Attorney General v Kenilorea & Solomon Star Ltd [1984] SBHC 4; [1984] SILR 61 (26 January 1984)

[1984] SILR 61

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal No.125

ATTORNEY GENERAL

-v-

KENILOREA & SOLOMON STAR LTD

High Court of Solomon Islands
(Daly CJ)
Civil Case No. 125 of 1983

25 January 1984 at Honiara
Judgment 26 January 1984

Contempt of court - standard of proof and other considerations to be applied - whether publication risking prejudice of a real issue before the court - whether law to be considered as at time of publication - effect of subsequent deeming provision - effect of Ss 59(3) and 10(4) of the Constitution.

Facts:

The second respondent company published in their issue of 18 November 1983 a letter from the first respondent who was at that time Leader of the Opposition. The letter claimed that the Government had purported to enforce orders under the Price Control Act 1982 without having laid them before Parliament as required by S. 10(3) of the 1982 Act, and raised the question of compensation. When the letter was published there was an action pending before the High Court in which the plaintiffs claimed that those orders were unlawful for the reason given in the letter, and also because the 1982 Act had not been brought into force in the way prescribed by law. The Attorney General (who was the defendant in the pending action) had before the letter was published admitted in it that the 1982 Act had not been brought into force, but maintained that S. 10(3) had been complied with. On 12 December 1983 the Price Control (Retrospective Operation and Validation) Act came into force (see now Kenilorea -v- Attorney-General [1984] SILR (CA)). The 1983 Act provided that the 1982 Act was to be deemed to have been in force at the time the letter was published.

The Attorney-General moved to commit both respondents for contempt on the ground that publication of the letter caused real risk of prejudice to the administration of justice in the pending action.

Held:

1. The standard of proof in criminal contempt is proof beyond reasonable doubt.

2 In deciding whether the respondents were guilty of criminal contempt, the law was to be considered as it in fact stood at the time of publication (see S. 10(4) of the Constitution).

3. At the time of publication the 1982 Act was not in force (see s. 59(3) of the Constitution).

4. So the question of compliance with S. 10(3) of the 1982 Act was not a real issue before the Court in the pending action, and raising it in the letter could not amount to criminal contempt.

5. In the circumstances of the case, the terms in which the question of compensation was raised in the letter were not sufficiently particular to cause any real risk of prejudice in the pending action.

Motion dismissed.

Cases considered:

Attorney-General -v- Times Newspaper [1973] All ER 54 (HC)
Attorney-General -v- S.I.B.C. [1980-1981] SILR 1

Francis Mwanesalua for the Attorney-General
Kenneth Brown, Public Solicitor, for the first respondent
Andrew Radclyffe for the second respondent

Daly CJ: On 18th November, 1983 a letter from Sir Peter Kenilorea, KBE PC MP (“the First Respondent”) was published in the newspaper, the Solomon Star owned by the Second Respondent. The letter reads as follows:-

“Price Control

Sir, The Office of the Leader of Opposition strongly requests the Government to let the public and all affected business enterprises know that it has been applying the Price Control Act 1982 illegally.

It is the OLO’s understanding as provided under section 10 subsection (3) of the Act, that no order to enforce this Act shall have effect unless it was laid before Parliament.

Since Parliament has not yet convened, the orders brought into force in the meantime by the Minister in consultation with the Price Control Advisory Committee were unlawful and therefore illegal.

It is hoped that loss of business because of this illegal practices would be entitled to due compensation from the Government.”

On 30th November 1983 the Attorney-General (“the Applicant”) sought, and was granted, leave to move to commit the Respondents for contempt of court in relation to the publication of that letter. At this stage the Attorney-General by counsel having moved to commit for contempt must consider whether or not that letter does or does not constitute contempt of court.

Before I turn to the particular circumstances which are said to render the publication of the letter contempt of court, let me say something generally about a case such as this and contempt of court.

First the nature of the contempt in this case is said to be a publication of matter tending to prejudice the proper administration of justice in civil proceedings before the High Court. I am asked to bear in mind section 12 of the Constitution which gives protection to freedom of expression. I do, of course, do so. I take note, however, of the express exception contained in paragraph (2) (b) of that section that enables a law to make provision:

“for the purpose of protecting the ... rights and freedoms of other persons (and) maintaining the authority and independence of the courts.”

