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Rooney (No 1), Public Prosecutor v [1979] PNGLR 403 (3 September 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 403 - Public Prosecutor v Nahau Rooney (No 1) 

[1979] PNGLR 403

SC163A

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

NAHAU ROONEY (NO. 1)

Waigani

Raine DCJ Saldanha Kearney Wilson Greville Smith JJ

27-31 August 1979

3 September 1979

CONTEMPT - Contempt sub judice - Supreme Court - Pending proceedings - When proceedings “pending” - Proceedings before National Court - Reference of constitutional matter to Supreme Court - Letter from Minister for Justice to Chief Justice of Supreme Court between date of National Court hearing and actual date of reference to Supreme Court - Letter containing alleged contempt referring to reference in Supreme Court - No case to answer submission - Held proceedings “pending” in Supreme Court.

WORDS AND PHRASES - “Pending” - Pending proceedings - Contempt sub judice - Constitutional reference - When proceedings become pending proceedings in Supreme Court - Constitution of the Independent State of Papua New Guinea, s. 18(2)[dxxxvi]1.

On 3rd July, 1979, one Dr. Ralph Premdas against whom a deportation order had been made, instituted proceedings in the National Court by way of summons seeking a declaratory order that the principles of natural justice guaranteed in the Constitution of the Independent State of Papua New Guinea had been violated and that his rights and freedoms were in need of protection and seeking an injunction restraining the Minister for Foreign Affairs and Trade from deporting him. On 4th July, 1979, the last day before which Dr. Premdas became liable for deportation, Pritchard J., in the Supreme Court, found that there was a genuine argument involving interpretation and/or application of the Constitution which should be referred to the Supreme Court pursuant to s. 18 of the Constitution, granted an interim injunction restraining the Minister for Foreign Affairs and Trade from effecting the deportation before 3rd August, 1979, being the last day of the Supreme Court sittings commencing on 30th July, 1979, subject to the right of the Supreme Court to vary the order in any way it saw fit, and directed that immediate steps be taken to set the matter down for hearing in the Supreme Court.

On 20th July, 1979, Pritchard J. signed a “reference” to the Supreme Court pursuant to s. 18 of the Constitution, setting out factual matters relating to the proceedings before him and six questions relating to the interpretation or application of the Constitution which proceedings were numbered S.C.R. 1 of 1979. (See Premdas v. The Independent State of Papua New Guinea, [1979] P.N.G.L.R. 329.)

On 11th July, 1979, the Minister for Justice The Honourable Mrs. Nahau Rooney, wrote to the Chief Justice of the Supreme Court a letter, copies of which were circulated to about forty-five other people in the community, in which she referred to the “recent case the State v. Dr. R. Premdas” and made other statements. The full text of the letter is set out infra at p. 415.

On 6th August, 1979, the Public Prosecutor instituted proceedings against the Minister for Justice, for contempt (sub judice) of the Supreme Court, the first charge relating to the letter of 11th July, 1979, and alleging that the Minister had attempted to interfere with the due course of justice by causing to be published and circulated (the) letter, upon her letterhead, under her signature, and thereby intended to influence the judges in a case that was pending before the Supreme Court (i.e., S.C.R. 1. of 1979).

On a submission of no case to answer on the ground that at the time the letter was published there were no proceedings pending in the Supreme Court, to which the alleged contempt could relate,

Held

(1)      (Per Raine Dep. C.J., with whom Saldanha J., Wilson J., and Greville Smith J. agreed; Kearney J. dissenting) The finding by the National Court that a constitutional situation had arisen and was arguable, opened or created a pipeline that led in one direction and to one destination only, the Supreme Court; the proceedings were in that pipeline for determination by the Supreme Court as soon as it was constituted, and accordingly at the time the letter containing the allegedly contemptuous material was published there were proceedings “pending” in the Supreme Court.

(Per Wilson J.) Proceedings become “pending” proceedings in the Supreme Court by operation of law as soon as “any question relating to the interpretation or application of any provision of” the Constitution arises and when the court in which it arises is satisfied that the question is not “trivial, vexatious or irrelevant”: The proceedings are “pending” proceedings in the Supreme Court as from the stage when the lower court takes action whether by way of adjournment or otherwise in recognition of that situation.

(2)      (Kearney J. dissenting) There was a case to answer on the charge alleging contempt sub judice.

