[1980-1981] SILR 1

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 3 of 1980

THE ATTORNEY GENERAL

v

SOLOMON ISLANDS BROADCASTING CORPORATION

High Court of Solomon Islands
(Davis C J)
Civil Case No.3 of 1980

4th March 1980

Criminal law - contempt of court publication of previous convictions of an accused person before trial - Order 61 Rule 21 of the High Court (Civil Procedure) Rules 1964) - writ of attachment.

Facts:

The Attorney General applied for leave to issue a writ of attachment against the (Defendant) as a result of a radio broadcast by the Defendant in respect to an accused person who was brought to the Magistrates’ Court charged with an offence of assault causing actual bodily harm. During the court hearing an application was made by the prosecution for a further remand of the accused person as the victim of the assault had died and more serious charges were under consideration. In the bulletin of local news broadcast in the afternoon of the same day of hearing, the Defendant made reference to the accused person’s appearance in the Magistrates’ Court. Reference was also made to his previous record and convictions and the sentence imposed in respect of those convictions.

Held:

1. That the publication by the Defendant of details of the accused’s previous criminal records in its news broadcast constituted a contempt of court in that it gave rise to a risk of prejudice against the accused person in the mind of any lay Magistrate who might have to conduct the Preliminary Inquiry into the charge against the accused person, any witness who might be called to give evidence at his trial, and in that of the public at large.

2. That the mischief against which the summary remedy of contempt of court is directed is not merely that justice will not be done, but that it will not be manifestly seen to be done.

3. That $50.00 is adequate punishment in this case.

Cases referred to:

R. -v- Davies (1906) 1 KB 32
AG -v- Times Newspaper Limited (1973) 3 All ER 54
R. -v- Duffy (1960) 2 All ER 891

Applicant: in person
For the Defendant: P O’Regan
Reported by: James Apariai

Davies CJ: This is an application by the Attorney-General Order 61 rule 21 of the High Court (Civil Procedure) Rules 1964 for leave to issue a writ of attachment against Solomon Islands Broadcasting Corporation for contempt of court.

The facts as set out in the affidavits of two senior police officers filed with the Court were as follows: On the morning of the 4th January 1980 Peter Ome, a remand prisoner charged with assault causing actual bodily harm contrary to section 238 of the Penal Code, was brought before the Central District Magistrate’s Court at Honiara on the application of the Crown that he be remanded in custody for a further period of fourteen days. The grounds for this application were that the victim of the assault with which Peter Ome had been charged had died and more serious charges were under consideration. The Magistrate’s Court granted the application and Peter Ome was remanded in custody. No mention was made in these proceedings of any previous criminal record of Peter Ome. In the bulletin of local news broadcast by Solomon Islands Broadcasting Corporation at 12.30 p.m. on the 4th January, however, the following item was included with reference to Peter Ome’s appearance in the Magistrate’s Court:-

"The Principal Magistrate’s Court in Honiara this morning accepted a request by the prosecution to further remand a man for 14 days in connection with a stabbing incident which resulted in the death of MR FESTUS HAGAI in Honiara at the weekend. The man, PETER OME aged about twenty years, comes from the Lau area of Malaita. He had previous records with the police and served two years in prison from 1974 to 1976. He was convicted then with assault, causing actual bodily harm. He also served a month in prison in 1977 on a charge of malicious damage. PETER OME will remain in custody until the 18th of this month and during this time a preliminary inquiry will be held on his case."

The application to attach the Corporation for contempt of court now before the Court relates to the second paragraph of this news item.

It is well-established that it is a serious contempt to publish details of the previous criminal record of an accused person prior to his trial. In the case of R. v. Davies (1906) 1 K.B. 32, the facts of which are very similar to the present case, Wills J. (at p. 36) said:

"The reason why the .publication of articles like those with which we have to deal is treated as a contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists - namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the Court which has to try the case to impotence, so far as the effectual elimination of prejudice and prepossession is concerned. It is difficult to conceive an apter description of such conduct than is conveyed by the expression contempt of Court."

