SC1829

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA. No.92 of 2014

BETWEEN:
TODAGIA KELOLA
First Appellant

AND:
SOUTH PACIFIC POST LIMITED
Second Appellant

AND:
IAN V AUGEREA,
REGISTRAR OF THE NATIONAL COURT
Respondent

Waigani: Kirriwom, J Hartshorn, J & Nablu, J
2019: February 25th
: 24th June

CONTEMPT OF COURT – Civil contempt - Breach of Court Order – Publication of news article contrary to specific order of court - Liability of the journalist who took the pictures and prepared the news article – Liability of the publisher    – Whether disobedience of court order was deliberate on the part of journalist   – Whether the journalist can be held liable for contempt where he did what he could within the ambit of his responsibility   – Whether the employing company of the journalist can be held liable for contempt where no service of the court order was affected on the company and where the journalist is found not to be  liable for contempt – Whether the journalist can be held liable for contempt for the failure of another employee who has not been charged with contempt – Whether reckless or careless disregard is sufficient proof of deliberate disobedience - Proof of guilt beyond reasonable doubt – Appeal against conviction allowed. 

Facts

The appellants were found guilty of contempt of court by disobeying a court order which required frosting of the faces of any photographs taken in the Manus Detention Centre by journalists accompanying the court party. The first appellant, who was the journalist, when he submitted his story had specifically instructed the Night Editor of the second appellant about the nature and requirements of the Court Order, but the Night Editor, in the pressure of meeting deadlines, forgot to implement the order and images of Centre staff were published unfrosted. The second appellant was not served with the Court Order and no proceedings were taken against the Night Editor.

Held

(per Kirriwom J):

1.	The case of Ome Ome Forests Ltd v. Ray Cheong [2002] N2289 was an authoritative judgment on the question of deliberateness of disobedience and on the question of corporate responsibility and the trial judge was wrong not to follow it without giving detailed reason;
2.	The first appellant did everything within his physical power to have the court order implemented and there was no evidence to support the trial judge’s findings that he could have had some supervisory power over the Night Editor;
3.	It was wrong for the trial judge to find that he need not be satisfied of deliberate disobedience, but only carelessness or recklessness to return a verdict of guilty;
4.	The first appellant should not have been found guilty;
5.	As the 2nd appellant was not served with the Court Order, if the conviction against the first appellant is quashed, the conviction against the 2nd appellant must also be quashed as it could only be liable vicariously;
6.	Conviction of both appellants quashed.

Cases Cited:
Papua New Guinea Cases

Ian Augerea v Todagia Kelola & South Pacific Post Ltd (2014) N5582
 Liriope v Usurup [2009] N3572
 R v Gabai Vagi [1973] PNGLR 30
The State v William Norris [1979] PNGLR 605
The State v Yaulipa Bulaim and Four Others [1980] Unreported NC Judgment No. N234
 Vincent Kerry v The State [2012] N4658
David Kuna v Vincent Eralia [2004] N2771
The State v Joseph Viga [2007] N6341
Agiru Aleni v Paul T Tahain [1978] PNGLR 37 
Eliza v Mandina [1971] PNGLR 422
Titi Christian v Rabbie Namaliu (1996) SC1583
The State v Zacchary Gelu, Solicitor-General and Manoburn Earthmoving Ltd (2002) N2322
Ome Ome Forests Ltd v Ray Cheong [2002] N2289
 Hargy Oil Palm Ltd v Ewasse Landowners Association Inc (2013) N5441
Kui Valley Business Group Inc v Kerry Wamugl [2009] N3667
AGC(Pacific) Ltd v Woo International Pty Ltd [1992] PNGLR 100 
Dillingham Corporation of New Guinea Pty. Ltd. v Constantino Alfredo Diaz (1975) P.N.G.L.R. 262
Bishop v. Bishop Bros [1988-89] PNGLR 533
Tutuman Development Ltd v. Growmax (PNG) Ltd (2015) SC1047
Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Limited and Ors (2015) N6101
Geoffrey Vaki v. Matthew Damaru (2016) SC1523.

Overseas cases

Woolmington v DPP [1935] AC 462
 Edwards (Inspector of Taxes) v Bairstow and Another (1956) A.C. 14; 
Instrumatic Ltd. v Suprabrase Ltd (1969) 1 W.L.R 519
Weaver v Samuel [1971] SASR 116
Giorganni v R [1985] 58 ALR 641
R v Coney and Others (1881-1882) 8 QBD 534
 R v Russell [1933] VLR 59
 Director of Fair Trading v Pioneer Concrete (UK) Ltd (On appeal from In re Supply of Ready Mixed Concrete No.2)(1995) 1 A.C. 456                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Foss v Harbottle (1843) 2 Hare 461, Ch 12 LJ 319.
H L Bolton (Engineering) Co Ltd v T J Graham and Sons Ltd [1956] 3 All ER 624
             
Text

Anthony Arlidge & David Eady, The Law of Contempt, 1982, Sweet & Maxwell, W. Green & Son

Counsel:

Ian Molloy with Derek Wood, for the First and Second Appellants
William Hagahuno, for the Respondent

Absence of Judge

In the course of this appeal Nablu J. was unable to exercise her functions as a Judge. After being given the opportunity to do so, none of the parties, pursuant to s. 3(2) Supreme Court Act, informed that they did not agree to the remaining Judges continuing to hear the appeal and to give judgment. The judgment of the Court was given by Kirriwom J. and Hartshorn J., the remaining Judges, pursuant to s. 3(1)(b) Supreme Court Act.

DECISION

24th June, 2019

1.	KIRRIWOM J: This is an appeal from the decision of the National Court of 1 May 2014 where the First Appellant (a journalist) and Second Appellant (the publisher of Post Courier daily newspaper except weekends), who were each found guilty of contempt of Court for disobedience of a court order following a trial and fined K2500 and K50,000 respectively.  The appeal is against both their conviction and sentence.