Trial

These were proceedings in which the Minister for Justice for Papua New Guinea (the Honourable Mrs. Nahau Rooney) was tried on charges of contempt of the Supreme Court, and instituted by notice of motion taken out by the Public Solicitor. There were three charges against the Minister the first of which only is relevant to this report, viz.: an allegation that she attempted to interfere with the due course of justice by causing to be published and circulated a letter upon her letterhead, under her signature, bearing date 11th July, 1979, and addressed to the Honourable the Chief Justice of the Supreme Court, and thereby intended to influence the judges in a case that was pending before the Supreme Court. At the close of the evidence for the Public Prosecutor counsel for the Minister submitted that there was no case to answer on the ground inter alia that at the time the letter was published there were “pending” proceedings in the Supreme Court.

For the final outcome of the trial see Public Prosecutor v. Nahau Rooney (No. 2) [1979] P.N.G.L.R. 448.

Counsel

K. B. Egan and G. Poole, for the Public Prosecutor.

L. J. Priestley, Q.C. with him M. Adams, for the respondent (Minister).

Cur. adv. vult.

3 September 1979

RAINE DCJ: Mr. Priestley of Queen’s Counsel submitted, on the prosecution closing its case, that his client had no case to answer. Firstly he submitted that as a matter of law his client had nothing to answer on the first charge. The basis of his charge is her letter to the Chief Justice of 11th July. Mr. Justice Pritchard’s judgment and order were on 4th July, his written and signed reference under s. 18 of the Constitution of the Independent State of Papua New Guinea was not until 20th July. Hence Mr. Priestley says there were no pending proceedings before the Supreme Court when the letter was written.

Secondly, senior counsel submitted that there was no case to answer on the second and third charges concerning the N.B.C. [National Broadcasting Commission] and Post-Courier publications. He did not put this on a May v. O’Sullivan[dxxxvii]² basis, but on the basis suggested in R. v. Dodd[dxxxviii]³. I will deal with this submission first. See also the judgment of O’Leary A.J. in The State v. Paul Kundi Rape[dxxxix]⁴.

Mr. Priestley really relies on some partial success he had with his cross-examination of the two witnesses involved, Messrs. Auhova as to the second and Bobola as to the third charge. Senior counsel drew certain conclusions from this which he claims makes it legitimate for us to apply R. v. Dodd [dxl]⁵. He submits that there has been raised such doubt as to whether his client intended her remarks to be published that we should dispose of the matter at this stage, and discharge her here and now.

Regardless of the validity or not of the first charge, the defendant’s letter of 11th July, on one reading of it, could be said to support the prosecution case on the second and third charges as going to intent. In my opinion it could be said that Mr. Priestley’s partial successes in cross-examination give him good jury materials, but they should be left to the jury. These no case submissions fail, in my firm opinion.

I turn now to the first charge, or count. Firstly, it is necessary to examine the judgment of Pritchard J., delivered by his Honour on 4th July, before considering the effect of s. 18 of the Constitution. He said, inter alia:

“This request for an injunction restraining the Minister from taking this drastic step is made on two bases.

Firstly it is claimed that the procedures laid down in the Migration Act are in breach of the Constitution, and the applicant is seeking a declaration from the Supreme Court that this is so. Having heard the argument put to me by Mr. Gawi, the applicant’s counsel, I am satisfied that he has put to me an arguable case in this regard. I am satisfied that this claim is no mere sham or pretext but does raise a genuine argument involving the interpretation and/or application of the Constitution which the Supreme Court will be asked to decide.”

When granting the application for an interim injunction at the end of the judgment his Honour said that it would have effect:

“... up to Friday 3rd August next being the last day of the Supreme Court sittings commencing on 30th July next subject of course to the right of the Supreme Court to vary this order in any way it thinks fit. I direct that the applicant take steps immediately to have this matter set down for hearing in the Supreme Court.”

I concede that the language used by his Honour is unclear. Let me assume that the learned judge imagined that some separate application was to be made by Premdas to the Supreme Court on constitutional grounds. If this be the case which I find it hard to accept, for if it was then certainly the judge changed his mind, as he did refer, does it matter a scrap? I ask this rhetorical question because his Honour was of the firm opinion that an arguable constitutional point had been raised before him. It was finally dealt with by a differently constituted Supreme Court this morning. The point raised failed, but it was certainly arguable. Thus, by reason of s. 18, it was inevitable that the Supreme Court would become involved. To me it is no answer to suggest that Premdas might have suddenly perished, or had a change of heart, and caved in. In fact, neither event came to pass. The Supreme Court simply had to become involved, the Constitution enjoins us to, it is our very duty, we are the only ones who can perform that duty.

