Namah v Pato [2013] PGSC 84; SC1305 (18 December 2013)

SC1305

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 84 OF 2013

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

BELDEN NORMAN NAMAH MP
Applicant

V

RIMBINK PATO MP,
MINISTER FOR FOREIGN AFFAIRS & IMMIGRATION
First Respondent

THE NATIONAL EXECUTIVE COUNCIL
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

RE A CHARGE OF CONTEMPT OF COURT AGAINST
LOANI RAVU HENAO
Contemnor

Waigani: Cannings J
2013: 18^th December

CONTEMPT – contempt by publication – sub judice – whether public comment on pending court proceedings impairs public confidence in impartial and competent administration of justice – tests to apply.

A lawyer involved in a Supreme Court case was reported in a newspaper as having made comments on the issues in the case, which had not yet been heard by the Court. The issues included whether the applicant had standing and whether an agreement entered into between the governments of Papua New Guinea and Australia was unconstitutional. The comments attributed to the lawyer were that the applicant ‘had standing as he was a citizen, a member of Parliament and the Leader of the Opposition’, and that he (the lawyer) was ‘simply asking the Supreme Court that the MOU signed between Australia and PNG was unconstitutional ... we maintain that Section 42 of the Constitution was breached and is being breached on a daily basis’. The respondents to the pending Supreme Court proceedings charged the lawyer (the contemnor) with contempt of court, arguing that he had made public comment on issues that were sub judice. A trial was conducted before a single Judge of the Supreme Court. The contemnor pleaded not guilty.

Held:

(1) Contempt proceedings, though brought in the context of civil proceedings, are fundamentally criminal in nature. The party that has laid the charge of contempt of court bears the onus of proving its case beyond reasonable doubt.

(2) Here, the prosecution failed to prove beyond reasonable doubt that the contemnor made the comments attributed to him in the newspaper. Therefore, the contemnor was found not guilty.

(3) There is no rule of law – in the sense of a blanket prohibition – that says that once a matter is before the court, persons in the community cannot comment on what is before the court.

(4) Conduct will amount to contempt sub judice – also called a publication contempt – where published comments present a real risk, as opposed to a mere possibility, of interference with the due administration of justice or where it is intended to prejudice the fair hearing of the matter before the court.

(5) Here, the comments attributed to the contemnor were statements of fact; there was nothing obnoxious about statements of a lawyer as to the issues he intended to put before the court. The prospect of comments of such a nature having any influence on the judges who would constitute the court was remote. There was no serious risk of prejudice to the interests of justice or the interests of any of the parties. Therefore, if it had been proven that the contemnor actually made the statements attributed to him, he would still have been found not guilty.

Cases Cited

The following cases are cited in the judgment:

Charles Maino v Moi Avei & Electoral Commission (1998) N1733
Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448
Raikos Holdings Ltd v Tony Tai Chung Chi and Others, OS No 924 of 2006, 23.01.07, unreported
Supreme Court Reference No 3 of 1984; Ex Parte Rowan Sidney Callick and Joe Koroma [1985] PNGLR 67

NOTICE OF MOTION

This was the trial of a motion for contempt of court.

Counsel

P Kuman, for the Respondents (prosecuting the motion)
N M Cooke QC, for the Contemnor

18^th December, 2013

1. CANNINGS J: The contemnor, Loani Ravu Henao, is charged with contempt of court. The gist of the charge is that Mr Henao on 13 October 2013 made comments at a press conference at Parliament House which prejudged issues that are before the Supreme Court in a case yet to be heard. That case is the application by Mr Namah, the Leader of the Opposition, which is a constitutional challenge to the Memorandum of Understanding between Australia and Papua New Guinea concerning the asylum seeker issue. Mr Henao is the applicant’s lawyer and is involved in the pending Supreme Court case.

2. The two statements that are contemptuous according to the prosecution and which are the subject of the charge are:

• first, the statement that Mr Namah has standing as he is a citizen of Papua New Guinea, a Member of Parliament and the Opposition Leader of PNG and that he would base his argument on these factors to re-register the case;
  
• secondly the statement that “They did not come into this country unlawfully. I am simply asking the Supreme Court that the MOU signed between Australia and PNG was unconstitutional. We still maintain that Section 42 of the Constitution was breached and is still being breached on a daily basis.”
  

3. Mr Henao has pleaded not guilty.

PROCEDURE

4. This is a motion for contempt. The National Court Rules apply in this case, even though the proceedings have been commenced in the Supreme Court. The opening provisions of the Supreme Court Rules 2012 ensure that the rules as to contempt that apply in the National Court, in Order 14 of the National Court Rules, apply to contempt proceedings commenced in the Supreme Court. The National Court’s and the Supreme Court’s interpretation of the National Court Rules has been that those rules must be applied in the context of other procedures of the National Court that apply in criminal proceedings.

5. The courts have taken that consistent approach to reflect the position that as a matter of law, contempt proceedings, even though brought in the context of civil proceedings, are fundamentally criminal in nature. That means that in this case where a publication contempt is being alleged against the contemnor, the prosecution – the party which has laid the charge of contempt of court – bears the onus of proving its case beyond reasonable doubt.

DID THE CONTEMNOR MAKE THE ALLEGED COMMENTS?