Background Facts

2.	The first appellant is a journalist employed with the Post Courier, a daily newspaper published nationwide except weekends and public holidays. The second appellant, South Pacific Post Limited, is the publisher of Post Courier newspaper. The first appellant was a member of the court party covering a National Court hearing into human rights applications by the transferees detained at Manus Island Processing Centre on 21 March 2014, on the invitation of the presiding judge, hearing a human rights abuse case at Lorengau that conducted a site visit of the Centre where the applicants were detained.

3.	Before the court party left for the Centre, the judge made an order allowing five media personnel, including the first appellant, to be part of the court party and permitted them to take photographs but subject to one relevant condition: “all images published must be frosted or otherwise published in a way that preserves the identity of the transferees and staff at the Centre.”

4.	On 24 March 2014 a photograph appeared on page 3 of the Post Courier newspaper with an article written by the first appellant in which the transferees’ faces were not frosted and their identities were not preserved, according to the Judge. As a consequence, at the direction of the Court, the Registrar of the National Court (the Respondent) commenced contempt proceedings against the appellants on 26 March 2014.
5.	The statements of charge as set out in the succeeding paragraphs were filed on 26th March 2014 and served on the appellants. On 9th April, 2014 the appellants filed their defence to the charges. 

6.	The charge against the first appellant was worded in these terms:

“You, whilst being the Journalist and News Reporter for the Post Courier newspaper, and whilst being aware of the Court Order restricting the publication of un-frosted images of Transferees held at the Regional Processing Centre in Manus Province as well as staff of the Processing Centre, did publish and or facilitated the publishing at page 3 under the caption “Freedom Please” in the Post Courier Newspaper edition of the 24th March 2014 of an un-frosted image of the face of a member of the staff of Regional Processing Centre, thereby enabling the identification of that person contrary to the Orders of the National Court of 21st March 2013 given in the matter HR01 No. 1 of 2014.
That at all material times, and being a member of the Court Party, you were aware of the Court Order restricting such publication which was in the following terms;

“All images of persons published must be frosted or otherwise published in a way that preserves the identity of Transferees and staff of the Centre.”

The reporting, publication and or facilitation of the publication of the un-frosted image of the staff of the Centre amounted to breach of the Court Order of the 21st March 2014 as well as presented a real risk of interference with due administration of justice and consequently amounts to contempt of Court.”

7.	And the charge against the second appellant read:

“You, whilst being aware of the Court Order restricting the publication of un-frosted images of Transferees held at the Regional Processing Centre in Manus Province as well as staff of the Processing Centre, did publish and or facilitated the publishing at page 3 under the caption “Freedom Please” in the Post Courier Newspaper edition of the 24th March 2014 of an un-frosted image of the face of a member of the staff of Regional Processing Centre, thereby enabling the identification of that person contrary to the Orders of the National Court of 21st March 2013 given in the matter HR01 No. 1 of 2014.
That at all material time, you were aware of the Court Order restricting such publication which was in the following terms;

 “All images of person published must be frosted or otherwise published in a way that preserves the identity of Transferees and staff of the Centre.”

The reporting, publication or facilitation of the publication of the un-frosted image of the staff of the Centre amounted to breach of the Court Order of the 21st March 2014 as well as presented a real risk of interference with due administration of justice and consequently amounts to contempt of Court.”

8.	The hearing of the charges was held on 15th April 2014 where the Respondent relied on one affidavit of Samuel Ikiso, the Deputy Registrar, National Court. That Affidavit, apart from deposing to the breach of the relevant court order in the publication complained of, also contained some hearsay and inadmissible matters which the trial judge ordered removed from evidence following successful objections by the appellants and which were removed. Otherwise the evidence basically was about the publication on 24th March 2014 edition of Post Courier contrary to the specific order of the court made on 21st March 2014. None of this evidence was denied although the defendants provided explanations.

9.	The appellants relied on four affidavits deposed to by Todogia Kelola (first appellant), Rajeev Sharma (second appellant’s chief financial officer and company secretary), Lawrence Fong (editor employed by the second appellant) and Alexander Rheeney (editor in chief employed by the second appellant).

10.	At the trial no objection was taken to any of these affidavits and no cross-examination of any of the deponents was conducted, which in our view was critical to the way evidence in the entire case unfolded. The trial judge accepted all the evidence deposed to in the affidavits of the witnesses filed in the appellants case. 

11.	The evidence on behalf of the first appellant can be summarized as follows. He was the journalist employed by the Post Courier who covered the court proceedings in Manus involving the asylum seekers human rights applications on 21 March 2014. On his return to Port Moresby on Sunday 23 March 2014, he compiled the news and supplied the photographs he took at the scene to accompany his news article for publication to the night editor on duty, Lawrence Fong. He advised Fong to frost the images of the photos before publication and twice stressed to him that this was the order of the court. Lawrence Fong agreed. He therefore left the newsroom, there was nothing further for him to do. The rest was now in the hands of the night editor and the committee responsible for publication of news. When the publication appeared the following morning, the images in the photos that accompanied the article he wrote were not frosted. He was disappointed and confronted the editor in chief and complained about the breach of court order. Lawrence Fong admitted his error. He said it was a mistake on his part. He said while trying to keep up with deadlines as he was running behind schedules, he forgot to frost the images when he submitted the news with the photos for publication. Lawrence Fong apologized to the court for his failure. He said he had no intention to disobey the court order. It was an oversight on his part due to the pressure he was under that night to meet certain deadlines.

12.	The second appellant’s evidence was that the publication of the unfrosted images contrary to the orders of the court was not deliberate but a mistake on the part of the night editor and apologized by letter to the court. It also took steps to correct the mistake by publishing another news article of the same subject with frosted images two days after on 26 March 2014. It also pointed out that at the time the news article with the unfrosted images went to print, there was no written order from the court as none was served on the second appellant although the verbal order was conveyed to the night editor by the first appellant and they, the first appellant and the night editor, were the only ones who knew about the court order. 