If this is correct then surely the position in which we are placed is an even stronger one than cases that have come up where a man has been merely charged but where committal for trial has not occurred or committal proceedings commenced. Thus in R. v. Parke[dxli]⁶, a person was in the position that he had been arrested and charged with forgery, but he had not been committed for trial. Contempt proceedings were instituted alleging contempt of the High Court of Justice. Of course, there being no committal at the time of contempt, it was urged that there was no proceeding before the High Court susceptible to contempt proceedings. The answer to this was given by Wills J., for the court, and his Lordship denied the proposition saying[dxlii]⁷:

“The High Court exists always. To provide beforehand that one of its branches which, although it does not at the moment exist, yet must, both according to immemorial custom, and now also by statutes and rules having the same effect, come into existence, shall be hampered and hindered in the effectual discharge of its duties as soon as it is constituted, if called upon to try a particular case which it is at all events proposed to bring into that Court, is surely an offence against the High Court itself.”

This case was followed by the High Court of Australia in Packer v. Peacock[dxliii]⁸ and I would follow it here. The words I have underlined in his Lordship’s judgment indicate very clearly that contingencies such as the death of the alleged forger, the failure of the committal proceedings to reveal a prima facie case, or a no bill, did not weigh with his Lordship. To use a modern colloquialism, the affair was in the pipeline, and at the end of the pipe was the High Court of Justice.

My feelings are reinforced by the extract I will set out from the joint judgment of Kitto, Taylor, Menzies and Owen JJ. in James v. Robinson [dxliv]⁹. Their Honours said:

“We think that in order to constitute contempt of court it must, for the reasons which we have indicated, be concerned with proceedings which are pending in a court in the sense in which that expression has been applied in the cases to which we have referred. Indeed, if the imminence of proceedings were to be regarded as sufficient foundation for applications for attachment for contempt in matters of this character — which would, of course, introduce many difficulties and much uncertainty — then there was no reason why the courts should have taken the trouble, as they have done in the many cases mentioned, to examine the significance of the laying of an information or the making of a charge and subsequent arrest.”

And see the judgment of Windeyer J.[dxlv]¹⁰

Pritchard J.’s finding that a constitutional situation had been revealed to him, and that it was arguable, opened or created a pipeline that led in only one direction and to one destination, the Supreme Court.

I fully appreciate that the former position in Australia that was created by s. 40a of the Judiciary Act 1903-1973 (Aust.) made the matter crystal clear, so clear in fact, that once the State judge saw an “inter se” question arising in the papers, then the matter really concerned High Court papers and was a High Court matter. The situation is not as clear here. Section 40a is interesting when one compares it with s. 18 of the Constitution. Had the terms of s. 40a occurred in the original Constitution here, and then been supplanted by a section like s. 18, then, on an “expressio unius” basis, Mr. Priestley might have been on strong ground, certainly on stronger ground. But s. 18 is in the Constitution of the Independent State of Papua New Guinea. Section 40a is Australian, and Australian only.

I am therefore unable to accept Mr. Priestley’s closely reasoned arguments and would find there is a case to answer on the first charge but for one further matter that was raised. It concerns the suggestion that the letter of 11th July should, as it were, be read in the past tense, and as referring to the proceedings before Pritchard J., rather than “in futuro”, that is, to proceedings before the Supreme Court. Reading all the other letters in exhibit “B” I do not, “prima facie”, accede to this view at this interlocutory stage. The defendant commences her letter of 11th July by saying that she acknowledges s. 157 of the Constitution. A direction given contrary to it is, “prima facie”, an “in futuro” direction, and not one given to Pritchard J.

Looking at the charges singly, and as a whole, I find that the defendant has a case to answer in that what has been both written and published could have the tendency to produce the result that the prosecution says it does.

SALDANHA J: I agree with the judgment of the Deputy C.J.

KEARNEY J: The Public Prosecutor alleges that the Minister for Justice, the Honourable Nahau Rooney, M.P., is guilty of contempt of court. He brings three distinct charges of criminal contempt against the Minister.

The first charge arises from some of the contents of a letter dated 11th July, 1979, which the Minister sent to the Chief Justice, and circulated to other persons. The letter appears at annexure “A” to this opinion. The Public Prosecutor contends that paragraph numbers 3, 4, 8, 9, 13 and 14 of the letter contained material:

(a)      “that had a real or definite tendency to prejudice or embarrass these pending proceedings”;

or

(b)      “which as a matter of practical reality tended to interfere with the due course of justice in these proceedings”;

and

(c)      “which also created a real and definite tendency to prejudice or embarrass the fair trial of these proceedings.”

