[1969-1982] NLR (A) 136

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No. 1 of 1978

The Republic

v

Deigob Bill

26th September, 1978.

Contempt of Court - section 34 of the Courts Act 1972 - whether ultra vires the Constitution

Contempt of Court - whether District Court has power to deal with otherwise than under section 34 of the Courts Act 1972.

The respondent, a doctor, apparently failed to obey an order of the resident magistrate, made in proceedings in the District Court, to go and find his medical notes so that he could answer questions put to him in cross-examination. The resident magistrate then ordered him to attend before the District Court and to show cause why he should not be committed to prison for contempt of court. By the date on which his attendance before the Court was required, the resident magistrate had ceased to hold office as such and a new resident magistrate had been appointed. Upon the matter coming on for hearing there was doubt whether the District Court had jurisdiction to deal with it. It was then transferred to the Supreme Court under the provisions of section 38 of the Courts Act 1972. The questions in respect of jurisdiction which the Supreme Court had, to decide were:

(1) Is section 34 of the Courts Act 1972 totally or partly ultra vires Article 5 or Article 10 of the Constitution?

(2) Does the District Court have any power to deal with contempt otherwise than as provided for by section 34 of the Courts Act 1972?

Held: 
(1) The provisions of section 34 of the Courts Act 1972 are not per se ultra vires the Constitution; but in some cases it may be impossible for the District Court to take action under that section without acting ultra vires the Constitution.

(2) The District Court has no power to deal with contempt of court otherwise than under section 34 of the Courts Act 1972.

R.J. Hooker for the Republic
R. Kun for the respondent

Thompson, CJ:

On 28th July, 1978, a preliminary inquiry into an offence of manslaughter was held by the District Court. The alleged contemnor, Deigob Bill, is a doctor. He was a witness at the preliminary inquiry. He was unable to answer certain questions put to him in cross-examination; he needed his medical notes to be able to do so. He was told by the magistrate, Mr. Whitcombe, to go and get them. He returned and told the Court that he could not find them. He was eventually sent with a police officer to make a better search for them. As the result of that search they were found. In consequence of certain answers given by Dr. Bill to the Court, the magistrate formed the opinion that he had deliberately disobeyed his original order to make a search for the notes. He then ordered Dr. Bill to attend before the Court on 7th August, 1978, to show cause why he should not be committed for contempt of Court. By that date

Mr. Whitcombe had ceased to hold office as magistrate and Dr. Bill came before a newly appointed magistrate, Mr. Maxwell. It seems likely (although it is not expressly stated in the record) that the reason why Dr. Bill was ordered to attend on 7th August and not dealt with sooner was that Mr. Whitcombe considered that the principle of impartiality should be clearly seen to be observed.

It is not clear from the record whether the order of 28th July was made in purported exercise of the District Court's powers under section 34 of the Courts Act 1972 or in purported exercise of powers under the common law. On 7th August the Secretary for Justice appeared for the Republic and asked Mr. Maxwell to consider transferring the proceedings, under section 38 of the Courts Act 1972, to this Court for the determination of certain questions relating to the powers of the Courts of Nauru under the Constitution. Those questions, although never clearly formulated in the District Court, appear to be –

(1) Is section 34 of the Courts Act 1972 totally or partly ultra wires Article 5 or Article 10 of the Constitution?

(2) Does the District Court have any power to deal with contempt otherwise than as provided for by section 34 of the Courts Act 1972?

In order to answer the second question it is necessary to consider two further questions-

(a) Is contempt of Court an offence which is defined by law?

(b) Does the District Court have an inherent power to deal with contempt or a power to do so derived from any written law other than section 34?