13.	The trial judge accepted all the evidence of the first appellant and after summarizing the evidence of all the witnesses on behalf of the defendants stated this in his judgment:

“The plaintiff takes no issue with any of that evidence.  And that is a sensible approach to take as the evidence is uncontroverted.  It appears to be a reasonable account of what transpired.  I accept the evidence and make the following findings of fact:  The first defendant instructed the night editor, Mr. Fong, on two occasions to ensure that the images of transferees in the page 3 photo were frosted or obscured so that the identity of the transferees would be preserved.  The first defendant explained to Mr. Fong why it was important to do that.  It was because of a court order.
Mr. Fong reassured the first defendant that his instructions would be adhered to.  After the first defendant left the newsroom, Mr. Fong completely forgot about what he had been told by the first defendant and facilitated publication of the page 3 photo without any images being frosted.  The first defendant and Mr. Fong were the only persons within the Post Courier or South Pacific Post Limited who, prior to publication of the page 3 photo, knew about the court order of 21 March 2014.  Those are the findings of fact.”

14.	His Honour found the first appellant guilty of contempt on the basis that (1) he did not do enough to prevent the breach of the order and (2) he facilitated the publication of the unfrosted images of transferees. 

15.	His Honour then concluded that there was deliberate disobedience of the court order by the first appellant and Lawrence Fong, both employees of the second appellant, who, by their acts or omissions, bind the second appellant. The following passages in the judgment show the manner in which the element of deliberateness of the breach was determined:

“That leaves the question whether there was a deliberate failure to comply.  I repeat that I accept the defendant’s evidence and find that the first defendant understood the order and intended to comply with it and made a genuine but unsuccessful attempt to comply with it.
Mr. Neil submitted relying on the National Court decision of Justice Kandakasi in the case of Ome Ome Forest Limited v Cheong in 2002, that it is essential for the plaintiff to prove that the defendant intended to disobey or flout the order of the court.  There must be fault or misconduct proven against the defendant.  It must be willful disobedience.  The law of contempt is not intended to criminalize conduct that is casual, accidental or unintentional.
Mr. Neil submitted that in the case of the first defendant, he clearly did not intend to flout the order.  He understood the importance of the order made a genuine attempt to see that it was complied with.  He therefore cannot be guilty of contempt.  Mr. Neil submitted that the second defendant did not form any intention of disobeying the order as none of its directors or officers knew about the order; and only two of its employees knew about the order.
Mr Hagahuno for the plaintiff submitted that neither defendant should be excused from responsibility by shifting the blame to Mr. Fong.  Both defendants should be convicted of contempt.  If the first defendant is found not guilty, the second defendant should nonetheless be convicted as the court’s order was disobeyed and this was because of the actions or omissions of its employees for which the second defendant must be responsible.
My determination of this issue is as follows:  I do not accept that what has to be proven in order to establish the deliberateness of the disobedience is a conscious intention on the part of the defendant to disobey the court’s order.  Reckless or careless disregard to the requirements of a court order is in my view sufficient.  I acknowledge that in the Ome Ome case, Justice Kandakasi stressed the importance of proving a deliberate intention to disobey.  I am not bound by that approach and if that is what his Honor was actually deciding, I respectfully decline to follow that approach.  I agree that if by pure accident a court order were disobeyed, the deliberateness element would not be complied with.  But where it is with the physical power of the defendant to comply, and insufficient steps are taken to comply and it is not a case of pure accident, that is sufficient.  I reiterate that it was within the physical power of the first defendant to ensure that the order was complied with.  He failed to take all reasonable steps to prevent publication of unfrosted images of transferees.  He made the conscious decision to leave the newsroom and leave the matter in the hands of Mr. Fong.  That was a big mistake.  He left the matter in the hands of someone who was under a lot of pressure and who proved incapable of remembering what had to be done.
I agree with Mr Hagahuno that the first defendant cannot use Mr. Fong as the fall guy.  Mr. Fong appears willing to accept all the blame.  He can afford to do that as he is not being charged.  But his readiness to accept the blame does not provide the first defendant with a defense.  I find it proven that by his deliberate failure to do what was necessary, the first defendant failed to comply with the order.  He is accordingly guilty of contempt as charged. 
The second defendant cannot escape criminal responsibility by saying that its directors and others officers did not know of the order.  That is irrelevant.
Two of its employees knew of the order and what the order required.  The second defendant is bound by their conduct including their negligent acts or omissions.  It must also be regarded as having deliberately failed to comply with the order.  The second defendant is also guilty of contempt as charged.”

16.	Against these findings and the final determination, the appellants appealed against both their convictions and sentences.  

Grounds of Appeal

17.	The appellants’ grounds of appeal are quite detailed alleging errors of law and errors of mixed fact and law running into three or four pages of A4 paper which, in our view, are sufficiently summarized under these broad topics or categories:

1.	Convictions of both appellants are unsafe and unsatisfactory as they are against the evidence and weight of the evidence. In other words, on the evidence before him, the trial judge could not have been satisfied beyond reasonable doubt of the guilt of both appellants.

2.	Convictions of both appellants are contrary to law as there was no evidence of deliberate and willful disobedience of the court order to frost the images before publication on the part of the first appellant to hold the second appellant vicariously liable.

3.	Convictions of both appellants are wrong in law in that there was no intention to disobey the court order by the first appellant and he did not disobey the court order.

4.	Conviction of the first appellant is wrong in law in that he was found guilty of contempt for the failure of a third party, Lawrence Fong, over whom he had no authority.

5.	Conviction of the second appellant is wrong in law in that it cannot be independently found liable for contempt as there was no service of the court order on the company. In the alternative, the second appellant cannot be held liable for contempt independently of the first appellant if the first appellant is found not guilty of contempt because he was not responsible for the breach of the court order.

6.	Sentences of fines imposed are manifestly excessive.

Issues on appeal

18.	The issues to be determined are:

1.	Whether the trial judge erred in not giving appropriate weight and credence to the evidence presented by the first appellant and the defence witnesses when there was no rebuttal evidence contrary to the explanations given by the First appellant and defence witnesses?

2.	Whether the trial judge erred in drawing adverse inferences which were mere conjectures, against the first appellant where there was not a single piece of evidence from which such adverse inferences could be drawn against the first appellant?

3.	Whether the trial judge erred in holding that he did not need to be satisfied of deliberate disobedience to return a verdict of guilty, suffice that there was carelessness and recklessness by the first appellant?