The first two counts, alternative in nature, appear in essence to charge an interference with the orderly administration of justice in certain legal proceedings. This is the variety of contempt commonly known as obstruction of justice, an example of which is attempting to influence a judge. The third count appears to charge an attempt to influence the outcome of the trial of the same proceedings; this variety of contempt, popularly called the sub judice rule, punishes publications designed to affect the impartial nature of legal proceedings, by taking a stand about the issues involved in a case.

The second charge arises from a telephone conversation between the Minister and Mr. Auhova, the news editor of the National Broadcasting Commission, on the evening of Friday 20th July, 1979. The Public Prosecutor charges that in the course of that conversation the Minister gave to Mr. Auhova, expressly for radio broadcast, a statement to the following effect:

“Commenting on the Chief Justice’s statement, the Justice Minister, Mrs. Nahau Rooney, said this evening `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.’ ”

Those words were admittedly broadcast as part of the N.B.C. National news at 7 p.m. on 20th July. The Public Prosecutor’s case is that the Minister is guilty of contempt, in giving this statement for broadcast, because it “scandalized the judges of the Supreme and National Courts of Justice.”

The third charge arises from a conversation between the Minister and Mr. Bobola, a journalist employed by the Post-Courier newspaper, later on the same evening, 20th July, at the Minister’s home. The Public Prosecutor contends that in the course of that conversation the Minister gave to Mr. Bobola, expressly for publication in the Post-Courier newspaper, a statement to the following effect:

“Mrs. Rooney on Friday said that she would not retract what she had said `because the Judiciary is no longer doing Justice.’ ”

Those words appeared in the Post-Courier newspaper on Monday 23rd July. The Public Prosecutor’s case is that the Minister was guilty of contempt in giving this statement to the journalist for publication, because it “scandalized the judiciary of Papua New Guinea”.

These are the three charges upon which the Public Prosecutor, by notice of motion dated 25th August, applied to have the Minister “committed to prison for her contempt of this Honourable Court.”

The Public Prosecutor has now adduced the whole of the evidence to be led in support of these charges; he has closed his case. The defendant submits that the Public Prosecutor has failed to establish a case which she need answer, in respect of any of the three charges; in effect, that the evidence as it now stands is not such as could justify a conclusion by an ordinary fair-minded tribunal that the defendant should be lawfully convicted. I deal first with this submission of “no case”, as regards the first charge.

The legal proceedings to which the first charge refers, are proceedings in this Court, numbered S.C.R. 1 of 1979, by way of a reference to this Court by the National Court, under the Constitution, s. 18(2). What is referred are six questions relating to the interpretation or application of the Constitution, which arose out of the arguments of counsel before the National Court on 4th July on a motion for an interlocutory injunction.

The document posing these questions, the reference, is before us. It is dated 20th July, 1979. In the first eleven paragraphs the learned judge of the National Court set out factual matter relating to the proceedings before him, which led ultimately to his referral of the six questions. It appears that one Dr. Premdas, a non-national working in Papua New Guinea, had had his entry permit revoked by the responsible Minister in June; thus becoming a prohibited immigrant and liable to deportation; he was informed by the immigration authorities that if he did not leave the country by 4th July, he would be deported. Dr. Premdas applied to have the revocation reviewed by a Committee of Review. A Committee of Review was appointed. Some correspondence ensued between Dr. Premdas and the responsible authorities concerning the stated reason for revocation and his desire to appear personally before the Review Committee. He was not allowed to appear personally, and was informed on 28th June that the Committee had decided to uphold the revocation, and that he was therefore required to depart the country on or before 4th July. Dr. Premdas did not leave the country; he went to court. The reference continues:

“12.    On 3rd July, 1979, the applicant instituted the present action (No. WS 536 of 1979) in the National Court by way of summons seeking (in brief) a declaratory order that the principles of natural justice guaranteed in the Constitution had been violated and that the applicant’s rights and freedoms were in need of protection and enforcement and for an order that the applicant not be forcibly removed from Papua New Guinea. The first defendant named was the State, the second the Minister for Foreign Affairs and Trade and the third the Review Committee comprising the three Ministers above named.

13.     On the same day by notice of motion the applicant sought an interlocutory injunction restraining the Minister for Foreign Affairs and Trade from effecting the imminent deportation. In support of the application was filed an affidavit setting out the above facts and annexing all the letters abovementioned. At the hearing that afternoon Mr. John K. Gawi appeared for the applicant and Mr. Oscar Emos, instructed by the State Solicitor, appeared for all the named defendants. Also present was Mr. Ignatius Kilage the Chief Ombudsman, who confirmed that an application had been made to the Ombudsman Commission to investigate the complaints made by the applicant but that the Commission had not had time to decide whether it had the power to investigate a matter of this type. Mr. Kilage did indicate his own preliminary view of the matter as being that the applicant should have been entitled to a hearing.