Section 34 is as follows:

"34. (1) If any person -

(a) wilfully insults a magistrate or any witness or any officer of the District Court during his sitting or attendance in court, or in going to or returning from court;

(b) wilfully interrupts the proceedings of the District Court or otherwise misbehaves in court; or

(c) wilfully and without lawful excuse disobeys any order or direction of the District 'Court in the course of the hearing of any proceedings;

the Clerk, with or without the assistance of any police officer or other person, may, by order of the magistrate

The Clerk, with or without the assistance of any police officer or other person, may, by order of the magistrate having charge of the proceedings in court, take the offender into custody and detain him until the rising of the Court and the magistrate having charge of the proceedings in. court may, if he thinks fit, by warrant under his hand, commit the offender to prison for any period not exceeding ten days or impose upon the offender a fine not exceeding fifty dollars for each offence.

(2)Any person aggrieved by an order of a magistrate under this section may appeal against it to the Supreme Court within fourteen days of the order being made and the provisions of the Appeals Act 1972 relating to bail pending the hearing of an appeal from the District Court following conviction shall apply mutatis mutandis.

(3)The Supreme Court shall have the same powers to deal with contempt of the authority of the District Court as it has to deal with contempt of its own authority."

At common law superior courts have an inherent jurisdiction to punish contempt of their authority. Inferior, or subordinate courts do not have any such jurisdiction. In England the Court of King's Bench had an inherent jurisdiction at common law to punish acts constituting contempt of the authority of magistrates' courts. That jurisdiction is now assigned to the Queen's Bench Division of the High Court by section 56 of the Supreme Court of Judicature (Consolidation) Act 1925 (of England). By Article 48 of the Constitution this Court is established as a superior court of record, having such jurisdiction as is conferred on it by the Constitution and by other law. Section 17(2) of the Courts Act 1972 confers on it within Nauru "all the jurisdiction, powers and authorities", of the English High Court as they were on 31st January, 1968. Unless, therefore, punishment by this Court of contempt is ultra vires Article 5 or Article 10 of the Constitution, this Court has jurisdiction to punish 140contempt of subordinate courts. The District Court, by virtue of Article 56 of the Constitution, has only the jurisdiction and powers prescribed by law. As the common law does not give subordinate courts an inherent jurisdiction to punish contempt of their authority, the District Court has only such power to do so as is conferred on it by written law. The only written law conferring on it such power is section 34 of the Courts Act 1972. So the District Court has no other jurisdiction to punish contempt of its authority.

In two recent cases, one in England (Balogh v. St. Albans Crown Court (1975) .1 Q.B. 73) and the other in New Zealand (Solicitor-General. v. Radio Avon Ltd. (1978) 1 NZLR 225), attention has been drawn to the fact that at common law there are three ways in which contempt of court may be dealt with, summarily, by motion to commit to prison and by indictment. The third way is now rarely, if ever, used. The first, as Lord Denning, MR., pointed out in Balogh, is to be used only where, if prompt action to deal with the contempt is not taken, the proceedings of the Court concerned will be frustrated or seriously disrupted or delayed. The normal way should be the second.

When section 34 of the Courts Act 1972 is read against that background, it is apparent that it confers on the District Court only power to deal summarily with contempt of its authority consisting of acts falling, within the limits of subsection (1)(a), (b) and (c). No jurisdiction is given to the District Court to deal with contempt of its authority in any other way; jurisdiction to do that is conferred by section 34(3) on this Court. The question then arises whether the summary procedure for which section 34 provides - and which is broadly the same as the summary procedure at common law referred to by Lord Denning MR. in Balogh, is ultra vires Article 5 or Article 10 of the Constitution.