Mr O’Regan, who appears for the Corporation, does not dispute that the publication "over the midday news of the 4th January of an account of Peter Ome’s previous criminal record was a contempt. He agreed, however, that whereas in England the prejudice likely to be caused by such publication to an accused who was to be tried by jury was serious, in Solomon Islands, where the Court consisted of a judge sitting alone without jury and only very rarely with assessors, there was virtually no risk of the accused’s being prejudiced by such publication, as the judge would not be influenced in his decision by knowledge of the accused’s previous record acquired from such publication, Mr O’Regan cited in support of this argument the cases of In re the William Thomas' Shipping Co Ltd (1930) 1 Ch. 368 and R. v. Duffy (1960) 2 AER 891. He conceded that the Corporation’s contempt had been proved but submitted that it was in the circumstances a technical contempt for which the Corporation should not be punished and that justice would be satisfied with the Corporation’s making a contribution to the applicant’s costs. In this connection it is pertinent to refer to what was said on contempt by Lord Morris of Borth-y-Gest 34 in A.G. v. Times Newspapers Ltd (1973) 3 AER 54 (H.L.) at p. 67-

"According to the measure of its gravity it may call for punishment or penalty going beyond the payment of costs. A court will therefore only find ‘contempt’ where the risk of prejudice is serious or real or substantial".

The Attorney-General, while not disputing that the accused was likely to suffer no prejudice from the effect the publication of Peter Ome’s previous record would have had on the mind of the trial judge, referred the Court in particular to consideration of the wider issue that the Corporation’s action was an interference in the general administration of justice by the courts. He referred the Court to a number of authorities but I think I can do no better than to quote from the opinion of Lord Diplock in the case of the Attorney-General v. Times Newspapers Ltd (1973) 3 AER 54 (H.L.) at p. 72.

"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly that they should be able to rely on obtaining in the courts that arbitrament of a tribunal which is free from bias against any party and whose decision will be based on those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely on there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.

The commonest kind of conduct to come before the courts on applications for committal for contempt of court has been conduct which has been calculated to prejudice the second requirement. This is because trial by jury has been, as it still is, the mode of trial of all serious criminal offences, and until comparatively recently has also been the mode of trial of most civil cases at common law which are likely to attract the attention of the public. Laymen, whether acting as jurymen or witnesses (or, for that matter, as magistrates), were regarded by the judges as being vulnerable to influence or pressure which might impair their impartiality or cause them to form preconceived views as to the facts of the dispute, or, in the case of witnesses, to be unwilling to give evidence with candour at the trial. The conduct most commonly complained of was the publication, generally in a newspaper, of statements or comments about parties to pending litigation or about facts at issue in the litigation; so the discussion in the judgments tends to be directed to consideration of the question whether the publication complained of involved a risk of causing someone who might be called on to serve as a juror to be prejudiced against a party or to form a preconceived view of the facts before the evidence was adduced in court, or a risk of influencing someone who might be called as a witness to alter his evidence or to decline to testify.

Contempt of court, except the rare offence of scandalising the court after judgment, is committed before the trial is concluded. Whether in the result the publication will have had any influence on jurors or witnesses is not known when the proceedings for committal for contempt of court are heard. The mischief against which the summary remedy for contempt of court is directed is not merely that justice will not be done but that it will not be manifestly seen to be done. Contempt of court is punishable because it undermines the confidence not only of the parties to the particular litigation but also of the public as potential suitors, in the due administration of justice by the established courts of law."

I am satisfied that the publication by the Corporation of details of Peter Ome’s previous criminal record in its news broadcast at 12.30 p.m. on the 4th January 1980 constituted a contempt of court. There is no doubt in my mind that it gave rise to a risk of prejudice against the accused in the mind of any lay magistrate who might have to conduct the preliminary inquiry into the charge against Peter Ome, any witness who might be called to give evidence at Peter Ome’s trial and in that of the public at large. To this extent it was an interference in the administration of justice. As Lord Diplock said in the passage quoted above: "The mischief against which the summary remedy of contempt of court is directed is not merely that justice will not be done but that it will not be manifestly seen to be done."

In my view this constitutes a serious contempt. Bearing in mind Mr O’Regan’s account of how publication of Peter Ome’s previous criminal record came about, however, the relative inexperience of reporters in Solomon Islands and the rarity to date of cases for contempt of court in Solomon Islands, I have come to the conclusion that a fine of $50 is adequate punishment in this case. Accordingly I order that Solomon Islands Broadcasting Corporation pay a fine of $50 and the costs of these proceedings.