14.     In view of the lack of time which the State Solicitor had had to consider the matter I adjourned the proceedings until 9.30 a.m. the next morning 4th July, that being the last day before which the applicant became liable to deportation. Mr. Emos then opposed the application. A further affidavit by the applicant was sworn and filed that morning annexed to which were firstly a lengthy letter from the applicant to the Ombudsman Commission setting out the history of the matter and the nature of his complaints and secondly a submission by the Minister for Primary Industry made to the Committee of Review. I do not go into detail on the contents of the submission except to say that the Minister confirmed that the applicant had become involved in the affairs of the Department of Primary Industry at his (the Minister’s) specific request and that this was with the express approval of the Prime Minister and that his continued involvement was at a later stage similarly approved by the Prime Minister. Mr. Emos agreed that those documents could be before me. No evidence was adduced by the State.

15.     The matter was argued by counsel and that afternoon I made an order restraining the Minister for Foreign Affairs and Trade from effecting the deportation of the applicant up to Friday 3rd August, 1979, being the last day of the Supreme Court sittings commencing on 30th July, subject to the right of the Supreme Court to vary the order in any way it thought fit. I directed that immediate steps be taken to bring the matter before the Supreme Court. Costs of the notice of motion were reserved.

16.     The argument in support of the grant of the injunction was on two bases, firstly that questions of constitutional interpretation were involved and that the Supreme Court should decide such matters and secondly that a request had been made to the Ombudsman Commission to investigate the matter. The argument for the defendants was that because of s. 61AA of the Migration Act the court had no power to intervene in the subject matter.”

The learned judge gave written reasons for granting the injunction, on the afternoon of 4th July; a copy appears at annexure “B” to this opinion. The terms of that judgment are of extreme importance, in my opinion, in relation to the “no case” submission. It will be noted that:

(a)      The learned judge was dealing only with the application for an injunction.

(b)      This was an urgent matter — Dr. Premdas’ time was up that same afternoon — and his Honour proposed to give detailed reasons later. It is common ground in these proceedings that no further reasons were in fact ever given, and the only reasons for decision before this Court are those in annexure “B”.

(c)      His Honour had either been informed by counsel for Dr. Premdas, or had otherwise been led to believe, that Dr. Premdas as at 4th July “is seeking a declaration from the Supreme Court” that “the procedures laid down in the Migration Act are in breach of the Constitution” (emphasis). It is common ground in these proceedings that Dr. Premdas has never initiated proceedings for relief in the Supreme Court, as opposed to the National Court, and the only issues involving Dr. Premdas which have been litigated before the Supreme Court, are those involved in the six questions referred by the learned judge himself on 20th July.

(d)      As the usual prerequisite to obtain an interlocutory injunction, his Honour required the applicant to satisfy the National Court that there was an arguable case on the constitutional issue mentioned above. Having heard counsel, his Honour concluded that “this claim” was no mere sham but raised a genuine argument “which the Supreme Court will be asked to decide”. Again here, in my opinion, his Honour clearly has in mind the claim for relief in the Supreme Court which he then understood the applicant for the interlocutory injunction to be currently seeking.

(e)      His Honour concluded that he should grant the injunction because otherwise, upon being deported, the applicant would lose whatever rights he had “whatever may be the result of the application to the Supreme Court”. His Honour had earlier noted that “if the eventual decision is that the Migration Act is unconstitutional”, the revocation of the entry permit would have been invalid.

(f)      His Honour accepted that a speedy resolution of the substantive issues was necessary, limited the term of the injunction with reference to the next Supreme Court sittings, and directed “that the applicant take steps immediately to have this matter set down for hearing in the Supreme Court”. These latter words appear in the formal order taken out on 6th July.

I think this is a fair analysis of his Honour’s judgment of 4th July, and to me the conclusion is irresistible that at that time and on that occasion his Honour was considering only the question of interim relief in the National Court, and doing so on the understanding and in the belief that the applicant was then in the course of approaching the Supreme Court for substantive relief.

There is not the slightest suggestion anywhere in the judgment that his Honour was being asked to refer any constitutional question, or any question, to the Supreme Court; or that that issue was ever put to, or the subject of consideration at that time by, his Honour. The indications are to the contrary, that ultimate substantive relief by way of declaration was to be directly sought by the applicant in the Supreme Court, rather than the reference procedure which implies that substantive relief is ultimately to be sought from the National Court.