4.	Whether the trial judge erred in holding the second appellant guilty of contempt when there was no proof of service of the order on the company?

Evidence and Proof Beyond Reasonable Doubt

19.	 A charge of contempt of court carries the same onus and burden of proof similar to that of an offence under the criminal law. The standard is that of proof beyond reasonable doubt. While contempt of court on its face value is one of strict liability offence, before the court can convict a contemnor of contempt, guilt must be proved beyond reasonable doubt. 

20.	It is established in case law, and articulated by the trial judge in this case and other cases of contempt his Honour dealt with previously that there are three elements in a case of, to use his honor’s words, disobedience contempt. The trial judge must be satisfied beyond reasonable doubt in respect of each of the three elements. They are:

a.	Was the order clear in that there was no ambiguity in its terms?
b.	Was the order properly served on the contemnor(s)?
c.	Was there deliberate failure to comply with or to disobey the order?

21.	In this case his Honour found that he was satisfied beyond reasonable doubt of all three elements of the offence of contempt made out by the plaintiff against both appellants and found them guilty of contempt. It is contended by the appellants that on the evidence before the court, his Honour could not have been satisfied beyond reasonable doubt of the guilt of the appellants, the verdicts are a slap in the face of the excusatory and exculpatory evidence presented by the defence that was not rebutted or contradicted by the respondent who had the onus of proof to satisfy the court to the required standard. 

22.	After perusing the evidence before his Honour, I have difficulty in accepting his Honour’s conclusion when he did not have any evidence on which he could rely and disregarded or rejected the explanation given by the first appellant, supported by Lawrence Fong, the night editor. His Honour was required to determine the issue before him judicially in that his Honour’s own knowledge or perception or imagination of a perfect or ideal situation cannot be allowed to clog his mind to determine the case based on facts that are only established by evidence, the evidence which his Honour did not have to reach the conclusion that the first appellant could have done more instead of simply leaving the matter with Lawrence Fong and departing the newsroom.

23.	This conclusion reached by his Honour in finding against the first appellant is clearly in breach of the rule of evidence on inferences to be drawn from proved facts. There were no established facts on whether the first appellant could have done more than what he did. His Honour simply assumed this adverse finding against the first appellant from his Honour’s own view or belief or perceived knowledge of what a prudent and responsible journalist’s job must entail. But he needed evidence to support such supposition. This erroneous conclusion is an error of law. As the then Deputy Chief Justice Prentice, in the case of Dillingham Corporation of New Guinea Pty. Ltd. v Constantino Alfredo Diaz (1975) P.N.G.L.R. 262 said at p.270:

“Where primary facts are found (which cannot be challenged on appeal except by leave of the court) the question of law is what is the proper conclusion to be drawn from those facts.  It has been shown in decided cases that where inferences or conclusions are drawn from these primary facts which cannot reasonably be drawn, then this is an error of law.  See Edwards (Inspector of Taxes) v Bairstow and Another (1956) A.C. 1413; Instrumatic Ltd. v Suprabrase Ltd (1969) 1 W.L.R 51914.  I cannot see anything in the circumstances of this country that would render these principles inapplicable.  I adopt them as part of the underlying law (Schedule 2:2 of the Constitution).”

24.	In fact, this evidence was easily available to the plaintiff but the prosecution case lacked the drive and intensity to elicit it (the evidence) in the trial. If there was cross examination of the first appellant and Lawrence Fong on their affidavits, such question as whether the first appellant could have done more would have been crystallized. The failure to do so is no fault of the first appellant but the fault of the respondent. In the absence of such evidence, given the way his Honour was thinking, a reasonable tribunal of fact would have had grave doubts in returning a guilty verdict. 

25.	And the law is well established in this jurisdiction as elsewhere in the common law world that if there is a scintilla of doubt, the benefit of that doubt must be given to the accused. It is good to be reminded of the onus of proof always remains with the prosecution as per the words of Bray CJ in Weaver v Samuel [1971] SASR 116 where he said:

“..The defendant must be given the benefit of any reasonable doubt on matters of penalty, as well as on matters of guilt or innocence, in the absence of any statutory provision to the contrary… Any dispute as to anything beyond this must be resolved on ordinary legal principles, including the presumption of innocence.” 

26.	This principle was adopted and applied in many pre and post independent cases including R v Gabai Vagi , The State v William Norris and The State v Yaulipa Bulaim and Four Others . It goes without saying that where the evidence tendered by the defendants in their defence tilted overwhelmingly against the prosecution, there is little that can be done as far as the court is concerned except to direct an acquittal by giving the benefit of the doubt to the defendant. 

27.	 And the appellants’ case became so much stronger in favour of acquittal even after conviction with the subsequent affidavit of the first appellant deposed to on 21 May 2014 that highlighted his responsibility or duty statement as journalist in a large media organization like Post Courier where he worked. This evidence clearly proved that his Honour’s finding of guilt against the first appellant was contrary to the evidence and the weight of the evidence. By this time, even after conviction, his Honour should have had serious doubts as to the correctness of his conclusion adverse to the first appellant. In a guilty plea situation, when a prisoner raises on allocutus a defence that could exculpate him from criminal culpability or complicity to an offence, that piece of evidence however belatedly it came into the case has the effect of rendering the guilty plea equivocal and the usual practice is that the plea of guilty is rejected and a ‘not guilty’ plea is recorded to give the accused the benefit of a trial. However, if a defence is raised after conviction following a trial following allocutus, which defence was not raised in the trial but is credible on its face value, can the trial judge ignore it and proceed to sentence? A miscarriage of justice can easily result if the new story is not properly investigated and due diligence is not accorded to this new evidence. A mistrial might be the only outcome open.

28.	I am of the view that the evidence in the second affidavit of the first appellant, albeit provided by way of mitigation of penalty, clearly illustrates the demarcation of responsibility in the organisation where the first appellant worked as journalist. What he did initially when he supplied the news article and the photos to Lawrence Fong was in conformity with that demarcated responsibility. It was unfair and quite contrary to this evidence that was easily available for the judge to have first appraised himself before reaching the conclusion he did by holding that ‘the first appellant could have done more’ by not having this evidence before him. Therefore, this ground of appeal as to his finding of guilt against the first appellant must succeed.

