Augerea v Kelola [2014] PGNC 17; N5582 (1 May 2014)

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CONTEMPT – disobedience contempt –failure to comply with court order that required images of persons published to be frosted; unfrosted images published – whether the order was clear and unambiguous – whether order served on contemnors – whether contemnors failed to comply – whether failure to comply was deliberate.

The National Court made an order allowing five media personnel, including the first defendant, to be members of a court party that was to conduct a site visit of a regional processing centre that was accommodating transferees, subject to various conditions including that, though they were permitted to take photographs, "all images published must be frosted or otherwise published in a way that preserves the identity of transferees and staff of the centre". The first defendant participated in the site visit and took photographs. Three days later the first defendant's employer, the second defendant, the publisher of a daily newspaper with nationwide distribution, published in its newspaper a news story and photograph, carrying the first defendant's byline, regarding the site visit. The photograph contained un-frosted images of at least six transferees. Two days after the publication, the Registrar, acting on direction from the Court, commenced proceedings against both defendants, charging each of them with contempt of court on the ground that each of them had disobeyed the order. Both defendants pleaded not guilty so a trial was held.

Martin Kenehe v Michael Pearson (2009) N3763
Mathew Michael v John Glengme & Isaac Gladwin (2008) N3429
Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447
Ome Ome Forests Ltd v Ray Cheong (2002) N2289
Peter Luga v Richard Sikani and The State (2002) N2286
Richard Sikani v The State and Peter Luga (2003) SC807
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
Sr Diane Liriope v Dr Jethro Usurup (2009) N3572
The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303

1. CANNINGS J: The first defendant Todagia Kelola is a journalist with the Papua New Guinea Post-Courier newspaper. The second defendant South Pacific Post Ltd is the publisher of that newspaper. They have each been charged with contempt of court arising out of the publication of a photograph in the Monday 24 March 2014 edition of the Post-Courier. They pleaded not guilty so a trial has been held and this is the Court's decision on verdict.

2. The photograph was of a group of at least six transferees (also known as asylum seekers) accommodated at the Manus Island Regional Processing Centre. The first defendant took the photograph at the Centre three days previously, on Friday 21 March 2014, when he was a member of the Court party that conducted a site visit to the Centre as part of a National Court inquiry (HROI No 1 of 2014) regarding the circumstances of the alleged detention of the transferees. I was the Judge constituting the National Court when on 21 March 2014 I made an order at Lorengau allowing five media personnel, including the first defendant, to be members of the court party, subject to various conditions including that, though media representatives were permitted to take photographs:

all images published must be frosted or otherwise published in a way that preserves the identity of transferees and staff of the centre.

Freedom please. ASYLUM seekers at the Manus detention centre had the rare opportunity to express their feelings when National Court judge Justice David Cannings led a team into the centre last week as part of an inquiry into their conditions. The Supreme Court has put a temporary stop to the inquiry on Monday. Picture: TODAGIA KELOLA

4. The images of the transferees in the photograph were not frosted. This meant that their identity was not preserved.

5. On 26 March 2014 the plaintiff, the Registrar of the National Court, Mr I V Augerea, acting on direction from the Court under Order 14, Rule 47(1) of the National Court Rules, commenced these proceedings by originating summons against both defendants, charging them with contempt of court on the ground that they had, by publishing or facilitating the publication of un-frosted images of transferees, breached the order of 21 March 2014, thereby presenting a real risk of interference with the due administration of justice.

6. The plaintiff has charged the defendants with committing a 'disobedience' contempt. To prove the charge, the plaintiff must prove three things:

7. Contempt of court is a criminal matter and the plaintiff must prove the existence of the three elements beyond reasonable doubt. If all elements are proven against either defendant, that defendant will be guilty and I will hear the parties on the question of punishment (Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533; The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303; Peter Luga v Richard Sikani and The State (2002) N2286; Ome Ome Forests Ltd v Ray Cheong (2002) N2289; Richard Sikani v The State and Peter Luga (2003) SC807; Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447, Martin Kenehe v Michael Pearson (2009) N3763).

8. Yes it was. The order was pronounced orally and put in writing. The defendants concede that this element has been proven.

9. Yes it was. The first defendant was in court at Lorengau on 21 March 2014 when the order was pronounced orally. He was at that time the second defendant's representative in Lorengau. For all intents and purposes the order was, at the time it was pronounced, served on both defendants. The defendants concede that this element has been proven.

10. As I indicated in Sr Diane Liriope v Dr Jethro Usurup (2009) N3572 this element gives rise to three issues:

11. Yes. There can be no dispute about this. The images of the transferees were un-frosted and allowed them to be easily identified. The defendants concede this.

13. They rely on four affidavits admitted into evidence to argue that neither of them failed to comply and, in the event that either of them is held to have failed to comply, that the failure was not deliberate. The four affidavits, allotted exhibit numbers C1 to C4, are summarised in the following table.