It is a fundamental right to have one’s grievance litigated before an independent and impartial tribunal and it is to protect the right of all persons who wish to litigate in Solomon Island courts that this court is given powers to punish contempts which infringe that right. If the authority and independence of the courts are allowed to crumble before contemptuous publications then the other rights and freedoms which are embodied in the Constitution may well crumble with them. Ineffective or unfair courts, courts in which no one has confidence or courts which allow litigants to be deterred by improper means, would render meaningless that proud phrase “the liberty of the subject”. The fact that it is the legal advisor to Government that brings these proceedings claiming that, to some extent, his own position as well as the public interest has been prejudiced gives timely emphasis to the point that equality before the law and fairness and firmness of the legal system are in the interests, not just of the subject, but of the state and its officers as well.

It was suggested from the Bar that our law by virtue of a written constitution is in some respects different to that which is applicable elsewhere. But our Constitution reflects that which has became enshrined in all democracies as a proper limitation to freedom of speech. Lord Reid expressed the law of England as follows in A.G. -v- Times Newspaper (1973) 3 All ER 54 (“the Times Case”) at p. 60:-

“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.”

This approach is to my mind, exactly the same as adopted by our own Constitution. I must add that I also share the views expressed by Lord Cross of Chelsea in that case at p. 83 when he said that it is unfortunate that the offence continues to be known by a name which implies that its essence is an affront to the dignity of the court. The essence of the offence of contempt of court is the protection of the due administration of justice which, as Lord Cross rightly says, “is something which all citizens, whether on the left or the right or in the centre should be anxious to safeguard”.

Second, an allegation of contempt of court is always a serious matter. Such contempt as is here alleged is categorized as criminal contempt and the burden on he who alleges it is to prove his allegations beyond reasonable doubt (see Halsbury’s Laws 4th Edition Volume 9 Contempt at para 96). This Court, sensitive to its authority and independence and the public interest, must look hard and long at any submission that a person be punished for any course of conduct said to constitute contempt.

Third, I must say something generally about the type of contempt here alleged as it seems to me, with respect, that the submissions from the Bar concentrated on certain aspects of contempt to the exclusion of other, to my mind, equally important aspects. The contempt here suggested is publication of a letter in which views were expressed about the legality of certain actions. It is said, and this is a matter to which I must return, that the expression of these views amounted to prejudgment of issues which this Court must in due course determine in High Court Civil Case No. 102 of 1983.

Such a publication could, if the facts alleged are made out, have a serious effect on the administration of justice in a number of ways. It is obvious that if a prejudgment is read by members of the tribunal who are to try the case it could prejudice them in favour of, or against, a particular side. It is said, with justification, that there is unlikely to be actual prejudice where, as here, trial is to be by a professional judge. Such a judge is quite capable of putting out of his mind any views expressed out of court by anyone and would undoubtedly do so. A different situation may, of course, obtain where trial is to be with assessors, a jury, or lay magistrates. But that is not an end of this aspect as it is not only what actually occurs but also what a reasonable and fair-minded bystander would consider had happened which is of importance. As Lord Diplock said in the Times Case at page 73 (a passage cited with approval by Davies CJ in A.G. v. S.I.B.C. [1980-1981] SILR 1). “The mischief against which the summary remedy for contempt of court is directed is not merely that justice will not be done but that it will not be manifestly seen to be done.” If a senior member of a community and a holder of a weighty position offers concluded views on the course which should be taken by pending or imminent litigation, there is always the danger of a bystander thinking that even the most independent minded judge would have regard to such views. If the case goes the same way the bystander might be tempted to say “That is what I told you”. That the bystander is completely and utterly wrong makes no difference to the fact that harm has then been done to the authority of the court. This is one danger which we must guard against.

