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Director of Public Prosecutions v Solomon Islands Broadcasting Corporation [1985] SBHC 26; [1985-1986] SILR 101 (25 October 1985)

[1985-1986] SILR 101

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 125 of 1985

DIRECTOR OF PUBLIC PROSECUTIONS

v

SOLOMON ISLANDS BROADCASTING CORPORATION

High Court of Solomon Islands
(Coventry, Commissioner)
Civil Case No. 125 of 1985

8th October at Honiara
Judgment 25th October 1985

Criminal contempt of court – test- whether reasonable criticism made in good faith or whether improper motives imputed with malice – Constitution s. 12 freedom of expression – whether protected by

Facts:

The Applicant sought attachment of the respondent for an alleged criminal contempt of court. The respondent had broadcast a statement by a Member of Parliament criticising the judiciary for a sentence given to a Minister convicted of embezzlement. The words complained of were –

“the Minister’s sentence and term in prison was hypocritical .... the judgment must have been pre-arranged ..... The MP called on the judiciary to abide by its principles of maintaining neutrality at all times.”

The respondent then broadcast an apology the next day.

Held:

1. Criticism, however vigorous, of a judgment of a court will not constitute a contempt if it is made in good faith and is reasonable, even though it contains error.

2. In exercising the right to criticise in good faith the administration of justice, however, the public must not falsely import improper motives to the judiciary and must not act out of malice or an attempt to impair the administration of justice.

3. Analysing the materials broadcasted in light of these rules, they clearly falsely alleged impropriety concerning the administration of justice.

4. A finding of contempt of a court does not infringe s. 12 of the Constitution, but rather falls into the proviso to that section which exempts from the general freedom of expression anything “done under the authority of any law ..... which .... makes provision .... for .... maintaining the authority and independence of the courts.”

5. The respondent did not act in good faith in that the respondent broadcasted obvious allegations of improper motives on the part of a magistrate without making any effort to check the truth of the allegations.

Accordingly, a criminal contempt was found.

(In assessing the penalty it was accepted that the respondent handles a large volume of materials without easy access to a lawyer and that the respondent acted without malice or improper motive but that due to its large audience the respondent must exercise a high standard of care. Accordingly, it was ordered that there be no penalty, but that an agreed on apology be broadcast and the respondent pay costs of $100).

Case considered:

McLeod v St. Aubyn [1899] UKLawRpAC 33; (1899) A.C. 549, PC

John Freeman for the Applicant
John Muria for the Respondent

Coventry Commissioner: This is an application by the Director of Public Prosecutions seeking the attachment of the respondent for an alleged criminal contempt of court.

The material complained about was contained in a news item broadcast by the respondent on Wednesday 2nd October at 12.30 p.m. and 6.30 p.m. in English and at 7 p.m. in Pidgin. The text of this broadcast is set out as Exhibit 2 to the affidavit of Jonathan Kim Roylance Stanford-Smith. He was the magistrate who dealt with the case in question although he was not specifically named therein.

On 3rd October the text of an agreed apology was broadcast at 12.30 p.m. During that afternoon the respondent sought to change the apology. This was not acceptable to Mr. Stanford-Smith. The apology was not broadcast again.

The Director of Public Prosecutions stated that the words in dispute constituted a criminal contempt and, as such, he had the locus standi to bring this action by virtue of section 91(4) of the Constitution.

The words complained of were “the Minister’s sentence and term in prison was hypocritical ... the judgment must have been pre-arranged .... The MP called on the judiciary to abide by its principles of maintaining neutrality at all times.”

The case in question concerned a Government Minister who pleaded guilty to a charge of embezzlement and who was sentenced to four months imprisonment.

The DPP argued that nothing was more likely to bring this Principal Magistrate into contempt. He said the judiciary as a whole was attacked by implication and that these words struck at the legal system and public respect for it. He pointed out this action was brought not for the personal reputation of the Principal Magistrate concerned, that could be met by a defamation action, but for a member of the judiciary.

The DPP accepted that, if the suggestions were true, then there could be no objection to the broadcast of them. However, he said no attempt had been made to say they were true, and no check whatever was made upon their truth before they were broadcast. On the face of it the words concerned were a contempt. In those circumstances he said publication could not have been made in good faith.