C1	Rajeev Sharma		Chief Financial Officer & Company Secretary, South Pacific Post Ltd
Evidence: He has no input in the editorial content of the newspaper – he informed the court, as company secretary, that the second defendant unreservedly apologises for the error in publishing the photo whereby faces of the persons shown were not frosted or in any other way disguised to preserve the identity of the persons shown.
C2	Todagia Kelola		First defendant, journalist, South Pacific Post Ltd
Evidence: He heard and understood the condition of his accompanying the court party, that "all images published must be frosted or otherwise published in a way that preserves the identity of transferees and staff of the centre" – he took various photographs during the site visit – he returned from Manus on Sunday 23 March 2014 and went straight from the airport to the newsroom – he requested the Chief Photographer to download all pictures from his camera to his special folder, to which there is restricted access, and that request was carried out – at 5.00 pm he met with the Night Editor, Lawrence Fong, in the presence of the Chief of Staff, Michael Misse, and told him "there is a court order that the pictures of the staff and transferees at the Centre must be frosted" and that "the Judge ordered that reporters could accompany the court party to the Centre on the condition that the identity of staff and transferees could not be identified – he drafted an article and selected three photos and emailed them to Mr Fong, then said to him "I have sent you the pictures and the story. Don't forget to frost the faces of the transferees and staff" – Mr Fong responded "Don't worry" – he then left the newsroom – when he saw the paper on 24 March 2014 with the page 3 photo he was really upset and went to see the Editor-in-Chief Alex Rheeney and expressed his disappointment that his instructions as to frosting the faces of people had not been complied with – he was there when the order was made "and what had been published was not of my doing" – he sincerely apologised to the Judge for the way that the photo had been published – it was never his intention for the photo to be published without frosting – he had no intention of defying the order of the court – he is very saddened that the photo was published in that way by the Post-Courier.
C3		Lawrence Fong	Editor, South Pacific Post Ltd
Evidence: He was the Night Editor on 23 March 2014 – he checks the paper for things such as spelling errors, mistakes in grammar, headings and general layout – he is concerned with the format of the paper – he does not rewrite articles – the first defendant came to him at 5.00 pm, stating "I am going to hand in the article on Manus Asylum Seekers. You have to hide the faces of the subjects in the picture" – later, he and the first defendant selected three pictures to consider for publishing – he was under a lot of pressure to meet printing deadlines, the first at 8.30 pm, the next at 11.30 pm – before he left the newsroom the first defendant reminded him to obscure the faces of the persons in the picture accompanying the article on the asylum seekers – he intended using computer software to obscure faces – he did not have a copy of the order and "completely forgot" to obscure the faces – "I am truly sorry about that. I just forgot in the pressure to publish and meet the deadlines".
C4		Alexander Rheeney	Editor-in-Chief, Post-Courier
Evidence: He and the management of the Post-Courier are very sorry that the page 3 photo showed the faces of people at the Centre such that those people could be identified – since publication he has been informed of the oral order of 21 March 2014 made by the Court at Lorengau and he has met with the Managing Director, Kevin Smith, and has been informed by him and believes that none of the management knew of the oral order prior to publication of the photo – he believes that the only staff who knew of the oral order were Lawrence Fong and the first defendant – after 24 March 2014 he met with staff about the management's concerns over the mistake in publishing the photo – a process will be put in place to ensure that such a mistake is not repeated – the staff now clearly understand the need to comply with court order – another photo taken at the Centre was published in the 26 March 2014 edition, which contained frosted images – the second defendant maintains its defence but unreservedly apologies for the mistake by its staff in publishing the photo.

14. The plaintiff takes no issue with any of that evidence. That is a sensible approach to take as the evidence is uncontroverted and appears to be a reasonable account of what transpired. I accept the evidence and make the following findings of fact:

15. Mr Neill, for the defendants, submitted that the first defendant could not be said to have failed to comply with the order as he was well aware of the order and understood it and did all that he could to ensure that the order was complied with. He twice told Mr Fong that the facial images of the transferees were to be frosted and that this was important to preserve the identity of the transferees and comply with the court's order. If a contemnor (a person charged with contempt) does all in his power to comply with a court order and is prevented from doing anything else by the conduct of another, he cannot be said to have failed to comply (Mathew Michael v Provincial Education Adviser (2008) N3429).

16. The second defendant could not be said to have failed to comply as none of its directors or officers knew about the order. Only two of its employees the first defendant and Mr Fong) knew about the order.

17. Mr Hagahuno, for the plaintiff, submitted that it was significant that the first defendant gave no written instructions to Mr Fong, so the court should hesitate before accepting fully the first defendant's evidence.

18. If the court accepts the evidence provided, Mr Hagahuno submitted that it still amounts to not doing enough. He submitted that journalists who are aware of a court order that prevents publication of something have a duty to communicate fully with others in the organisation to ensure that court orders are fully complied with.

19. As for the first defendant I uphold the plaintiff's arguments as to the duty of a journalist who becomes aware of a court order involving some sort of restriction on what can be published by his media organisation or the manner in which publication can be made, to communicate fully and adequately to those in the organisation who physically control the process of publication. The message must be clearly conveyed and, not only that, the journalist to whom the order was conveyed by the court, must ensure that the order is adhered to by the persons in his organisation who are in a position of physical control. The first defendant facilitated publication of the unfrosted images of transferees enabling disclosure of their identities.