Is Reckless or Careless Disregard Proof of Deliberate Disobedience?

29.	Ground 3(b) contends that the first appellant’s failure to comply with the order was not deliberate and as such on the evidence before the court he should have been found not guilty. In his judgment the trial judge said:

“I do not accept that what has to be proven in order to establish the deliberateness of the disobedience is a conscious intention on the part of the defendant to disobey the court order. Reckless or careless disregard to the requirements of a court order is in my view sufficient.”

30.	 If ‘reckless or careless disregard’ was the test his Honour applied to convict the first appellant, then his Honour’s analysis of facts before him was wrong as far as the first appellant’s involvement in the printing of the news was concerned. The first appellant had, according to uncontroverted evidence which his Honour accepted, done what was required and expected of him on his part, and the rest was in the hands of the night editor Lawrence Fong and the editorial committee. As far as his demarcated responsibility is concerned, the failure to comply with the court order was not within his contemplation when the news went to print. It was within the responsibility and oversight of the night editor. He therefore cannot be accused of having had ‘careless or reckless disregard’ of the court order when the matter was already out of his hands. 

31.	On the other hand, the law is clear that “carelessness or recklessness” is not sufficient as held in Giorganni v R [1985] 58 ALR 641 per Gibbs CJ at 642:

“No one maybe convicted of aiding, abetting, counselling or procuring the commission of an offence unless knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Willful blindness is treated as equivalent to knowledge, but neither negligence nor recklessness is sufficient.”

32.	On the evidence before the court, the first appellant is not placed anywhere near a position where he can be said to have aided, abetted, counselled or procured, let alone, facilitated the commission of a crime known as the disobedience of the court order. He was already far removed from that position and any discussion on whether he played any part in the disobedience of the court order on the evidence properly construed, should not have applied to him at all. 

33.	Since contempt of court has criminal characteristics with criminal sanctions attendant upon conviction, the role that the first appellant played in bringing about the resultant breach of the court order is pertinent. We take particular note in the discussion on the law concerning aiders and abettors by Davani J in The State v Joseph Viga where she said:

“160.	There have been many discussions by Judges and in legal texts, on who is an aider and abettor. One case which I found to me most precise on the definition of an aide and abettor is the case of Agiru Aleni v Paul T Tahain [1978] PNGLR 37 by Wilson. J. In that case, Wilson, J referred to Eliza v Mandina [1971] PNGLR 422 at 430 where the court said;
“…what is being looked at for the purpose of the offence….is the nature of the conduct by the individual concerned and not the fact of his engaging in that conduct as part of a group.”
Wilson. J also referred to R v Coney and Others (1881-1882) 8 QBD 534 where Hawkins. J said at pg 557 – 558;
“In my opinion, to constitute an aider and abettor, some active steps must be taken by word, or action, with the intent to instigate the principal or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures or actions intended to signify approval. In the latter case, he aids and abets, in the former, he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commissioning of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, offer cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.”

Another case which Wilson. J referred to is R v Russell [1933] VLR 59 where Cussen AJ at pg 66 said;

“ various words such as ‘aiding’ ‘abetting’ ‘comforting’ ‘concurring’ ‘approbating’ ‘encouraging’ ‘consenting’ ‘assenting’ ‘countenancing’ are to be found in the authorities. A principal in the second degree is sometimes defined as a person present aiding or abetting, but in this context each of these words has, as I have indicated, a wide meaning. A common dictionary meaning of ‘abetting’ is ‘encouraging’ or ‘countenancing’; and this is to be remembered when the words ‘aiding’ or ‘abetting’ alone are used. All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely such commission.”

34.	I am unable to agree with the trial judge that on the evidence before him he could have easily satisfied himself of any active participation by the first appellant of intentionally facilitating the breach of the order.

35.	I also note another passage in the judgment by the trial judge that follows the same erroneous assumption of facts that flows on from his Honour’s earlier conclusion where he said that the first appellant could have done more in the passage below: 

“I acknowledge that in the Ome Ome case, Justice Kandakasi stressed the importance of proving a deliberate intention to disobey.  I am not bound by that approach and if that is what his Honor was actually deciding, I respectfully decline to follow that approach.  I agree that if by pure accident a court order were disobeyed, the deliberateness element would not be complied with.  But where it is with the physical power of the defendant to comply, and insufficient steps are taken to comply and it is not a case of pure accident, that is sufficient.”  

36.	Refusal to follow a case precedent that had earlier determined the same question of law without giving a good reason or an alternative authority offends the doctrine of stare decisis. I note this observation from the Supreme Court in Titi Christian v Rabbie Namaliu (1996) SC1583 where it said:

“Only after the most carefully and respectful consideration of the earlier decision, and after given due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.  The Court would be slow to disturb a decision which applies a principle that had been carefully worked out in a succession of cases, and had been more than once reaffirmed.”

37.	 His Honour acknowledged the importance of the doctrine of stare decisis in several earlier cases including Vincent Kerry v The State [2012] N4658 and David Kuna v Vincent Eralia [2004] N2771. In the first case, a personal injury case, when deciding on assessment of damages arising out of unlawful acts by police when comparing it with past similar cases his Honour said:

“But this is not an unprecedented case, I am obliged by the legal doctrine of judicial precedent (also known as stare decisis, recognized in Schedule 2.8(1) of the Constitution) to have close regard to what has been decided by the National Court in the past cases and attempt to deal with like cases in like manner.”

38.	And in the latter case I note his Honour made the following remarks:

“But consistently with the legal doctrine of judicial precedent, also known as stare decisis, which, per force of Schedule 2.8(1)(b) of the Constitution, applies in Papua New Guinea, I should not depart from an earlier decision unless I am reasonably satisfied that it was wrongly decided or that it interprets the law in a way that is no longer applicable and appropriate to the circumstances of the country. (The State v Zacchary Gelu, Solicitor-General and Manoburn Earthmoving Ltd (2002) N2322, National Court, Kandakasi J.)”