Further, there is the possibility of trial by newspaper or other media. If one letter is written expressing views, human nature being what it is, someone will want to reply or a litigant may feel obliged to do so. Public debate of issues before a court may ensue, leaving the litigants and the court itself to face an empty and thankless task of reaching a result which had already been publicly discussed; possibly by uninformed persons; possibly by persons with motives other than a desire to see justice done. But in any event that discussion will take place in an atmosphere far from the cool, collected and ordered proceedings of a fair and impartial trial. It is obvious that such a situation poses great dangers to the judicial system, not only in deterring would be litigants but also in undermining the authority of the courts. In a word, the judicial function would be usurped by the media and the public contrary to our Constitution and, I venture to suggest, contrary to any well formed conception of a proper way of ordering human affairs.

Lastly, there is the effect which such publications may have on litigants themselves. This, as the House of Lords make clear in the Times Case, is a danger which must be well established before a court will act to obviate it. Temperate and fair criticism, for example, may be permissible despite the fact it is addressed to a litigant. But where it is alleged that the publication consists of a statement that a court must or should decide a certain issue in a certain way, that publication may deter a party from proceeding at all or from proceeding in the way intended if he conceives that public opinion will consider him to be contumacious if he does so. If a litigant’s case is misconceived it is for the courts to tell him so and not public opinion. It is also possible that such a publication may deter witnesses but that is not a likelihood in this case.

All these matters fall for consideration in deciding whether a particular expression of views amounts to a contempt of court. As I have already suggested, it is only if this court is satisfied beyond reasonable doubt that there is a real and substantial risk of prejudice to the administration of justice that this court should find a case of contempt made out. The fact that such result is not intended by a person is not relevant as to whether or not a contempt is made out; although there may be a defence available to such a person under the Administration of Justice Act, 1960.

I should also add that, in my judgment, whether the publication is addressed to matters of law or fact is not, of itself, a fundamental importance. A statement of what the law is in such a way as to appear to pre-empt argument before a court which must consider the very point is as equally a usurpation of the function of the court as to make a statement as to a set of facts in issue before a court. Indeed litigation often involves mixed questions of fact and law and comment upon it may touch on both. It would be difficult, if not impossible, to make a distinction between the two in many cases. What one must do is to apply the appropriate test to decide whether what is said is, in fact, a contempt of course, comments on questions of law are even more resistable by a professional judge but, as I have indicated, that is not the end of the matter. This view accords with the observations of Lord Cross in the Times Case when he said at page 84 b:-

“That is, of course, one of the issues in the pending actions and, again, I agree with my noble and learned friend that we should maintain the rule that any ‘prejudging’ of issues, whether of fact or of law, in pending proceedings - whether civil or criminal - is in principle an interference with the administration of justice although in any particular case the offence may be so trifling that to bring it to the notice of the court would be unjustifiable.”

On the basis of the test I have adumbrated, I now return to the publication in question. It is said to cause real risk of prejudice to the administration of justice in respect of High Court Civil Case No. 102 of 1983: Boral Gas Solomon Limited and Another -v- Attorney-General. In that case a writ was taken out on 10th October 1983. That writ claimed a declaration that as a result, inter alia, of the operation of section 10(3) of the Price Control Act 1982 (“the 1982 Act”) certain orders purporting to be made under the 1982 Act restricting prices, were ultra vires and unlawful. As the Statement of Claim of even date reveals, the claim was that the orders were not laid before Parliament as was required by section 10(3) of the 1982 Act amongst other claims. Damages were also claimed on the basis that the Plaintiffs had suffered loss by acting in compliance with such orders. The Defence, dated 26th October 1983, denied the claim of non-compliance with section 10(3) of the 1982 Act and did not admit the claim for damages. At that stage, then, compliance with section 10(3) of the 1982 Act was clearly in issue. However an amended Statement of Claim was filed on the 1st November 1983 which contained a new paragraph 7A. (Incidentally it would be helpful if amendments could be underlined in red). This alleged that the Price Control Act 1982 had not been brought into force in the way prescribed by law. The amended Defence dated 3rd Nov. 1983 admitted that paragraph 7A was correct, and went on to allege, nevertheless, due compliance with section 10(3) of the 1982 Act. Liability to damages remained in contention. On 4th November 1983 a reply joined issue on these matters.

The ground of the application for committal in this case is contained in paragraph 3 of the Statement in Support of the Application filed on 28th November 1983. This paragraph as amended, claimed in respect of the letter published on 18 November 1983:

“The said letter related to an issue which is and was at all material times before the High Court in Civil Case No. 102 of 1983 which publication tended to prejudice the due administration of justice.”