I hasten to add that in the haste and urgency which clearly surrounded the matter at that time, it is perfectly understandable and reasonable that Dr. Premdas’ legal advisers should then have had in mind a course of action which ultimately they did not in fact adopt.

The onus lies upon the Public Prosecutor to adduce material upon which it could reasonably be concluded that the proceedings in this Court to which all three counts in the first charge relate, S.C.R. 1 of 1979, were in fact pending as at 11th July, 1979. I note that the Public Prosecutor made it quite clear in the course of the hearing that the first charge related to proceedings alleged to be pending, and not, for example, to proceedings alleged to be imminent only, as at 11th July.

Apart from the materials I have discussed, no evidence has been led on this point. The court is left with a full and definitive account of what occurred in the National Court on 4th July in his Honour’s judgment of that date, and with the reference dated 20th July. Between those dates is a silent void, as to what occurred, and when.

There is no question of the prosecution being taken by surprise. Mr. Priestley stated last Tuesday that whether the proceedings were pending as at 11th July was in issue, and the questions of fact and authorities have since been fully agitated between Bench and Bar. Further, there would appear to have been no difficulty in adducing evidence as to what, if anything, occurred between 4th July and 20th July, and when, in relation to proceedings S.C.R. 1 of 1979; for Mr. Gawi of counsel for Dr. Premdas attended proceedings in this Court for almost the whole of last week, yet at no stage was he sought to be called. It goes without saying that this Court can only decide issues upon admissible materials placed before it in open court, proved in the proper way, and subject to any necessary cross-examination; that is of the essence of the fair hearing guaranteed as a fundamental right under the Constitution, s. 37(3), and, indeed, the objective of the sub judice branch of the law of contempt is to protect that right.

Mr. Priestley’s submissions are as follows. That proceedings S.C.R. No. 1 of 1979 were not pending in this Court until 20th July, the date of the reference. Reading the Constitution, s. 18(2) with the relevant rules of the Supreme Court Rules 1977, indicates that no reference can exist until the judge signs and transmits it. The language of the Constitution, s. 18(2) was inapt to divest automatically a court of jurisdiction when a constitutional question arose before it; to do so, would require stronger language, akin to the former s. 40a of the Judiciary Act 1903 (Aust.). Section 18(2) contemplated that a judge must refer, once he had decided that the question was not trivial, vexatious or irrelevant; it was more akin to the approach in s. 40 of the Judiciary Act 1903 (Aust.). Here, the learned judge had neither in terms or substance referred the matter or ordered that it be referred, on 4th July. The words “proposed reference” in r. 4(6) of the Supreme Court Rules 1977 indicated that an order was contemplated. So far as concerns the ambit of the hearing before the Supreme Court, the rule enunciated by Lord Selborne in Green v. Lord Penzance[dxlvi]¹¹ did not take the commencement of the hearing back beyond the receipt of the reference in the Supreme Court registry. Mr. Priestley conceded his point was a narrow one, but it was important to the defendant, because it changed the entire nature of the alleged contempt. Mr. Priestley also dealt with the proper construction to be placed upon the letter of 11th July, contending that was directed solely to the injunction granted by the National Court; and the key to its proper understanding lay in s. 61AA of the Migration Act 1963. I do not propose to deal with that submission.

Mr. Egan submitted that on 4th July the jurisdiction of the National Court to deal further with the matter, was ousted, and on that date the proceedings commenced, and were pending, in the Supreme Court.

I consider that, in the light of what actually occurred on 4th July, no matter and no question was referred to the Supreme Court by the learned judge on that day. It is possible that a reference is pending in the Supreme Court from the time when the judge orders that the reference be made, even though the precise form of the questions are not at that time settled. But that does not take the present case any further, because the hearing on 4th July was not directed to that question, and there is not a skerrick of evidence as to the date between 4th and 20th July, if any, when the judge decided to refer the questions; application of the principle enunciated by Lord Selborne, in Green v. Lord Penzance[dxlvii]¹² would not, in my opinion, place the commencement of the Supreme Court proceedings prior to that date. I do not consider that s. 18(2) of the Constitution is similar in its operation to the former s. 40a of the Judiciary Act 1903 (Aust.); rather it requires prior consideration by the judge and determination of the nature of the question in issue — whether it is trivial, vexatious or irrelevant — before a reference can be instituted.

It follows that I consider the defendant has no case to answer on the first charge, because there is no evidence that at the date of publication of the letter in question, 11th July, 1979, the proceedings to which that publication was alleged to be a contempt, were pending. I would dismiss the first charge against the defendant.