39.	 Cognizant of this need to not depart from an earlier authority that discussed and determined a legal issue on point without justifiable reasons, his Honour simply or flatly refused to follow an authority that in our view extensively addressed and determined the point of law that had not been overruled by a higher authority. The only reason his Honour provided is that it was not an accident. But on the undisputed facts before the court, there could not be an accident on the part of the first appellant if he had already exhausted his part in the process of preparation of news that eventually leads to the ultimate publishing of the news. He was free of any responsibility over the matter and he cannot be accused of not having done enough when the plaintiff tendered no evidence as to how far the first appellant could have gone to ensure that no breach occurred. His Honour paid mere lip service to the doctrine of stare decisis in the present case.

40.	I am of the view that the case of Ome Ome Forests Ltd v Ray Cheong [2002] N2289 was an authoritative judgment not only on the question of deliberateness of disobedience but more so on the question of corporate responsibility in contempt of court cases given that similar case scenario also presented itself in this case. We are of the view that the Ome Ome case could have guided his Honour to reach a decision that was consistent with the evidence and the law, especially in relation to the criminal culpability of the second appellant who is a different personality, being a corporate entity, to that of the first appellant. As we will demonstrate shortly that had there been fair and proper analysis of the evidence, the first appellant should not have been convicted, the case against him should have been dismissed. Once the case against him was dismissed, the case against the second appellant, as we shall demonstrate, should also have been dismissed because there is no evidence that the second appellant was properly served with the court order, nor was it aware of the court order, at the time the publication complained of went to print in contravention of the terms of the court order.

41.	His Honour made further observation in these words:

“I agree that if by pure accident a court order were disobeyed, the deliberateness element would not be complied with.  But where it is with the physical power of the defendant to comply, and insufficient steps are taken to comply and it is not a case of pure accident, that is sufficient.  I reiterate that it was within the physical power of the first defendant to ensure that the order was complied with.  He failed to take all reasonable steps to prevent publication of unfrosted images of transferees.  He made the conscious decision to leave the newsroom and leave the matter in the hands of Mr. Fong.  That was a big mistake.  He left the matter in the hands of someone who was under a lot of pressure and who proved incapable of remembering what had to be done.”

42.	Firstly, the question of accident as far as the first appellant is concerned, is inapplicable to him according to the irrefutable evidence before the court. Besides that there are number of errors in his Honour’s conclusions which also stem from his misconceived or misconstrued view of the facts, so much so that he paid little or no regard to the evidence by the first appellant and other witnesses who deposed on his behalf. The unchallenged fact remains that the first appellant at the material time in his employment with the second appellant, did not hold a position above that of the night editor who had oversight responsibility of ensuring compliance of rules or policies over every other employee’s role in the process or chain of events leading to the publication of the offending news or publication of the news contrary to the court order. There was therefore nothing within his physical power of control to ensure compliance or to take any kind of steps to prevent publication of unfrosted images   when, as far as he was concerned, he did all that he could do within the ambit of his demarcated area of responsibility as a journalist, who collected and supplied the news and conveyed the court order to the night editor. Therefore, there was nothing wrong when he made that conscious decision to leave the newsroom because there was nothing more left for him to do having passed on the responsibility to Mr Fong, who by virtue of the position he held as the editor, was the appropriate person in the line of seniority of staff in the publication chain over whom the first appellant had no authority. His Honour made this erroneous assumption of fact without evidence, and now proven wrong post-conviction in the second affidavit of the first appellant which evidence has not  been rebutted in any way. His Honour’s high expectation of the first appellant, given what we now know from the evidence that ought to have been elicited in cross-examination, is like putting the cart before the horse and flogging the poor animal to move forward when it just cannot with the cart in front.

43.	In my view, his Honour appeared to have held the first appellant responsible for the failure of the night editor who at the time was operating under pressure in trying to meet deadlines. But common-sense prevailing, the first appellant could not have known that Lawrence Fong was likely to forget the court order when under pressure of work and therefore could not have helped him overcome some of that pressure. That is outside his scope of engagement. This is all speculation, not facts based on evidence, but opinionated conclusion. His Honour’s erroneous conclusion is further highlighted in the following passage of his judgment where he said:

“I agree with Mr Hagahuno that the first defendant cannot use Mr. Fong as the fall guy.  Mr. Fong appears willing to accept all the blame.  He can afford to do that as he is not being charged.  But his readiness to accept the blame does not provide the first defendant with a defense.  I find it proven that by his deliberate failure to do what was necessary, the first defendant failed to comply with the order.”

44.	It seems very obvious from this passage in his judgment that his Honour did not believe the first appellant or Lawrence Fong and he had no other evidence apart from the publication that contravened the court order, and yet he felt comfortable to be satisfied beyond reasonable doubt of the guilt of the first appellant because in his mind, the first appellant was using Mr Fong as his “fall guy”  to escape conviction. And Mr Fong, on the other hand, was willing to vouch or stand up for the first appellant and remain untouchable from the law because he was not charged with contempt. It is not the first appellant’s fault that Mr Fong was not facing a charge of contempt as well. In our view his Honour was confused in the way the evidence unfolded in the defence case in favour of the first appellant and the second appellant when on the one hand there was a court order that was disobeyed, and on the other, quite a reasonable explanation was provided on the part of the first appellant capable of exonerating him from contemptuous culpability and there was no one to shoulder the blame. Is this not a problem associated with proper identification of parties to be charged with contempt before the proceedings were instituted?   Who carries that onus? Certainly not the first or second appellant. But from the perspective of adjudication, was this a proper frame of judicial mind to be in for the trial judge faced with a very serious matter such as contempt of court which is criminal in its character? We think not. There was no failure, let alone deliberate failure, on the part of the first appellant. 

45.	It is my view therefore that the trial judge erred in law in holding that he need not have to be satisfied of deliberate disobedience to return a verdict of guilty of contempt, suffice that there was carelessness or recklessness by the first appellant. There is even no evidence of carelessness or recklessness on the part of first appellant, these are figment of the judge’s own imagination to hold the first appellant accountable for the breach of the court order to which his connection had long ceased. Here again is another instance where his Honour paid mere lip service to the requirement to prove deliberate intent or the deliberateness of the disobedience when in his earlier decisions, such as in Liriope v Usurup he maintained the need to prove this element. This ground of appeal must succeed. 