The point now taken by the Respondents is that the letter did not relate to an issue which was before the Court in Civil Case No. 102 of 1983 as at 18th November 1983. 18th November 1983 is the date specified as that is the date when the conduct said to constitute contempt took place. Turning again to the letter as published it is clear that the thrust of the main part of the letter and its ground for asserting illegality in respect of the orders is non-compliance with section 10 (3) of the 1982 Act. However the final paragraph does address itself to the question of compensation. The first question is, then, was non-compliance with section 10(3) of the 1982 Act an issue before the Court for determination on 18th November 1983 when the letter was published?

The case for the Respondents has the advantage of simplicity. They submit that whatever the state of the actual pleadings, by the admission in the Defence of para 7A of the Amended Statement of Claim, the Defendant admitted that the 1982 Act had not been brought into force. They further submit that a section which had never been brought into force and therefore did not exist as part of the law could not be, as at the 18th November 1983, the basis of an issue in law. Thus at the moment when the First Respondent wrote of the illegality of the orders basing himself on section 10(3) of the 1982 Act he could not be committing an act tending to prejudice the administration of justice as, at that stage, section 10(3) of the 1982 Act would not fall for consideration before the court.

The Applicant, on the other, argues that, first, the issue in relation to section 10(3) of the 1982 Act was still on the pleadings. It remained in paragraph 7 (c) of the Amended Defence. I shall return to this submission

The Applicants second argument was of some complexity. It turned on the effect of the Price Control (Retrospective Operation and Validation) Act 1983 (No. 9 of 1983) (“the 1983 Act”). The 1983 Act came into force on 12th December, 1983. By section 3 of the 1983 Act the Price Control Act 1982 “shall be deemed to have come into force on 26 March 1982”. I understand that the effect of the 1983 Act is in dispute between the parties to Civil Case 102 of 1983 and I say nothing about its general ambit at this stage. I restrict myself to the present submission of the Applicant which, if I understood it aright, is that, as the 1982 Act was deemed to come into force on 26 March 1982 it was therefore in force on 18 November 1983 and any issue as to compliance with section 10(3) of the 1982 Act therefore existed on 18th November 1983. This submission is made despite the admission in the pleadings that the 1982 Act was not brought into force prior to that date. I regret to say I find this second submission untenable in logic and in law. The acts of the Respondents must be adjudged according to the circumstances which existed at the moment when they conducted themselves in the way alleged. This moment is clear the 18th November 1983. At that moment the 1983 Act did not exist as part of our law. Therefore at that moment neither did the Price Control Act 1982 exist in law. To say that because the 1982 Act is later deemed to have been in existence may, and this is a point on which I express no views at present, have certain results in law. But it cannot change actual factual circumstances for the same reasons that a law which deems all geese to be swans cannot change the anatomy of a single goose.

In law the submission is also unsuccessful because of the terms of the Constitution. Section 59(3) reads:-

“59(3) No law shall come into operation until it has been published in the Gazette but Parliament may postpone the coming into operation of any such law and may make law, subject to section 10(4) of this Constitution, with retrospective effect.”

Turning to section 10(4) that reads:-

“10(4). No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.”

As I have already said, the allegation in this case concerns criminal contempt of court and, whilst not-exactly equatable with a criminal offence arising from, for example, the Penal Code, the same standards as apply to such a criminal offence must be applicable to a criminal contempt brought before the court. Thus, if I am satisfied that, at the time of the conduct alleged, the circumstances were such that no criminal contempt was committed, it would be wrong to give the retrospective effect of an Act such a meaning as to enable it to convert, at a later stage, that conduct into a criminal act of contempt. In this case, then, if the conduct did not constitute criminal contempt on 18th November 1983, no subsequent Act of Parliament can render the Respondents guilty of the offences in relation to that conduct. To hold otherwise would be to disregard section 10(4) of the Constitution.

