Attorney General v Hamidian-Rad [1999] PGSC 38; [1999] PNGLR 278 (8 October 1999)

[1999] PNGLR 278

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE ATTORNEY GENERAL, MR MICHAEL GENE;
INDEPENDENT STATE OF PAPUA NEW GUINEA; AND
INTERNAL REVENUE COMMISSIONER, MR DAVID SODE

V

DR PIROUZ HAMIDIAN-RAD

WAIGANI: KAPI DCJ; SHEEHAN AND SALIKA JJ
24 September; 8 October 1999

Facts

When appeal proceedings were before the Court, the respondent made statements to the media implying that the Executive Government had instructed the Supreme Court to decide against him and therefore he was not surprised when the Supreme Court decision was against him.

Held

The respondent’s defence that he only made these statements on the basis of what he had been told is no defence. Repeating scandalous allegations is not and has never been an excuse in civilised jurisdictions and in criminal contempt anymore then it is a defence in civil defamation. It is not a defence in suits for defamation. The Court was of the opinion that these statements were calculated to undermine the integrity and the authority of the Court. Such conduct undermines the due administration of justice.

Papua New Guinea cases cited

Public Prosecutor v Rooney (No. 2) [1979] PNGLR 448.

A-G v Times Newspapers [1974] AC 273.

Other case cited

Ambard v A-G for Trinidad & Tobago [1936] AC 322.

Counsel

G Sheppard, for the appellants.
P Parkop, for the respondent.

8 October 1999

KAPI DCJ; SHEEHAN AND SALIKA JJ. The respondent has been charged with contempt of court arising out of his conduct in connection with the appeal proceedings brought before this Court pertaining to orders made by the Chief Justice on 13 August 1999 permitting the respondent to leave the country and to return on the 29 September 1999.

This Court determined the appeal in favour of the appellants on 27 August 1999 and the decision of the Chief Justice was quashed and the matter has been remitted back to the National Court to be dealt with in accordance with O 16 of the National Court Rules.

Following the completion of submissions by counsel for the parties on the 24 August on the appeal but before the Court handed down its decision, the respondent made statements in the media accusing the executive arm of Government that it had instructed this Court to quash the decision of the Chief Justice. This statement was broadcasted by the EM TV on the evening of the 24 August and the story was carried on the Post Courier on the 25 August.

After the Court handed down its decision on 27 August, the respondent made a further statement to the media saying that the predictions he made on the 24th August had come true.

As a consequence of these statements, the appellants filed an application charging the respondent with contempt of court. The charge was brought to the attention of the Court on 30 August 1999. The charge was put to the respondent on the following terms:

"That respondent Pirouz Hamidian Rad be punished for contempt of court by reason that on or about 24th August 1999 he did wrongfully make the public comments attributed to him in the newspaper articles annexed hereto as Schedule 1 and Schedule 2, and television coverage, a videotaped copy of which is annexed hereto, which comments were;

(a) in connection with pending legal proceedings and;

(b) tending to affect the course of justice, or

(c) tending to scandalize the Court by:

(i) publicly suggesting that the Supreme Court was corrupt in that the Judges hearing this matter were in fact influenced in their verdicts and decisions by the Prime Minister; or

(ii) publicly suggesting that the Judges hearing this matter were biased."

The respondent pleaded not guilty to the charge and the matter was set down for trial on 24th September. At the trial, the charge was amended to include the statements made on the 27th August 1999 as part of the circumstances constituting the contempt of court. The respondent pleaded not guilty to the amended charge.

The evidence called by the appellants consisted of the video recording of the EM TV news at 6.00 pm on the 24, 27 August and the Post Courier report on the 25 August 1999. This evidence was admitted without any objection. It clearly established that the respondent had published the statements complained of.

The evidence called by the respondent consisted of his affidavit setting out a narrative of events. He told the Court that he had spoken out in frustration at government agencies harassing him and had repeated only what someone had told him. In cross-examination he insisted that the statements made were intended only to respond to the attacks the Executive Government had made on himself. He also summoned Mr Jerry Ginua of EM TV and reporter Colin Taimbari of Post Courier to give evidence.

Mr Ginua gave evidence to the effect that the lawyer for the respondent had called him in the afternoon and made an attempt to stop EM TV from broadcasting the respondent remarks made to the cameraman on 24 August. He told the Court that EM TV had decided to go ahead with the broadcast.

Mr Taimbari gave evidence that the story printed on 25 August was based on the report and tape relayed to him by EM TV journalists. In cross-examination, he said he had approached the respondent on 27 August after the decision was handed down and as he entered his car, outside the Court. He had asked the respondent if he had anything to say. The respondent replied that the decision had gone as predicted on 24 August was recorded on an audiocassette. That has been admitted in evidence.