46.	The trial judge found that the first appellant facilitated the breach of the court order and as such he was guilty of contempt. But the question is, how did the first appellant facilitate the breach or disobedience of the court order knowing now as we understand the evidence when he was just a mere journalist whose pertinence and importance in the publication of the news he authored ended when the news was handed over to Lawrence Fong, the Night Editor, one of those responsible with the relevant Committee for publishing the news? To facilitate means to make possible or to enable something to happen.

47.	Knowing now what we know of the responsibility of the journalist in an establishment like that of Post Courier, the breach as nothing to do with the correctness of the news content reported by the first appellant, accuracy of his reporting or reporting of any prohibited item or matter connected with the court proceeding. Anything to do with the correctness of the news he supplied, it is fair to hold him accountable. But the breach complained of here is in respect of the manner in which the images in the photos were published unfrosted contrary to the terms of the court order which was not the responsibility of the first appellant. That responsibility was that of the Night Editor, member of the publishing team to and upon whom he had already divested himself of the responsibility and adequately explained the importance of the court order to frost the images, not just once but twice verbally, which his Honour acknowledged and accepted. His Honour had no other evidence to hold to he contrary.

Vicarious Liability of the Second Appellant for its Employee’s Disobedience

48.	On the question of whether the trial erred in holding the second appellant guilty of contempt when there was no proof of service of the order on the second appellant, we are also of the view that the judge erred because there actually was no service of the order on the second appellant. In our view, for the second appellant to be held liable in contempt independently of the first appellant, there must be clear evidence of service on the second appellant’s responsible officer for it to be held liable as a corporate entity. The only way it can be guilty on the basis of vicarious liability for the acts or omission of its servant or agent, is if the servant or agent is found to be guilty of contempt. See Director General of Fair Trading v Pioneer Concrete (UK) Ltd and Anor. 

49.	That was a case of deliberate disobedience of court issued injunctions by employees of companies. The appellant Director General of Fair Trading obtained injunctions against four companies, including the two Respondents in this appeal engaged in the supply of ready mixed concrete, restraining them from giving effect to, enforcing or purporting to enforce, whether by themselves, their servants, agents or otherwise, certain existing unlawful agreements entered into in contravention of the Restrictive Trade Practices Act 1976. Subsequently, unbeknown to the Respondents, the employees of the two companies, contrary to express instructions and without the knowledge of the Respondent companies, made unlawful arrangement to fix prices and allocate work.  The Director General, upon being made aware, sought to sequestrate the Respondents companies’ property on the ground that they acted in breach of the injunction. 

50.	The Restrictive Practices Court found that whilst the companies had prohibited their employees from acting in breach of the in junctions and had adopted reasonable compliance systems to prevent such breaches, they were vicariously liable for the acts of their employees acting in the course of their employment and were guilty of contempt. This decision was reversed by the Court of Appeal which it held that the employers were not a party to the arrangement because their employees had acted without actual, implied or ostensible authority and contrary to express instructions. However, an appeal by the Director General to the House of Lords was upheld, reversing the decision of the Court of Appeal and that of the Restrictive Practices Court was restored. In the penultimate paragraph of his judgment, the House of Lords held (per Lord Nolan):

“..Given that liability for contempt does not require any direct intention on the part of the employer to disobey the order, there is nothing to prevent an employing company from being found to have disobeyed an order “by” its servant as a result of a deliberate act by the servant on its behalf…The employees of the respondents have, by their deliberate conduct, made their employers liable for disobeying the orders of 14 March 1978 and 29 March 1979. The respondents are therefore guilty of contempt of court.”

51.	The principle enunciated in this case is that an employer can be liable in contempt by the deliberate actions of its employee provided the conduct of the employee is not merely casual or accidental and unintentional.

52.	As there is no evidence of deliberate disobedience of the order by the first appellant, he cannot be held liable for contempt nor can his employer, the second appellant be liable for contempt. The only way the second appellant can be liable for contempt independently of the first appellant is upon tender of sufficient evidence of proof of service of the court order in question on the relevant officer of the second appellant as a corporate entity. The succeeding paragraphs demonstrate where this responsibility falls when it comes to service of court processes.

Liability of the Second Appellant as Separate Corporate Entity
53.	A company does not have a mind of its own being a separate legal personality from its members and shareholders. The mind and eyes of the company are its proper officials voted by its board of directors whose actions or omissions can bind the company. Kandakasi J in Hargy Oil Palm Ltd v Ewasse Landowners Association Inc (2013) N5441 said:

“A company or any other incorporated entity acquires separate personality or life upon incorporation and issuance of a certificate of incorporation from its shareholders or members.. . once incorporated, a company has no mind of its own. Instead, it acts and functions through the minds of its officers, from members of its board of directors at the highest, to managing directors, to general managers and other servants and agents at the lower levels.  Each of this line of officers has certain level of power, authority and duties and responsibilities for and on behalf of a company with the board having the ultimate powers.  Managing directors where there exists such a position or general managers are usually in charge of the day to day running of the company’s businesses, taking their orders or directives and mandates from the board.”

54.	Similar sentiment was expressed by Makail J in Kui Valley Business Group Inc v Kerry Wamugl [2009] N3667:

“It is the directors and managers who represent the mind and will of the company and control what they do.  The state of mind of these managers is the state of mind of the company and is treated by law as such: See HL Bolton (Engineering) Co Ltd. -v- T. J. Graham and Sons Limited [1956] 3 All ER 624.”