It is true that the point is a narrow one, but the time for the application of the law of contempt is of considerable importance, and, in particular, it is a great source of anxiety for the press. The case does not throw up the question in its most crucial form, because of the deliberate limitation of the charge to pending proceedings.

As regards the second and third charges it suffices to say that I respectfully agree with my brothers that there is a case to answer, on each.

APPENDIX TO JUDGMENT OF KEARNEY J

“A”

Office of Minister for Justice

11th July, 1979

The Hon. Sir William Prentice

Chief Justice of Papua New Guinea

P.O. Box 7018

Boroko

My Dear Chief Justice,

In writing this letter, I acknowledge section 157 of the constitution which refers to the Independence of the National Judicial system.

However I am writing in my capacity as an elected member, a leader of this country and the Minister responsible for National Justice Administration I see it absolutely necessary to bring to your attention the feelings of the Nation. I now refer to the recent case the State v. Dr. R. Premdas.

The recent decision by the National Court to suspend the deportation order for Dr. Premdas can be clearly seen as a case where a narrow and literal interpretation of the written law was used.

In saying this I believe the court had a responsibility to take into account the reasons that Papua New Guinea or any other country makes provision for deportation in the Migration Act.

The decision to deport Dr. Premdas was made by the Minister for Foreign Relations and Trade and later endorsed by a properly constituted committee of review of three senior Ministers of the Government.

The Ministers made their decision in the belief that the actions of Dr. Premdas may have been detrimental to the sovereignty of the Nation.

It is obvious that no one has deprived Dr. Premdas of his basic human rights or freedom.

The important principle at stake is not simply whether Dr. Premdas has done any wrong to warrant deportation nor whether the procedures employed are correct but whether the Government of Papua New Guinea has the right and power to decide which non-citizens are welcome here and which non-citizens are not welcome.

It is up to the Elected Government and no-one else to decide what criteria are used to deport Foreigners.

Neither I nor my Ministerial colleagues understand the meaning of “injunction” “prerogative writ”, “unconstitutionality of the decision of the review committee” or any of the other legalistic arguments that are now preceeding. What we do understand is the concept of a Papua New Guinea identity and we believe that it is our right and prerogative to decide which foreigners we want in our country.

The matter of deportation is not a matter of Justice or Injustice because the deportee is not being penalized by imprisonment or being fined in any way. He is merely being told to return to his home country and that he is no longer a welcome visitor to our country.

I believe the principle of being a Papua New Guinean is basic and transcends any semantic or legalistic argument.

In failing to recognize this principle the court has jeapodized it’s independence and neutrality by intervening in a matter which is obviously the sole prerogative of the Government.

However I ask all members of the Judiciary to make a greater effort to use their discretion effectively to develop the National legal system in the context of a proud and growing National conciousness. (sic)

I remain,

Yours respectfully,

nahau rooney, (MP)

minister for justice.

“B”

Papua New Guinea

In the National

Court of Justice

Coram: Pritchard J.

Wednesday,

4th July, 1979

Between: RALPH RAKHINAND PREMDAS (complainant)

and: THE INDEPENDENT STATE OF PAPUA NEW GUINEA (first defendant)

and: EBIA OLEWALE, Minister for Foreign Affairs and Trade (second defendant)

and: THE COMMITTEE OF REVIEW, under s. 7 of the Migration Act 1978, comprising SIR PETER LUS, Minister for Commerce, JOHN MOMIS, Minister for Decentralization, and RAPHAEL DOA, Minister for Health (third defendant)

(W.S. No. 536 of 1979)

In this matter due to the very urgency of its nature, I have not had the time to give detailed reasons for my decision, but I will certainly give them within the next few days.

The applicant, Dr. Premdas has had his entry permit to enter and remain in Papua New Guinea revoked by the responsible Minister, the Minister for Foreign Affairs and Trade pursuant to s. 7 of the Migration Act 1963. The applicant exercised his right to a review of this decision by a Committee of Review appointed under the Act, which Committee upheld the Minister’s decision of revocation. The Committee’s decision was communicated to the applicant in a letter from the Secretary for Foreign Affairs and Trade dated 28th June. This letter required the applicant to depart from Papua New Guinea on or before today. If he does not leave today he becomes liable to deportation.

This request for an injunction restraining the Minister from taking this drastic step is made on two bases.

Firstly it is claimed that the procedures laid down in the Migration Act 1963 are in breach of the Constitution of the Independent State of Papua New Guinea and the applicant is seeking a declaration from the Supreme Court that this is so.