The first question we have to determine is, whether, the respondent is guilty of contempt of court from all these circumstances. Counsel for the respondent submits that there was no intention of scandalizing the Court. While he conceded the statements might well be considered to scandalize the Court, he submitted that what the respondent had said were in the heat of frustration over the way the Department of Foreign Affairs and the Internal Revenue Commission had treated him. He had attempted to stop the broadcast but was unsuccessful. He submits that in the circumstances the respondent could not be guilty of contempt of court.

Counsel for the appellants contend that the statement made to the EM TV cameraman on 24 August and the reference to this statement on 27 August can bear no other meaning than an attack with the intention to scandalize the Court. Plainly the respondent’s statements constitute contempt of court.

The offence of contempt of court is an exception to the requirement under s 37(2) of the Constitution that a criminal offence must be defined and the penalty prescribed by a written law. It is now established that contempt of court is a matter of the underlying law (see R v Rooney [1979] PNGLR 448).

Lord Diplock in A-G v Times Newspapers [1974] AC 273 said at page 307:

"Contempt of court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms."

At page 308 Lord Diplock discusses "criminal contempts":

"To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also-and this more immediately-the particular interests of the parties to the case."

This statement is consistent with what the Privy Council said in Ambard v A-G for Trinidad & Tobago [1936] AC 322 at pp 334-335:

"It will be sufficient to apply the law as laid down in Reg. v Gray [1900] UKLawRpKQB 63; [1900] 2 Q.B. 36 by Lord Russel of Killowen C.J.: ‘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 L.C. characterized as ‘scandalizing a Court or a judge.’ "

At page 309 Lord Diplock in A-G v Times Newspapers (supra) defines "due administration of justice":

"The 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 arbitration 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."

We find that the statements referred to in the above-named cases accurately state what constitutes contempt of court for the purposes of the case before us. These principles are consistent with what the Supreme Court enunciated in the Public Prosecutor v Rooney (supra).

In the present case, there is no dispute that the respondent made the statements to the EM TV cameraman on 24 August and made reference to this statement in the latter statement he made to an EM TV cameraman on 27 August after the decision of the Court was handed down. It is also not disputed that these statements were widely published to the public. The question is whether the circumstances constitute contempt of court.

The respondent explained that his statement was intended to criticize the Executive Government only and not the Court. We reject this explanation. We simply do not believe that a man of the respondent’s intelligence, qualifications and experience was not able to understand the plain meaning of the statements he made and the consequences that must flow from them. The meaning and effect to be given to the statements are clear and plain, namely, that the Court was going to quash the decision of the Chief Justice as instructed by the Executive Government. This meaning is plain from the statement made on 24 August:

"I was told at 10 o’clock last night what the decision is going to be and that Judges had been instructed to overturn the Chief Justice’s decision.

So this is getting really political. And today it was very clear that who was leading the discussions. I wasn’t sure whether the Court was making the argument or the lawyer.

So to me this thing is immaterial. But when summary is over, if something happens to me physically or health wise, I am holding this country responsible. I am suing the Prime Minister personally and I am collecting from the State K10 million. Thank you very much."

This statement is to be considered together with the respondent’s brief statement to the EM TV cameraman on 27 August:

"I do not have any comments to make except – as predicted."

The respondent was clearly suggesting that the Court was instructed to follow the instructions of the Executive Government and that from the way the Court was conducting the discussions during the hearing of legal argument, that it was going to do so. This is a clear assertion that the Court was not going to decide the appeal in accordance with the principles of law and justice. It would decide as the government directed. It is a plain statement that the Court had become involved in politics and was merely an instrument of the Government.

The respondent’s defence that he only made these statements on the basis of what he had been told is no defence. Repeating scandalous allegations is not and has never been an excuse in civilised jurisdictions and in criminal contempt anymore then it is a defence in civil defamation. It is not a defence in suits for defamation. We are firmly of the opinion that these statements were calculated to undermine the integrity and the authority of this Court. Such conduct undermines the due administration of justice.

The respondent had offered as explanation that he had made these statements on the basis of what he had been told by someone in the Prime Minister’s Office. He admitted in his affidavit that he had not verified the accuracy of the statement before making it. Yet when invited to admit the statement were without basis in fact or truth he declined to do so saying he didn’t know. It is clear that there is absolutely no basis for making the allegation that this Court was instructed to quash the decision of the Chief Justice by the Executive arm of the Government. We are satisfied that the respondent is guilty of contempt of court.

Lawyers for the first and second appellants: Solicitor-General.
Lawyers for the third appellant: Maladinas.
Lawyers for the respondent: Powes Parkop.