N10090
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 758 OF 2021

STATE

V

BHOSIP KAIWI
(No 3)

Waigani: Wawun-Kuvi, AJ
2022:  3rd August & 6th December

CRIMINAL LAW AND PROCEDURE – Application to restrict Media- Order 8 Rule 8, Criminal Practice Rules 2022-Control of Publication of Proceedings in the interest of justice pursuant to the inherent powers of the Court

An indictment was presented charging the accused with count of murder under section 300(1)(a) of the Criminal Code. The media has been following and reporting the trial. Following the calling of evidence, the National Newspaper published the evidence of witnesses in verbatim.
The accused has taken issue to the publication and has asked the Court to use its inherent powers and take control of its proceedings by issuing orders restraining the publication of the evidence.

Held:

1.	Order 8, rule 8 of the Criminal Practice Rules 2022 (Rules) give effect to ss 37 (12) and 37 (13) of the Constitution. These are the pertinent provisions that address the Court’s power to make orders limiting access by the public to and publicity of proceedings.

2.	Order 8 rule 8 (2) of the Rules sets out the relevant considerations when the Court considers whether to restrict or limit access by the public or publicity of the proceedings. 

3.	The Application is premised on 8 Rule 8(2)(c) of the Rules, that is, the Court must control its proceedings by restricting the media publications of evidence in verbatim, because the publicity would prejudice the interest of justice.

4.	The State has taken a neutral position and does not share the same concerns as the Defence. It maintains that any effects of publication can be cured by effective cross examination

5.	Determination of whether the restrictions should be imposed is determined upon whether there is any prejudice to the accused.

6.	The position that the unfairness or prejudice follows from the possibility that State witnesses will read each other’s evidence and consequently fabricate or tailor each of their evidence is speculative at its highest.

7.	There is no material before the Court that demonstrates that the Court is not able to control its own proceedings.

8.	There is very little material before the Court that demonstrates the accused will be prejudiced by the publication of the evidence.

9.	The Application is refused.

Cases Cited

Kramer v O'Neill [2020] PGSC 93; SC2004 
Namah v Pato [2013] PGSC 84; SC1305 
Kambanei v National Executive Council [2006] PGNC 7; N3064 
Maino v Avei [1998] PGNC 57; N1733 
Ex Parte Rowan Callick and Joe Koroma [1985] PNGLR 67 
Public Prosecutor v Rooney (No 2) [1979] PNGLR 448
Public Prosecutor v Rooney (No 1) [1979] PGLawRp 403 

Reference

Constitution of the Independent State of Papua New Guinea
Criminal Code (Ch 262)
Criminal Practice Rules 2022

Counsel

Ms Elizabeth Kave & Ms Violet Ningakun, for the State
Mr Emmanuel Ellision, for the Defence
RULING

6th December, 2022

1.	WAWUN-KUVI, AJ:  The accused (applicant) filed a Notice of Motion on 27 July 2022 seeking restrictions on the media in reporting his trial. The Motion relies on sections 37(1), 37(3), 37 (12), 57, 155(4) and 185 of the Constitution and states that without the restrictions the proceeding is likely to be prejudiced.

2.	The applicant relies on affidavits filed in separate legal proceedings not related to the criminal trial. These materials are not before the Court and counsel for the applicant, is with respect, misconceived to assume that the Court can have recourse to such material.

3.	In my determination, I rely only on the affidavit filed in support of the motion by Emmanuel Ellison dated 27 July 2022.

4.	The motion seeks the issuance of certain restrictions on the media. Mr. Ellison attaches several media publications and at paragraph 34 states that the publication of evidence in verbatim creates a reasonable apprehension of unfairness and a real likelihood of an unfair trial.

5.	His submissions at paragraphs 9, 10 and 11 identify the issue as the printing of the evidence in verbatim.
 
6.	Submissions by both counsel for the Applicant and State Respondent are disjointed and were difficult to follow. 

7.	Neither counsel have considered or put their minds to Order 8, rule 8 of the Criminal Practice Rules 2022 and or properly considered and addressed Section 37 (12) and 37 (13) of the Constitution. These are the pertinent provisions that address the Court’s power to makes orders limiting access by the public to and publicity of proceedings.

8.	Order 8 Rule 8 (1) and (2) of the Rules is in the following terms:

“(1) 	The Court may order that access by the public to the proceedings or that publicity of the proceedings, including in the mass media and on social media, be prohibited or limited, pursuant to any specific law, including the Evidence Act or the Juvenile Justice Act, that provides for or requires such prohibitions or limitations to apply.

(2)	The Court may order that access by the public to the proceedings or that publicity of the proceedings, including in the mass media and on social media, be prohibited or limited, pursuant to the inherent power of the Court to control its own proceedings and having regard to ss 37(12) and 37(13) of the Constitution and the general principle that court proceedings be held in public, and accordingly shall only make such orders when it is considered necessary or expedient after taking account of all relevant considerations including whether such an order would:

(a)       be agreed to by the parties to the proceedings;
(b)       be in the interests of national security;
(c)       be in the interests of justice;
(d)       advance the welfare of persons under voting age;
(e)       protect the private lives of persons concerned in the proceedings; and 
(f)  be in the interests of defence, public safety or public order.
(3) ……..”