Having heard the argument put to me by Mr. Gawi, the applicant’s counsel, I am satisfied that he has put to me an arguable case in this regard. I am satisfied that the claim is no mere sham or pretext but does raise a genuine argument involving the interpretation and/or application of the Constitution which the Supreme Court will be asked to decide. If the eventual decision is that the Migration Act 1963 is unconstitutional the result would be that the revocation of the applicant’s entry permit would have been invalid.

Secondly it is claimed that a request has been made to the Ombudsman Commission to carry out an investigation into the decisions of the Minister and the Committee of Review. The Chief Ombudsman, Mr. Kilage, has informed me that the matter has been brought to the attention of the Commission and a decision has yet to be made whether an investigation can be made or not. I wish to make it quite clear that I am not indicating my views on the rights or wrongs of this matter nor am I attempting to influence any decision which the Ombudsman Commission might make, either to investigate or not, or if the matter is to be investigated, as to the merits of the applicant’s complaint. On the face of it it does appear to me that the Commission has the power to investigate the matter and on the evidence before me it does appear to be a complaint which has some grounds for it. But I say again, I do not indicate in any way whether those grounds are valid grounds in my opinion or not.

Whatever may be the result of the application to the Supreme Court and whatever may be the result of any investigation the Ombudsman Commission may undertake it is obvious that whatever rights the applicant has would be extinguished by his deportation. He would thus suffer irreparable damage which in my view entitles him now to this injunction.

I accept however, what Mr. Emos, counsel for the State has said, this matter must be quickly resolved. I therefore make an order restraining Mr. Niwia Ebia Olewale the Minister for Foreign Affairs and Trade and all persons acting on his behalf or with his authority from taking any action to effect the deportation of the applicant from Papua New Guinea up to Friday 3rd August next being the last day of the Supreme Court sittings commencing on 30th July next subject of course to the right of the Supreme Court to vary this order in any way it thinks fit.

I direct that the applicant take steps immediately to have this matter set down for hearing in the Supreme Court.

I reserve the costs of this application to the hearing of the action itself.

WILSON J: I agree with the reasons announced by the Deputy Chief Justice.

I would only add, in relation to the question of whether or not the proceedings in the Supreme Court were “pending” as at 11th July, 1979, when the Minister wrote and distributed her letter addressed to the Chief Justice, that, in my judgment proceedings become “pending” proceedings in the Supreme Court by operation of law as soon as “any question relating to the interpretation or application of any provision of” the Constitution arises and when the court in which it arises is satisfied that the question is not “trivial, vexatious or irrelevant”. The proceedings are “pending” proceedings in the Supreme Court as from that stage when the lower court (in this instance the National Court presided over by Pritchard J.) takes action whether by way of adjournment or otherwise in recognition of that situation. Notwithstanding Pritchard J.’s choice of words, there can be no doubt that as at 4th July, 1979, a constitutional reference was pending; the preparation of questions and the signing of the reference were purely procedural. Just as a “hearing” includes the necessary antecedents and the necessary or proper consequences (see Green v. Lord Penzance[dxlviii]¹³) so proceedings in the context of a reference to the Supreme Court under s. 18 of the Constitution includes “the necessary antecedents” of the hearing before the lower court in which the question relating to the interpretation or application of the Constitution arises and the court feels constrained to refer the matter to the Supreme Court.

GREVILLE SMITH J: I also agree with the judgment of the Deputy Chief Justice.

By majority a case to answer found in respect of the first charge, Kearney J. dissenting.

Case to answer found in respect of the second and third charges.

Solicitors for the respondent: Ikenna Nwokolo & Co.

[dxxxvi]Section 18(2) of the Constitution of the Independent State of Papua New Guinea provides:

“Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.”

[dxxxvii](1955) 92 C.L.R. 654.

[dxxxviii][1971-72] P. & N.G.L.R. 255.

[dxxxix][1976] P.N.G.L.R. 96.

[dxl][1971-72] P. & N.G.L.R. 255.

[dxli][1903] 2 K.B. 432.

[dxlii][1903] UKLawRpKQB 151; [1903] 2 K.B. 432, at p. 437.

[dxliii](1912) 13 C.L.R. 577.

[dxliv][1963] HCA 32; (1964) 109 C.L.R. 593, at p. 607.

[dxlv][1963] HCA 32; (1964) 109 C.L.R. 593, at pp. 614 to 618.

[dxlvi] (1881) 6 App. Cas. 657, at p. 669.

[dxlvii] (1881) 6 App. Cas. 657, at p. 669.

[dxlviii] (1880) 6 A.C. 657.