IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

NO.CR.10/01

BETWEEN:

ATTORNEY GENERAL

AND:

1. SANGSTER SAULALA
2. VIKITA FINAU
3. TALAOA FUNGALEI
4. SIONE TALANOA
5. MOLENI TAUFA
6. SEFITA TONGA
7. OCEANIA BROADCASTING NETWORK LTD
Defendants.

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr 'A. Kefu for the prosecution
Mr W. Edwards for the defendants.

Date of hearing: 25th & 29th May, 2001.
Date of ruling: 5th June, 2001.

RULING

This case arises from comments made in two television programmes broadcast by the seventh defendant company on 17 November 2000 and 5 December 2000. Both were editions of "Check It Out", a current affairs programme that takes the form of a panel discussion.

The first defendant hosted both shows. The panellists in the November broadcast were the second and third defendants and, in December, were the fourth, fifth and sixth defendants.

The subject of both programmes was the publication by the newspaper "Taimi 'o Tonga" of the contents of a petition that had been presented to the King and which alleged misconduct by the Minister of Police. The transcripts of both programmes are before the court and the intention and content of each is clearly to refute the allegations made in the petition.

It is not disputed that, prior to the first broadcast, the Minister had filed an action against the editor of and one of the writers in "Taimi 'o Tonga" in relation to articles stating the same matters as had been alleged in the petition to His Majesty. During the broadcast of the first programme, the first defendant had made reference to that civil action pointing out that the allegations were very strong and that the Minister of Police had sued the paper for $750,000.

On 7 February 2001, the Attorney General acting in the public interest, (see Attorney General v Times Newspapers Ltd (1974) AC 273 at 311) filed a Notice of Motion for contempt on the basis that the comments were likely to prejudice the due administration of justice by interfering with or affecting the fairness of the trial of the civil action brought by the Minister of Police.

That civil action was for defamation and the Notice of Motion set out the basic allegations made in the statement of claim. It stated the claim arose from the contents of two articles published by Taimi 'o Tonga. It claimed that the newspaper articles could be taken to mean, inter alia, that the Minister was corrupt, used prisoners to carry out his personal work, conspired to obstruct the course of justice, misused his position and procured the commission of two burglaries.

The Notice of Motion alleges that the November programme discussed one of the burglaries and the use of prisoners for private work and the December programme referred again to those topics and also to the other burglary.

Paragraphs 10 and 11 of the Notice state:

"(10) The television programmes directly discussed the facts and issues alleged in the civil matter [Edwards v Moala and Tapueluelu, C1003/00] and it was likely to prejudice the due administration of justice in that particular civil matter;

(11) The defendants actively participated in the discussion of the facts and issues in the civil case knowing or were reckless and ought to have known that the civil claim had been lodged in the Supreme Court of Tonga."

The Notice of Motion was supported by an affidavit sworn by Crown counsel stating that he had seen copies of both programmes. He refers to the fact a civil claim had been filed and that the first defendant had referred to it. He gave an account of the content of the two programmes.

Summonses to show cause were issued and affidavits were filed by the defendants. In chambers it was agreed between counsel that they would agree a translated transcript of the programmes and would file written submissions. Mr Kefu, counsel prosecuting the case, advised the court he did not wish to file any further affidavits but would wish to cross-examine the defendants on their affidavits.

When the submissions were filed, those of the defendants included a number of preliminary objections to the proceedings most of which I do not need to consider at this stage. However, one ground of objection was that the Notice of Motion and affidavit in support did not supply sufficient particulars to allow the defendants to know with any precision the allegation against them. Following some discussion of this, I invited counsel to provide further submissions on the question of whether, as these were criminal proceedings, the prosecution had to establish a prima facie case before the defendants could be required to show cause and whether, in this case, the evidence revealed such a case.

The court's concern was that, from the allegations in the Notice of Motion, it was clear the court would have to decide whether the comments in the programmes were likely to prejudice the due conduct of the civil trial. In order to do that it would need to know the particulars of that case. Although the Notice referred to the contents of the claim, the pleading was not before the court and the only evidence of its contents, contained in the affidavit of Crown counsel, was incomplete and clearly hearsay.

I gratefully acknowledge the quality of the submissions provided by both sides at short notice. Counsel agree that the procedure for trying contempt is a summary one. Even in a case such as this where the contempt is outside the court and where the proceedings with which the offending statements are alleged to interfere have not yet reached a hearing, the authorities support the special process of summary trial; Re Lonrho Plc (1990) 2 AC 154 at 177, approving R v D (1984) AC 778 at 792. Counsel also accept that, because of the criminal nature of all such cases, the standard of proof is beyond reasonable doubt and the burden lies on the prosecution; Re Bramblevale Ltd (1970) Ch 128 at 137.

Mr Kefu submits out that in cases of contempt outside the court, the court decides on the prosecution's application whether there is sufficient evidence to initiate proceedings against the defendants. The proceeding is, at that point, akin to a magistrate's court conducting a preliminary inquiry and the court will not allow the case to proceed further if there is not a prima facie case. If that is so, he suggests, there must be sufficient evidence at this stage to put the other side to its defence.

I cannot accept the procedure in contempt is analogous. In a preliminary inquiry, the evidence is produced to the court and at that stage is subject, if the defence so wishes, to challenge. The defence may also call evidence in support of its case. If, despite this, the case is still committed to the higher court, the evidence is called again and, on the evidence as it is demonstrated in that trial, the defence may again submit no case.

