Ex Parte Rowan Sidney Callick and Joe Koroma [1985] PNGLR 67

• Jurisdiction: Papua New Guinea
• Judge: McDermott J
• Judgment Date: 16 November 1984
• Docket Number: Supreme Court Reference No 3 of 1984
• Citation: [1985] PNGLR 67
• Court: Supreme Court
• Year: 1985
• Judgement Number: SC288

Full Title: Supreme Court Reference No 3 of 1984; Ex Parte Rowan Sidney Callick and Joe Koroma [1985] PNGLR 67

Supreme Court: McDermott J

Judgment Delivered: 16 November 1984; 1 or 3 April 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

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

Waigani

McDermott J

2 November 1984

16 November 1984

1 February 1985

1 April 1985

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:

(a) purported to prejudge the issue before the court;

(b) tended to influence the court; and

(c) tended to call the court into disrepute.

Held

(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.

The Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448, considered.

(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.

(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.

Attorney-General v Times Newspaper Ltd [1974] AC 273, followed.

(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.

Vine Products Ltd v Green [1966] 1 Ch 484 at 498 and Meriden Britannia Co Ltd v Walters (1915) 25 DLR 167 at 168, followed.

(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.

R v Gray [1900] 2 QB 36 at 40 and Ambard v Attorney-General for (Trinidad and Tobago) [1936] AC 322, followed.

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

(a) freedom of expression;

(b) the nature of the material, and the manner and time of publication;

(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;

Ambard v Attorney-General for (Trinidad and Tobago) [1936] AC 322 at 355; Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 at 249; and Meriden Britannia Co Ltd v Walters (1915) 25 DLR 167 at 169, applied.

(7) In the circumstances contempt as charged had not been made out.

Cases Cited

Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322.

Attorney-General v BBC [1981] AC 303.

Attorney-General v Times Newspaper Ltd [1974] AC 273.

Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887.

Badry v Director of Public Prosecutions of Mauritius [1983] 2 WLR 161; [1982] 3 All ER 973.

Balogh v Crown Court at St Albans [1974] 3 WLR 314; 3 All ER 283.

Bread Manufacturers Ltd, Ex parte: Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242.

Hunt v Clarke (1889) 58 LJ QB 490.

McKeown v The Queen (1971) 16 DLR (3rd) 390.

Meriden Britannia Co Ltd v Walters (1915) 25 DLR 167.

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

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

R v Gray [1900] 2 QB 36.

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

Schering Chemicals Ltd v Falkman Ltd [1981] 2 WLR 848; 2 All ER 321.

Vine Products Ltd v Green [1966] 1 Ch 484.

Summons for Contempt

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

Counsel

J Byrne for Secretary for Justice (16 November), E Kariko (1 February)

J Fuller for Contemners (2, 16 November), M Hirst (1 February).

Cur adv vult

16 November 1984

RULING

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. See now SCR No 3 of 1984; Kevin Masive v Iambakey Okuk [1984] PNGLR 390.1 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:

1. THE ISSUE OF THE SUMMONS BY THE COURT

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.

2. AM I ENTITLED TO HEAR THE MATTER?

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...