55.	This is further illuminated by Sakora AJ in AGC(Pacific) Ltd v Woo International Pty Ltd [1992] PNGLR 100:

“The point is further illustrated by looking closely at one of the essential attributes or characteristics of a company as a corporate entity or body. And this is its capacity to sue and liability to be sued: s 18 (4) Companies Act. When a wrong is done to the company, the company is the proper plaintiff to maintain, in its own name, an action for redress. Members, as such, have generally no standing to sue on behalf of the company. Similarly, if a company commits a wrong or incurs a liability in the course of its operations, it (and not the members or officials) is the proper defendant. This is sometimes referred to as the "proper plaintiff" rule or the rule in Foss v Harbottle (1843) 2 Hare 461, Ch 12 LJ 319. And the wrong obviously is the wrong (liability) committed by the officers and employees of the company. That a company is capable of suing and is liable to be sued in its corporate name is not merely an administrative convenience; it follows logically from the concept of separate legal entity and principles of agency. Thus, civil liability and criminal responsibility of the company arise from a myriad of situations through the acts and omissions of its servants and agents.
But not every act or omission or default can give rise to legal consequences or responsibilities, nor every servant or agent can commit the company or incur liability. It all depends on the circumstances surrounding the act or omission in question, the nature of the act or omission, the relative position of the agent or servant in the hierarchy of the corporation and what they are and are not empowered to do. Thus, putting it another way, not every servant of the company is a "responsible officer"; the mind of some employees is not the mind of the company.
…. Lord Denning likened a company to the human body with "hands" the mere servants and agents who do not represent the mind and will of the company, and with its "brain and nerve centre" who are the directors and managers. It is the directors and managers who represent the directing mind and will of the company and control what they do. The state of mind of these managers is the state of mind of the company and is treated by law as such: H L Bolton (Engineering) Co Ltd v T J Graham and Sons Ltd [1956] 3 All ER 624.”
56.	It is therefore these directing minds that should be made aware in appropriate manner of such an important order as its breach could have far reaching implications such as in this case. Both the General Manager of the appellant company and the Editor in Chief of Post Courier testified in this case by affidavits and denied having any knowledge of the court order but acknowledged that only two of the employees had knowledge of the order, the journalist who covered the story and the Night Editor who was in charge or responsible for the news going to print that night. This fact only became known to them after the breach had occurred. 

57.	It is therefore uncontested and admittedly clear that no service was affected on the second appellant in its own right as a corporate entity. Service was only affected on the first appellant who conveyed the terms of the order to the Night Editor who were the only two within the second appellant’s employ who knew of the existence of the court order imposing publishing terms. Therefore, the second appellant’s liability for contempt is one that is confined to that of vicarious liability and no more.

58.	I do not consider the conviction of the first appellant safe and as such the conviction against the second appellant cannot stand because its conviction is dependent on the conviction of the first appellant. In this case it is not denied that there was no separate service of the court order on the second appellant through its proper officer be it the editor in chief or the general manager or a director of the company. In other words, if the conviction against the first appellant is quashed, the conviction against the second appellant similarly must be quashed.

An observation

59.	On hindsight, I make one observation in passing as guide to future prosecution of contempt of court cases especially those that involve interference with due administration of justice, that a preliminary inquiry or proper investigation must be carried out before charges are pressed against alleged contemnors. This is to ensure that every person who is implicated in the possible breach or disobedience of a court order amounting to contempt must be charged unless excused. Even half way through a hearing if evidence discloses another person who has not been charged, he should also be enjoined in the proceedings so as to achieve the desired outcome and avoid the scenario that was encountered in this case which made apportionment of contemptuous liability difficult because there was glaring evidence that someone else who was not charged with contempt was responsible for the breach. He contributed to the fiasco in this case that no doubt did not make the trial judge’s task any easier. There is no hard and fast rule about procedure.

60.	Text books on Contempt that discuss the history of the law of contempt envisage that there must be certainty, if not proper enquiries are made and parties ascertained before proceedings naming alleged contemnors that can lead to committal or sequestration are filed or commenced against those deserving of being charged, and not by mere witch-hunting. This is because the court’s power to punish for civil contempt are quasi-criminal in nature.

Conclusion

61.	The end result therefore is that I uphold the appeal of both appellants. Both convictions are quashed and fines of K2500.00 and K50,000.00 respectively payable by each appellant must be set aside. 

62.	With the convictions quashed, it is unnecessary to consider the grounds of appeal against severity of sentences. 

63. HARTSHORN J: This is a decision on an appeal from a National Court decision which found each appellant guilty of a charge of contempt of court for breaching a court order, and imposed fines against them.

64. I adopt the facts as they are set out in the draft decision of Kirriwom J. which I have had the opportunity to peruse. I respectfully concur with His Honour’s conclusion and wish only to add a few comments.

First appellant

65. The finding in the National Court against the first appellant was that he, “facilitated the publication of the unfrosted images of transferees enabling disclosure of their identities.” The finding was not that he committed the act of contempt. In the course of his submissions, counsel for the respondent conceded, correctly in my view, that the appeal should be allowed against the first appellant as the evidence before the court did not establish that the first appellant had the necessary intention to breach the relevant court order. 

66. I agree with the submissions of the appellants that the plaintiff failed to establish any act or omission of the first appellant which was done or omitted to be done for the purpose, the intent, of breaching the court order. I am satisfied that the primary judge fell into error to the extent that he found otherwise. Consequently, given this and the concession by the respondent’s counsel, the appeal of the first appellant should be upheld.

Second appellant

67. As to the second appellant, it is not disputed that the second appellant was not served with the relevant court order and there was no evidence that the second appellant was served. That proof that the relevant order was properly served is necessary was observed by the primary judge. 

68. I make reference in this regard to the requirement for a contemnor to be properly served with the order which he later is alleged to have breached: Bishop v. Bishop Bros [1988-89] PNGLR 533; Tutuman Development Ltd v. Growmax (PNG) Ltd (2015) SC1047; Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Limited and Ors (2015) N6101 and Geoffrey Vaki v. Matthew Damaru (2016) SC1523. As there was no evidence of the second appellant being properly served or at all before the National Court, I am satisfied that the appeal of the second appellant should be upheld.

69. Given the above, it is not necessary for me to address the other submissions of counsel.

Orders

70. The orders of the Court are:

a)	The appeal is upheld;
b)	The convictions against both appellants are quashed;
c)	The sentences imposed upon both appellants are set aside;
d)	If any fines have been paid by the appellants, they are to be refunded forthwith.

Ashurst Lawyers: Lawyers for the First and Second Appellants
William Hagahuno Lawyers: Lawyers for the Respondent