Article 5(1) (a) of the Constitution exempts from the general prohibition of deprivation of personal liberty such deprivation in execution of the sentence or order of a court in respect of an offences of which the person has been convicted. Article 10(1) prohibits conviction of offences which are not defined by law. In view of the terms of section 34(l) (a), (b) and (c) it cannot be said that the offence for which it provides is not defined by law. What is provided for is broadly that species of the common law offence of criminal contempt of court which the Courts in common law countries have generally regarded as suitable to be dealt with summarily. At common law criminal contempt of court is a criminal offence (Attorney-General v. Butterworth (1963) 1 Q.B. 696). Section 34 provides for the punishment of the conduct set out in subsection (1)(a), (b) and (c). I have no doubt, therefore, subsection (1) creates an offence defined by law. Although no express provision is made in section 34 for the formal recording of a conviction, its provisions are capable of a construction which is not inconsistent with or repugnant to the Constitution. That is to say, an offence is created and power given to punish those who commit it. It would be ultra vires the Constitution for the Court not to give the alleged offender an opportunity to defend himself, or not to consider the facts impartially, or to send him to prison without first making a finding of fact as to his guilt. (Indeed, in England that is required by the common law.) Section 34 does not provide for any of that, it is simply silent on those matters. But it must be construed as requiring that the Constitution be complied with. When so construed it is not ultra vires the Constitution.

Article 10(2) requires that a person charged with an offence be afforded a fair hearing by an independent and impartial court. Article 10(3)(c) and (e) require that he given adequate time and facilities for the preparation his defence and that he be permitted to defend himself by d legal representative of his own choice. The mere fact that person is alleged to be in contempt of the authority of a court does not necessarily cause that Court to cease to t may possibly do so; it is a question of fact in every instance. Similarly, it is question of fact whether a brief adjournment of half an hour, an hour or several hours is adequate time for' the alleged offender to prepare his defence and to make arrangements for legal representation if he wishes. For instance, if a person deliberately disrupts proceedings in court by shouting and singing in the courtroom, and if a number of legally qualified persons are readily available in court or within easy call to appear on his behalf, an adjournment of one hour would in most instances be quite adequate and the Court would not be in breach of Article 10 if it proceeded to deal with the matter at the end of that time.

It is apparent, therefore, that the provisions of section 34(1) are per se not inconsistent with or repugnant to the Constitution. In some cases it may be impossible for the District Court to take action under section 34(1) without acting ultra vires the Constitution; but that will depend on the facts of the case. As Lord Denning, MR., commented in Balogh, the occasions on which courts can properly deal summarily with contempt are few and infrequent. Unless immediate committal of the offender is necessary to enable the proceedings before the Court to be properly completed without improper disruption, the power should not be used.

At this point it is appropriate to refer to the procedure adopted in the present case. Mr. Whitcombe clearly did not consider that it was necessary to deal with the alleged contempt forthwith; it had allegedly caused the Court delay but was not going to have any further disruptive or delaying effect on the preliminary inquiry. It was not a contempt which ought to have been dealt with summarily. By adjourning the matter ten days the magistrate indicated that he did not consider that it required to be dealt with summarily. That being so, he could not properly deal with Dr. Bill under section, 34(1). Whether-he was purporting to do so is not clear. But the District Court had no other taken by Mr. Whitcombe was misconceived and must be regarded as a nullity. He should have reported the matter to this Court for this Court to deal with in exercise of its powers under section 34(3), which expressly confers on this Court powers already conferred on it in general terms by section 17(2) of the Courts Act 1972.

Because the District Court has no jurisdiction to deal with contempt of court except that conferred on it by section 34, it is not necessary to decide whether contempt of court is an offence defined by law. After hearing the arguments in support of that proposition advanced to this Court by Mr. Hooker, I am inclined to the view that it is. That question will, however, have to await decision when proceedings are brought in this Court against an alleged contemnor.

It appears that the appropriate course to take in this case is to declare that the proceedings transferred to this Court are a nullity, having been commenced in the District Court without jurisdiction. If the resident magistrate, upon due consideration, considers that further action in the matter is required, he should formally report the matter to this Court to be dealt with by this Court. However, having read the record of the proceedings at the preliminary inquiry and in view of the offer of apology made to this Court on behalf of Dr. Bill by Mr. Kun, I suggest that the resident magistrate may wall see fit to accept the apology and take no further action in the matter.

Before concluding this decision I must pay tribute to the full, well researched and clearly presented arguments of Mr. Hooker which were of considerable assistance to this Court.

The proceedings commenced in the District Court are declared to be a nullity.