The application in a case of contempt is a procedural step to ensure that the allegation discloses a proper case for contempt proceedings. I do not accept that the court is, at that stage doing more than noting that the Notice of Motion reveals a proper cause of action and that it is supported by an affidavit. The function of the court at that stage is not to assess the weight or sufficiency of the evidence produced at the time of the application to prove the grounds in the Notice.

Our rules do not set out any procedure for applications for committal except in cases where the contempt consists of disobedience to or failure to obey an order of the court and the procedure for other contempts set out in Order 52 of the English Rules, therefore, applies with such necessary modification as circumstances in Tonga require.

Under Order 52, once leave has been given by the Divisional Court, the prosecution is limited to the grounds stated in the Notice and the evidence filed with the application for leave. That procedure has not been applied in Tonga. The procedure used here has been set a chambers hearing for directions and, at such hearing, to set a timetable which allows the prosecution also to file any additional affidavit evidence if it so wishes.

In the present case, Mr Kefu advised the court in chambers that he did not intend to file further evidence although it was agreed at the chambers hearing that the transcript of the programme would be admitted. Had that not occurred, I would venture to suggest the case could not have proceeded.

In cases where the contempt has been committed in the face of the court or by direct disobedience of a court order, the evidence is unlikely to be disputed. In cases such as this where the contempt was outside the court there may be dispute both of the facts themselves and whether they could have amounted to the particular interference with the court process that is alleged. The question for the court is not just whether the words were spoken and the knowledge of the alleged contemnors when they said them but also, if it should be found that they were said, whether the effect might be to interfere with the civil case. The court cannot in this case make any finding without the details of the civil case with the trial of which it is alleged the comments would interfere.

Although I have not accepted Mr Kefu's submission regarding the court's role at the initial stages of the case and its effect on a possible submission of no case now, he agrees that, in order to prove the contempt, the court will need the details of the pleadings in the defamation action.

He submits that he does not need to produce the pleadings in evidence. The court can, he suggests, take judicial notice of the civil case.

He cites the authority of Craven v Smith (1869) LR 4 Exch 146 to support the statement in Halsbury's Laws that "the court is entitled to look at its own records and proceedings in any matter and take notice of their contents even though they may not have been formally brought before the court by the parties". With respect to the learned editors of Halsbury, I consider they have drawn a far wider principle than Craven v Smith establishes. What case establishes is that, when the court is considering a further or consequential order in a case, it may look at its own records and proceedings in that action in order to understand the nature of the later application. I cannot accept it establishes a wider principle than that. I certainly do not read it authority that a party can circumvent the normal rules of evidence whenever any court case or document is to be proved.

I would also need to be persuaded that the rule in Craven v Smith is applicable in Tonga. Apart from matters of such general knowledge that they need no proof, the matters of which the court may take judicial notice here are set out in section 36 of the Evidence Act. That section gives no authority to the court to take notice of its own proceedings without proof unless they are admitted facts.

I accept that a court may in some circumstances take judicial notice even of matters that are not notorious and which require further inquiry or research by the judge but the court must be very careful not to take judicial notice of facts requiring proof by evidence in the normal way and thus remove a party's obligation to produce it.

However, despite the reference to judicial notice, that is not what counsel is, in fact, inviting the court to do. What the prosecution is asking is that, if the court does not have sufficient evidence of the civil action to support the allegations in the Notice of Motion, it should remedy that by calling for the record to be produced of its own motion. That is a very different matter. I have no doubt that it would not be proper for the court to call for evidence, in any criminal matter, in order to fill a lacuna in the prosecution case.

The final matter is whether the defendants, having filed affidavits in reply to the Notice of Motion, are entitled to submit that the evidence to support the charges is insufficient to require them to show cause before the court considers their affidavits.

It is well established that all contempt proceedings are criminal in nature. Clearly special rules apply because of the need to deal quickly with many such cases. That is the reason why, despite the unlimited powers of punishment, summary procedure is used even though it deprives the defendant of jury trial. However, I cannot accept that the court is otherwise entitled to erode the rights normally enjoyed by any person accused of a criminal offence.

Criminal trial procedure ensures that no man need prove his innocence and it is therefore a cornerstone of our justice system that he need do nothing until the prosecution has produced sufficient evidence to establish its charge. It is only then that he need, if he so wishes, to make a defence. It is clear that it is his decision whether or not to make a defence in contempt proceedings because he is not a compellable witness; Comet Products UK Ltd v Hawkex Plastics Ltd (1971) 2 QB 67 at 75-6.

My researches have given me no assistance as to the stage in the proceedings at which the prosecution must demonstrate sufficient evidence in support of its allegation. Under the English Rules, it must be sufficient at the time of the initial application. As I have already stated, that is not the practice here and it was not the procedure followed in this case. I cannot accept that, under either system, the procedure is intended to deprive the defendant, beyond the requirement of summary trial, of any other right he would otherwise have in criminal proceedings. I am satisfied the defendants have the right to challenge the sufficiency of the evidence produced to the court before they need to make their own defence.

In this case, I rule that the prosecution, by failing to produce the pleadings or other sufficient evidence of the civil proceedings in the case of Edwards v Moala and Tapueluelu, has failed to establish a sufficient case for the defendants to answer.

The charge of contempt is dismissed.

NUKU'ALOFA: 5th June, 2001.

CHIEF JUSTICE