Public Prosecutor v Nahau Rooney (No 2)

• Jurisdiction: Papua New Guinea
• Judge: Raine DCJ, Saldanha J, Kearney J, Wilson J, Greville–Smith J
• Judgment Date: 11 September 1979
• Citation: [1979] PNGLR 448
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC163

Supreme Court: Raine DCJ, Saldanha J, Kearney J, Wilson J, Greville–Smith J

Judgment Delivered: 11 September 1979

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 Infra p. 502.1 of Constitution — Contempt established — Constitution of the Independent State of Papua New Guinea, ss. 23 Infra pp. 502, 503.2, 37 Infra p. 492.3, 46 Infra p. 503.4, 160 Infra p. 503.5, 99 Infra p. 492.6 and 157 Infra p. 502.7.

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 Infra pp. 502, 503.8, 37 Infra p. 492.9, 46 Infra p. 503.10, 99 Infra p. 492.11, 157 Infra p. 502.12 and 160 Infra p. 503.13.

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 Infra p. 502.14 and 99 Infra p. 492.15.

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

(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.

(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.

(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.

(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.

(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.

(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.

(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.

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