20. I do not accept Mr Neill's submission that the first defendant did all he could. He could have stayed back at work, rather than leaving the newsroom after Mr Fong gave him his assurance that his instructions would be adhered to, and then made doubly sure – if necessary by waiting until the first copy of the morning's paper rolled off the press – by physically checking that facial images of all transferees were frosted. He was not prevented by Mr Fong from doing that, so he was not in the same position of the contemnor in Michael's case who was unable to do any more to comply with the court's order.

21. This was a very important order to comply with. The importance of preserving the identity of the transferees should have been well known to the first defendant. It was raised in the court proceedings in Lorengau, which he was reporting on. It is well recognised that it is necessary to preserve the identity of persons seeking asylum – unless the person consents to his identity being disclosed – in order to minimise the risk of reprisal against their family members or associates in the country which they have left. The court's decision to allow media into the Centre was no small matter. It was therefore reasonable to expect, and necessary, that the first defendant would do everything within his physical power to ensure compliance with the court order.

22. I find it proven that the first defendant failed to do everything reasonably expected and required of him. He therefore personally failed to comply with the order.

23. As for the second defendant, it published the unfrosted images and, by that act alone, failed to comply with the court order. It clearly had inadequate internal control measures in place to deal with the situation that developed in the newsroom on the night of 23 March 2014. It was bound by the order of 21 March 2014. It had knowledge of the order by virtue of its employee, the first defendant, being present in court when the order was pronounced. He was the second defendant's representative. He passed on his knowledge of the order to Mr Fong and clearly instructed Mr Fong on what was required. Both of them are employees of the second defendant, which is bound by their conduct.

24. The second defendant is bound by the first defendant's failure to take all reasonable steps to ensure that the order was complied with. It is bound by Mr Fong's blunder. It is accountable for its own failure to have internal control measures in place to ensure that court orders imposing restrictions on what can be published are adhered to. It is proven that the second defendant failed to comply with the order.

25. I repeat that I accept the defendants' evidence. I make the following finding of fact relevant to the deliberateness of the defendants' conduct.

26. Mr Neill submitted, relying on the National Court decision of Kandakasi J in Ome Ome Forests Ltd v Ray Cheong (2002) N2289, that it is essential for the plaintiff to prove that the defendants intended to disobey or flout the order of the court. There must be fault or misconduct proven against the defendant. It must be wilful disobedience. The law of contempt is not intended to criminalise conduct that is casual, accidental or unintentional

27. In the case of the first defendant, he clearly did not intend to flout the order. He understood the importance of the order and made a genuine attempt to see that it was complied with. He therefore cannot be guilty of contempt.

28. The second defendant did not form any intention of disobeying the order as none of its directors or officers knew about the order. Only two of its employees (the first defendant and Mr Fong) knew about the order.

29. Mr Hagahuno, for the plaintiff, submitted that neither defendant should be excused from responsibility by shifting the blame to Mr Fong. Both defendants should be convicted of contempt. If the first defendant is found not guilty, the second defendant should nonetheless be convicted as the court's order was disobeyed and this was because of the actions or omissions of its employees, for which the second defendant must be responsible.

30. I do not accept that what has to be proven, in order to establish the deliberateness of the disobedience, is a conscious intention on the part of a defendant to disobey the court's order. Reckless or careless disregard to the requirements of a court order is in my view sufficient. I acknowledge that in Ome Ome Kandakasi J stressed the importance of proving a deliberate intention to disobey. I am not bound to adopt that approach and if that is what his Honour was actually deciding I respectfully decline to follow that approach. I agree that if by pure accident a court order were disobeyed the deliberateness element would not be complied with. But where it is within the physical power of a defendant to comply and insufficient steps are taken to comply and it is not a case of a pure accident, that is sufficient.

31. I reiterate that it was within the physical power of the first defendant to ensure that the order was complied with. He failed to take all reasonable steps to prevent publication of un-frosted images of transferees. He made the conscious decision to leave the newsroom and leave the matter in the hands of Mr Fong. That was a big mistake. He left the matter in the hands of someone who was under a lot of pressure and who proved incapable of remembering what had to be done. I agree with Mr Hagahuno that the first defendant cannot use Mr Fong as the fall guy. Mr Fong appears willing to accept all the blame. He can afford to do that, as he has not been charged. But his readiness to accept the blame does not provide the first defendant with a defence.

32. I find it proven that by his deliberate failure to do what was necessary, the first defendant deliberately failed to comply with the order. He is accordingly guilty of contempt as charged.

33. The second defendant cannot escape criminal responsibility by saying that its directors and other officers did not know of the order. That is irrelevant. Two of its employees knew of the order and what the order required. The second defendant is bound by their conduct, including their negligent acts or omissions. It must also be regarded as having deliberately failed to comply with the order. The second defendant is also guilty of contempt, as charged.

Verdicts accordingly.
_______________________________________
Williams Attorneys: Lawyers for the Plaintiff
Ashurst Lawyers: Lawyers for the Defendants

National Court of Papua New Guinea

Augerea v Kelola [2014] PGNC 17; N5582 (1 May 2014)