9.	Order 8 rule 8 subrules (1) and (2) give effect to sections 37 (12) and 37 (13) of the Constitution. Essentially, all Court proceedings are public subject to the Court being satisfied of the existence of one or more of the above considerations.

10.	 From the general form of the motion and the submissions by Mr. Ellison it appears that orders for restriction of the media are sought pursuant to Order 8 Rule 8(2)(c) of the Rules.  That is, the Court must control its proceedings by restricting the media publications of evidence in verbatim, because the publicity would prejudice the interest of justice.

11.	The State appears to take a neutral position but concludes in its submission that there is no prejudice, and any effects of publication can be cured by effective cross examination. The State, in effect does not share the same concerns as the defence. 

12.	As a starting point, the question as to whether the restrictions on what may be published is a matter of discretion for the Court, to be determined having regard to the interests of justice and the interest of the accused.

13.	    The following rights are not in dispute:

1.	The trial of the accused must be conducted fairly by an independent and impartial Court under section 37 (3) of the Constitution.
2.	The freedom of press and mass media communication is enshrined under section 46 of the Constitution.
3.	The proceedings of any Court in any jurisdiction are to be conducted in public: section 37(12) Constitution
.
14.	The Court in controlling its proceedings balances these conflicting rights and principles.

15.	Determination of whether the restrictions should be imposed is determined upon whether there is any prejudice to the accused?

16.	 Counsel must direct the Court to the prejudice and address how it would lead to an unfair trial. It appears from paragraph 36 and 37, that counsel submission is that the prejudice comes from State witnesses reading each other’s evidence and consequently fabricating or tailoring each of their evidence.

17.	This submission is speculative at its highest. Mr. Ellison speculates that witnesses may fabricate or tailor their evidence and assumes that in the event such circumstances arise, they cannot be cured by either effective cross examination or by the Court assessing the evidence based on established and relevant principles in law during the decision-making stage.

18.	There is very little in Mr. Ellison submission that points to the prejudicial effect on the applicant’s case.

19.	Both the State and Defence counsel submissions were disjointed and deviated from the issue of whether the printing of evidence verbatim is against the interest of justice.

20.	Counsels’ reliance on Public Prosecutor v Rooney (No 2) [1979] PNGLR 448, Kramer v O'Neill [2020] PGSC 93; SC2004 (28 September 2020) and Maino v Avei [1998] PGNC 57; N1733 (1 July 1998); Ex Parte Rowan Callick and Joe Koroma [1985] PNGLR 67 has no basis on the determination of the present issue.  The cases are factually distinct. These are cases related to contempt of court proceedings in which individuals have been accused of making comments or giving opinions on ongoing court proceedings.

21.	Counsels’ submissions to the publications as being sub judice are also misconceived. The sub judice rule relates to the punishment of publications designed to affect the impartial nature of the legal proceedings, by taking a stand about the issues involved in the case: see Public Prosecutor v Rooney (No 1) [1979] PGLawRp 403 per Kearney J.
 
22.	Here, the articles attached as “MB1” to “MB5” do not express any comments or opinions. There is no invitation to the public to comment. The reporter basically reports on what has transpired in Court albeit verbatim in most parts. I find difficulty in accepting that the articles offend the sub judice rule.

23.	The present issue is not one of sub judice but rather whether there is any prejudice to the accused.
 
24.	The Supreme Court in Namah v Pato [2013] PGSC 84; SC1305 (18 December 2013), held that there is no rule of law – in the sense of a blanket prohibition – that says that once a matter is before the court, persons in the community cannot comment on what is before the court.

25.	Whilst the decision is in relation to comments by a lawyer, which is not the question here, I adopt and pose similar questions:

(1) 	Whether the material published presents a real risk and not a mere possibility of affecting a fair trial; and
(2) 	Does it have the effect of influencing the Court.

26.	There is no evidence that there is a real risk and Counsel has not addressed how the publishing of the evidence verbatim would have any influence on the Court. Even if it was addressed it seems so remote.

27.	Presently, there is no material before the Court that demonstrates that the accused will be prejudiced by the publishing of the evidence in verbatim or that the Court is not able to control its proceedings to ensure that the accused receives a fair trial.

28.	I adopt the statement by Injia DCJ (as he then was) in Kambanei v National Executive Council [2006] PGNC 7; N3064 (10 April 2006) in response to an application to restrict publications:

“ …..The Court has total control of the conduct of proceedings in Court in a matter before it. It is an open court and subject to availability of courtroom space, the public including the media is free to attend and report on proceedings except in those cases where the Court is conducting proceedings in camera. The public is those who attend Court proceedings. The nominal public outside the courtroom I suppose is represented by the media. The general public has the right to have access to that information. The media in PNG plays an important role in the dissemination of Court information to the public…….."

29.	    The Notice of Motion of the accused filed on 27 July 2022 is refused.
________________________________________________________________
The Public Prosecutor: Lawyer for the State
Luther’s Lawyers: Lawyer for the Defence