of harm does not justify the grant of an injunction.”

In considering this charge, it has been urged upon me to see the respondent as no ordinary litigant. He was a well known politician, the Leader of the Opposition. This in itself generated the public’s interest. The article “merely sets out the issues to be determined or what ‘might appear’ to follow from one option open to the court” — and this cannot be considered a prejudgment. Further, I am asked to take into account the personal style in which it was written — it was an expression of individual opinion, not the opinion of the newspaper. I confess that I find this submission hard to follow. I really do not think it matters whose opinion it is — the fact is that it was written and published. In my view such a submission ignores the fact that the view expressed is the one most clearly favourable to the respondent.

“Prejudgment” also falls back on the judge of fact — which is not a jury in this jurisdiction, the risk as opposed to a remote possibility that the publication will interfere with or obstruct the due administration of justice has to be a real one. But not all prejudgment attracts punishment: Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887 and the views expressed in The Times case that contempts of a technical nature could be so venial as not to warrant penalty, see Lord Reid at 301, Lord Diplock at 213 and Lord Cross at 325. It was Lord Reid’s view that:

“... the fault was so venial and the possible consequences so trifling that it would have been quite wrong to impose punishment or I think even to require the newspaper to pay the costs of the applicant. But the newspaper ought to have withheld its judgment until the case had been decided.”

In many ways this allegation is linked with prejudgment — whatever you decide is irrelevant as we in Unggai-Bena know what the real position is. In my view, this is the thrust of the last paragraph of the article. It is submitted that the standard approach to this allegation is the definition of Lord Russell of Killowen CJ in R v Gray [1900] UKLawRpKQB 63; [1900] 2 QB 36 at 40 and approved by the Judicial Committee in Ambard v Attorney-General for (Trinidad and Tobago) [1936] AC 322 at 334:

“‘Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke LC characterised as “scandalising a Court or a judge”. (In re Read and Huggonson (1742) 2 Atk 469.) That description of that class of contempt is to be taken subject to one, and an important, qualification. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court.’ The law ought not to be astute in such cases to criticise adversely what under such circumstances and with such an object is published; but it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen:”

In relation to this ground of contempt that is still the position, see Badry v Director of Public Prosecutions of Mauritius [1982] 3 All ER 973 at 979 where the Privy Council said:

“But whilst nothing really encourages courts or Attorneys-General to prosecute cases of this kind in all but the most serious examples or courts to take notice of any but the most intolerable instances ...”

This reticence is also seen in R v Commissioner of Police of the Metropolis; Ex parte Blackburn (No 2) [1968] 2 QB 150. Although the matter there concerned publication of a criticism of a Court of Appeal judgment, the approach is relevant.

“This is the first case, so far as I know, where this Court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. 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.” (Per Lord Denning MR at 154-155.)

The article cannot be said to be scurrilous, it is not abusive, it does not cast improper aspersions against the judges or the court. The article is not unduly outspoken but it does suggest that any disqualification will not fit in with Highland ideas of residency. That of course was not what the court had to decide, rather it was the meaning of residence as it appears in the statute. It was that meaning which could affect the respondent, irrespective of Highland ideas to the contrary. I have had the distinct impression, from my first reading of the article, of a strong undertone of the court’s irrelevance in relation to deciding the issue of the respondent’s residence. That is still my impression. But in the end result does the article amount to a contempt?

There are relevant evidentiary matters which are now convenient to mention. Without objection, eight affidavits were filed with the object of showing the nature of the newspaper’s readership and its reaction to the article. The paper is definitely upmarket and not because of price. It is aimed at a more informed reader than the average daily newspaper. Without disrespect to either the paper or to the people of Unggai-Bena, The Times of Papua New Guinea is not the sort of publication which would be widely read there. It is said that “Koroma’s Corner” in the opinion of an army officer, a doctor, a cleric, academics, and businessmen, would not tend to influence the court or call it into disrepute. I have no evidence about what the electors think. All I know as a matter of public knowledge is that they are being geared up to go to the polls again with a similar choice of candidates.

Throughout the cases I have mentioned, there is a strong regard for freedom of expression and I also bear in mind this freedom as expressed in the Constitution, s 46.

It comes back, of course, to a balancing of interest. As Lord Reid said in The Times case (at 294) the law of contempt “... is and must be founded on public policy”. There are two fine statements upon the balance to be struck: statements of wider application than the circumstances which gave rise to them. The first is that of Lord Atkin in Ambard v Attorney-General for (Trinidad and Tobago) at 355:

“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.”

“It is of extreme public interest that no conflict should be permitted which is likely to prevent a litigant in a Court of Justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.

It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of that fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter.”

I must now apply these principles to the three charges laid against the publisher and writer of the article. I can find no better encapsulation of law in deciding the matter before me than the following:

“The apprehension of detriment must be of a tangible character, plainly tending to obstruct or prejudice the due administration of justice in the particular case pending. Regard must be had to all the surrounding circumstances: the manner of trial, the time of the publication, the causes leading to the publication, and the tenor of what is published.”

Per Chancellor Boyd in Meriden Britannia Co Ltd v Walters (1915) 25 DLR 167 at 169.

The charges are for a criminal contempt with attendant sanctions. I am left with the impression that what has been published borders on contempt and that of course is not contempt of court as charged.

[ii] See now SCR No 3 of 1984; Kevin Masive v Iambakey Okuk [1984] PNGLR 390.

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Supreme Court of Papua New Guinea

SCR No 3 of 1984; Ex Parte Rowan Callick and Joe Koroma [1985] PGSC 20; [1985] PNGLR 67 (1 April 1985)

Papua New Guinea Law Reports - 1985