6. I uphold the submission of Mr Cooke for the contemnor that the prosecution has failed to prove beyond reasonable doubt that Mr Henao made the comments attributed to him in the Post-Courier in its 14 October 2013 edition. There is no evidence other than what was published in the newspaper and in inferences that might be drawn from Mr Henao’s writing a letter to the newspaper seeking a retraction or a modification of what he is reported to have said and an inference that might be drawn from how there was an exchange of correspondence between the respondents’ lawyers, Kuman Lawyers, and Mr Henao. That is the only evidence on which a conclusion of fact can be based that these statements, which are the subject of the charge, were actually made by Mr Henao.

7. To put it simply, the prosecution has not proven the facts on which it relies to prove a case of contempt. The contemnor, for that reason alone, must be found not guilty. The prosecution perhaps should have obtained a tape recording or a video recording of the press conference or obtained evidence from the Post-Courier reporter to whom Mr Henao apparently made some comments. But that evidence is not before the court. Mr Henao has not conceded that he made the comments which formed the subject of the charge. So, the prosecution’s case must fail. The contemnor must be found not guilty.

WOULD THE CONTEMNOR HAVE BEEN GUILTY IF IT WERE PROVEN THAT IN FACT HE MADE THE COMMENTS?

8. If I were to proceed to determine the charges of contempt on the basis of an assumption that the comments attributed to Mr Henao in the Post-Courier report were accurate, I would still have difficulty finding the contemnor guilty.

9. There is no rule of law – in the sense of a blanket prohibition – that says that once a matter is before the court, persons in the community cannot comment on what is before the court. The principle of sub judice has tended to be much misunderstood, in my opinion, in Papua New Guinea. I pointed this out in my decision in Raikos Holdings Ltd v Tony Tai Chung Chi and Others, OS No 924 of 2006, 23.01.07, unreported.

10. There seems to be general agreement amongst counsel that the relevant tests to be applied to determine whether someone is guilty of a publication contempt come from the leading Supreme Court cases of Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448 and Supreme Court Reference No 3 of 1984; Ex Parte Rowan Sidney Callick and Joe Koroma [1985] PNGLR 67. There is also another case, a decision of the National Court that counsel did not mention, but I think it is relevant, Charles Maino v Moi Avei & Electoral Commission (1998) N1733.

11. The Rooney case resulted in a guilty verdict against the Minister for Justice. The Court held that conduct would amount to contempt sub judice, which is the sort of publication contempt that is the subject of this charge, where it presents a real risk, as opposed to a mere possibility, of interference with the due administration of justice or where it is intended to prejudice the fair hearing of the matter before the court. In Callick, where Mr Callick and Mr Koroma were found not guilty over the publication of cartoons in the newspaper, The Times of Papua New Guinea, Justice McDermott highlighted that it would be contempt of the court to publish material which prejudges issues or is likely to cause public prejudgment of the issue that is the subject of pending litigation.

12. In Maino v Avei, Sir Charles Maino held a press conference over an election petition trial in which he was a party and used comments like: “He does not want to prejudice the constitutional rights of persons who are parties to election petition matters but he does not want to see those rights abused by lawyers. I hope the lawyers are not appealing just for the sake for appealing in order to make more money out of the Electoral Commission. What is my brother Moi afraid of now? Is he afraid of the re-count?” The presiding judge, Justice Woods, found Sir Charles not guilty as the comments made by the contemnor were not calculated to prejudice any of the requirements for the fair and due administration of justice.

13. I uphold Mr Cooke’s submission that the comments attributed to Mr Henao in the newspaper can be regarded essentially as statements of fact. They were statements of a lawyer about the issues he was going to put before the Supreme Court. I see nothing obnoxious in the nature of those statements. It could even be argued that it is in the public interest for lawyers to make statements of this nature from the point of view of educating the public on the sort of issues that will be prosecuted in the court.

14. I also agree with Mr Cooke’s argument that, as Mr Henao was making comments on issues that would go not before a jury or the Village Court or the District Court but to the Supreme Court of Papua New Guinea consisting of a number of independently minded Judges, the prospect of comments of this nature having any influence on those Judges must be regarded as remote. There was no serious risk of prejudice to the interests of justice or the interests of any of the parties. I see no risk that these statements were likely in any way to bring the court or any of the Judges into disrepute or to lower the authority of the court or to interfere with the due administration of justice or scandalise the court. Nor would they impair public confidence in the impartial administration of justice. These are the sorts of things that must be proven beyond reasonable doubt to exist. These risks must be real in order for a person to be found guilty of contempt. I find that the tests set out in Rooney and Callick have not been satisfied.

15. At the end of the day the prosecution has a heavy onus of proving beyond reasonable doubt that the elements of contempt have been satisfied. So, if I had found that the statements were accurately reported, I would have still found the contemnor not guilty.

ORDER

(1) The contemnor, Loani Ravu Henao, is found not guilty of contempt of court.

(2) No order is made as to costs. If there is any application for costs, it shall be made by notice of motion and filed and served within the next 14 days, the hearing of which shall take place in the week commencing Monday 6 January 2014.

Verdict accordingly.
_____________________________________________________________
Kuman Lawyers: Lawyers for the Respondents
Henaos Lawyers: Lawyers for the Contemnor