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Maino v Avei [1998] PNGLR 165 (1 July 1998)

[1998] PNGLR

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CHARLES MAINO

V

MOI AVEI; and
ELECTORAL COMMISSION

WAIGANI: WOODS J
23 June and 1 July 1998

Facts

The petitioner successfully sought a recount of the votes for the Kairuku Hiri Open Electorate in his election petition against the first respondent. The first respondent filed an application for judicial review in the Supreme Court to review the National Court’s decision.

Before the hearing of the application by the Supreme Court, the petitioner went to the media and criticized the first respondent for filing the application in the Supreme Court. The first respondent sued the petitioner for contempt of court.

Held

1. A contempt proceeding may succeed if the applicant can prove that the statements made wrongfully have the real likelihood of influencing the appellate court in its deliberation of the case.
   
2. In an election petition case where the proceedings as envisaged under the Organic Law On National and Local-level Government Elections has been completed and a final order has been made and before the application for review is heard, statements made in relation to the completed case cannot amount to contempt.
   

Papua New Guinea case cited

SCR 3 of 1984 Exp Callick & Koroma [1985] PNGLR 67.

Other cases cited

A-G v Times Newspapers Ltd [1973] 3 All ER 54.

A-G v BBC [1981] AC 303.

Counsel

S Kassman, for the petitioner.
G Sheppard, for the first respondent.
P Lowing, for the Electoral Commission.

1 July 1998

Woods J. This matter has come before the court by way of motion for contempt filed by the first respondent against the petitioner. The charge is that the petitioner, Sir Charles Maino, be punished for contempt by reason that on or about the 13th May, 1998 he did wrongfully make public comments attributed to him in certain newspaper articles which comments were in connection with pending legal proceedings and had a tendency to affect the course of justice.

The law of contempt in this type of situation is concerned simply with ensuring that civil proceedings are conducted and tried free from the interferences of prejudicial publications. The law therefore places restrictions on what may legally be published because of the likely effect of unrestricted publication on the due administration of justice. These restrictions have two main objectives.

Firstly, an immediate objective to protect the fairness of the particular hearing in question which may be at risk by what is termed ‘media trial’. Secondly, the fear is that media trials could usurp the power of the court, without giving litigants any of the safeguards found in the courts and thereby undermine confidence in the legal system generally. A leading statement of the law of contempt is found in the case Attorney-General v Times Newspapers Ltd [1973] 3 All ER 54. That case arose concerning the publication of powerful articles criticising the law relating to the liability of drug companies at the same time as lengthy court proceedings were on foot concerning the liability of drug companies for the supply and use of the drug thalidomide. The House of Lords affirmed the principle that it was a contempt of court to publish an article expressing an opinion on the merits of a specific issue which was before the court for determination in circumstances such that the article gave rise to a real risk that the fair trial of the action would be prejudiced. They stated that it was the purpose of the law of contempt to protect the public interest in the proper administration of justice and in those circumstances that interest outweighed the public interest in discussion of the issues raised by the litigation. The House of Lords suggested that if the article in question could be seen as improper pressure to induce a litigant to settle a case on terms to which he did not wish to agree this was contempt of court. What is noted in that case is that the Attorney General who was not a party to the proceedings in court for which the contempt was alleged brought the action before the court. There are further statements in the judgements of the Law Lords, which I find, of interest such as:

"...conduct amounts to contempt where it presents a real risk, as opposed to a mere possibility, of interference with the due administration of justice. The seriousness of that risk is relevant only to the question whether the contempt is one for which the court, in its discretion, ought to inflict any punishment and, if so, what punishment it should inflict.

...As a general rule it is permissible publicly to urge a party to litigation to forgo his legal rights in whole or in part provided that it is done in a fair and temperate way and without any oblique motive. Pressure on a litigant, which goes beyond fair and legitimate criticism, however, may well involve contempt.

...It is contempt of court to hold a suitor up to public obloquy for availing himself of his right to have legal rights and obligations ascertained and enforced in courts of law; the public mischief of such conduct lies in the inhibiting effect which it might have on all potential suitors if it were to become the common belief that to have recourse to the courts for the ascertainment and enforcement of their legal rights and obligations would make them a legitimate target of public abuse.