The first submission of the Applicant that the issue of compliance with section 10(3) of the 1982 Act remained on the pleadings in Civil Case 102 of 1983, and continues to do so until formally abandoned, has some force however. But once again I must remind myself that these are quasi-criminal proceedings in which it is the burden of the Applicant to make me sure that there is a real risk that the administration of justice is prejudiced by the conduct of the Respondents. On that basis I do not consider I should approach this issue merely by looking at what is on the face of the pleadings. I must realistically examine what, on the 18th November 1983, were the issues of substance likely to fall for decision by the Court when it came to hear Civil Case 102 of 1983. If an issue was an issue on paper only and was not a live issue between the parties, comment upon it, even in objectionable terms, could not constitute contempt as it is only trial of the issues which the court must in due course consider which can be prejudiced by such comment. Looking at the situation on the 18th November 1983 (once again I stress that date and offer no comment on the operation of the 1983 Act which became law subsequently), I cannot conclude that I am sure that the issue of compliance with section 10(3) of the 1982 Act was a real issue before the Court in Civil Case 102 of 1983. It had been frankly admitted by the Defendant that the 1982 Act, in law, did not exist and, were a court to consider the case on 19th November 1983, it would inevitably have been bound to disregard the 1982 Act and any issues arising from compliance with it.

I therefore find that in relation to the parts of the letter which deal with compliance with section 10(3) of the 1982 Act the Applicant has failed to make me sure, in the circumstances of this case, that they constitute criminal contempt as prejudging an issue before the court.

The letter also refers to compensation in the last paragraph which I read again:-

“It is hoped that loss of business because of this illegal practices would be entitled to due compensation from the Government.”

There is no dispute that on the 18th November 1983 there was a very live issue between the parties in Civil Case 102 of 1983 as to liability of the Defendant to pay compensation in relation to acts done as a result of price control orders. Clearly this part of the letter addresses itself to an issue before the court. I must then consider whether I am sure that this paragraph causes a real risk of prejudice to the administration of justice. The Applicant would argue that it tends to create the dangers to which I have earlier adverted in that first, a fairminded bystander might conclude that a court would have regard to the views of the eminent writer; second, that the comment gives rise to possible trial by newspaper thus usurping the function of the court and third, that the Defendant is deterred from pursuing his Defence in that he is urged to pay compensation. But, again bearing in mind the heavy burden on the Applicant, I must consider this part of the letter realistically. It must, of course, be read in context. No mention is made, as counsel for the Second Respondent observes, of a particular case. Trial of the action will be by a High Court judge sitting without assessors. The Defendant is the Attorney-General who is, no doubt, more capable of resisting pressure than, say, a private individual. Looking at the paragraph itself the words “It is hoped ....” place the paragraph more in the category of urging a result desirable on general principle rather than expressing a concluded view as to a particular result on particular facts. Comparison with the previous paragraph which offers a positive conclusion on a matter of law (although one not in issue) makes this more apparent. General and temperate discussions of principles and practices of law is not, of itself, a proper foundation of criminal contempt. Such a discussion is not only permissible but also desirable. Courts would be denying their own best interests if they sought to discourage such discussion. It is only when there is the descent to the particular which adversely affects trial of a pending or imminent case that a courts will in these circumstances contemplated exercise of it, extensive powers in relation to contempt.

In my judgment, the terms of the last paragraph of the letter are not an objectionable descent to the particular in such a manner as to satisfy me that it should be condemned as contempt of court as causing a real risk of prejudice to the administration of justice in the trial of Civil Case 102 of 1983. I therefore find that in respect of this paragraph too a case has not been made out to the appropriate standard by the Applicant.

I should observe, however, with all respect to the First, Respondent and Second Respondent that it seems to me that publication of this letter was ill-judged. For anyone, and particularly an eminent and distinguished politician, to express prejudgments on issues of law in the public prints in relation to matters where there is a real likelihood of litigation taking place, albeit when there is ignorance of actual litigation pending, is, if I might suggest it, unwise. Real issues of law which are either pending or imminent should be left to the courts where they can be argued properly and decided upon by those vested with that task by the Constitution.

In this case the applications for committal fail and must be dismissed.

Motion dismissed.

Costs (After submission). In view of the observations I make at the end of my judgment this is a case in which I shall leave the parties to bear their own costs.

No order as to costs.