...Proper criticism of a judgement already given but under appeal would not amount to contempt."

I have included the above quotes from the Times case as they clearly express many of the points that I must consider in this matter before me. It is further noted in that judgement that in a case involving witnesses and a jury, even fair and temperate criticism may be likely to affect the minds of some of them so as to involve contempt, but it can be assumed that it would not affect the mind of a professional judge. However, compare here what was said in Attorney-General v BBC [1981] AC 303 by Viscount Dilhorne at page 335:

"It is sometimes asserted that no judge will be influenced in his judgement by anything said by the media and consequently that the need to prevent publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard or read outside the court and he will not knowingly let himself be influenced in any way by the media, nor in my view will any layman experienced in the discharge of judicial duties. Nevertheless, it should, I think, be recognised that a man may not be able to keep out that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it."

So what is the contempt alleged and how should it be seen in the light of the principles expressed. The petitioner had filed a petition challenging the election of the first respondent in the National Elections where the petitioner had been a rival candidate. The trial of this petition had taken place during April and May this year. During the trial the National Court had ordered a recount of the ballot papers. It seems that for most purposes the trial had concluded as most of the allegations made by the petitioner had been dismissed so there was only the matter of the order for a recount. The first respondent thereupon sought a review in the Supreme Court of the order of the National Court. The petitioner then gave a press conference in which he was critical of the action of the first respondent in seeking the review and these criticism were published in the nation’s daily newspapers. Phrases like the following appeared:

‘questioned the genuineness of an appeal’

‘he said he appreciated the aggrieved parties right to appeal but I don’t want the constitutional rights to be abused by lawyers representing the parties’

‘I hope the lawyers are not appealing just for the sake of appealing in order to make more money out of the Electoral Commission which is funded from the public purse’

‘what is my brother Moi afraid of now. Is he afraid of the recount. Is it because he is trying to hide something.’

Under the provisions of the Organic Law on National and Local-Level Government Elections for all intents and purposes, the litigation between the parties has finished. The Organic Law itself provides clearly that there shall be no appeal from a decision of the National Court:

"A decision of the National Court is final and conclusive and without appeal; and shall not be questioned in any way."

Therefore the only way it can be said that there are still proceedings in existence depends on the exercise of a limited right of review under the Constitution. There has been a final determination and order from a judge, so there is no way that it can be said that the main proceedings can be influenced or prejudiced. As certain Law Lords noted in the Times case, "proper criticism of a judgement already given but under appeal would not amount to contempt."

So in the case before me, we have a proper judgement, all the evidence has been presented and arguments have been put and the matter determined and we have an order clearly provided for under the Organic Law and from which there can be no appeal. So in so far as there is anything before the court, it is a special procedure being taken before a bench of appellate judges. So is there a real risk that appellate judges will be influenced by public comments of a party to a court order where the outcome of that order is still very much unknown. The law is taking its course, there is no one to be influenced. If it is suggested that there is pressure being put on the other party to withdraw any proceedings we must remember that these proceedings are special proceedings under s 155 of the Constitution by parties who are in the middle of the cut and thrust of political ambition. I do not want to give a licence to parties to do and say anything, but at this stage we have on the face of it, final determinations, where witnesses and ordinary people are not affected or under any pressure and where I am satisfied that professional appellate judges would not be improperly influenced.

I have noted a case in this jurisdiction on a charge of contempt relating to a newspaper article when the Supreme Court was considering questions about the evidence in an election petition. That is the case SCR No 3 of 1984 Exp Callick & Koroma [1985] PNGLR 67 where a newspaper went into detail about the evidence which the court was considering in such a way that it was suggested the newspaper was prejudging the issue and there may be a tendency to influence the court. The judge in that case found that the article did border on contempt but dismissed the charge. However, I find that that case whilst affirming the same principles I have considered is not really on issue with this case before me.

On the motion before me I cannot find that the statements attributed to the petitioner and so published are calculated to prejudice any of the requirements as stated for the fair and due administration of justice nor could they undermine the public confidence in the due administration of justice.

I dismiss the motion.

Lawyer for the petitioner: White and Kassman.
Lawyer for the first respondent: Maladinas Lawyers.
Lawyer for the Electoral Commission: Gadens Lawyers.