The DPP stated the courts are no more immune from reasonable criticism than anyone else. Indeed, some of the material in the broadcast fell within that category. He did not complain of such material, for example the criticism of the length of sentence and the comparison with the sentences passed on other public officers for similar offences. He said the words concerned went well beyond even vigorous criticism. He said they were untrue and imputed improper motives to those taking part in the administration of justice.

The DPP argued that, until a judicial system is firmly established, the courts must protect themselves at the limits of reasonable comment. He stated that the administration of justice in Local Courts and Customary Land Appeal Courts in Solomon Islands was suffering from precisely this form of attack. He foresaw the need, at least for some time, for this protection as more and more judicial posts were localised.

The Counsel for the Respondents did not dispute the wording of the broadcast nor the date and times thereof. He said that the contents of the broadcast cannot be said to amount to contempt or a scandalising of the court. He argued that the courts and their decisions are matters of public interest.

He said the Respondents, accepted there would be limits but those limits must not curtail the freedom set out in section 12 of the Constitution. He said to hold these words to be in contempt would limit the freedom set out in section 12.

Counsel pointed out the difficulty in cases of this kind in deciding whether particular words do or do not constitute a criminal contempt. He questioned how the layman is to protect himself if it takes lawyers and judges to decide the matter and even then differing opinions can be held.

He argued that in McLeod v St. Aubyn [1899] UKLawRpAC 33; [1899] AC 549, PC the words were far more serious, yet the Judicial Committee of the Privy Council held there was no contempt. This argument is clearly untenable. A perusal of the report of this case shows there was no doubt a contempt had been committed; the action failed on separate grounds.

Counsel for the Respondents stated the initiator of these remarks was speaking his opinion, albeit that the words ‘hypocritical’ and ‘pre-arranged’ went off the mark and gave it bad taste or inaccuracy. He said the words complained of did not go outside ‘the limit’. He stated an apology had been made. There was no intent of malice.

The Director of Public Prosecutions has brought this action as a criminal contempt. It is not disputed he has the locus standi to do so. In other jurisdictions it is more usual to see the Attorney General bringing actions such as these and it may be the Director of Public Prosecutions and Attorney General here in Solomon Islands can confer about this and formulate a policy for future reference.

The law is clear. Criticism however vigorous, of a judgment or a decision of a court will not constitute contempt of court, if it is made in good faith and is reasonable, even though it contains errors. It is the ordinary right of members of the public or the press to criticise in good faith in private or in public the public administration of justice.

However in exercising that right the members of the public must abstain from imputing improper motives to those taking part in the administration of justice and must genuinely exercise that right of criticism and not act out of malice or an attempt to impair the administration of justice.

It is important for any court when dealing with an allegation of contempt of this sort to take care that it is doing so to maintain the proper administration of justice and not just to protect a brother judge’s reputation or his decisions from bona fide criticism.

If allegations of improper motive have been made and they are substantiated then there cannot be a contempt of court. No such suggestions are made in this case.

The Respondents are in effect saying that the words concerned do not fall within the area of contempt, that their publication of them was made in good faith and the difficulty in distinguishing between words which do and do not constitute a contempt is such that if the mark has been overstepped they should not be criticised.

The principal phrase of which complaint is made is “the judgment must have been pre-arranged.” This phrase bears two allegations of impropriety. Firstly that the judgment must have been decided before the hearing. That is an allegation of a fact and a fact which if true would be a highly improper action on the part of any judge – that is deciding cases before hearing them. Secondly the use of the word ‘pre-arranged’ of necessity connotes the idea that it was not just the judge on his own who decided the case before hearing it but that he did so with one or more other persons. The innuendo, intended or not, is that it was directly or indirectly done with at least the defendant, a party political figure and a Government Minister. The phrase complained of is followed by “because the time allowed for Mr Tepaika (the defendant in the case) to repay the Government was four days before the hearing of the case.”

In my judgment, therefore, this phrase cannot be considered to be fair or even robust criticism. It goes well beyond that. It is clearly an allegation of impropriety concerning the administration of justice by this magistrate.

I turn to the second phrase of which complaint is made namely “Mr. John Ngina said the Minister’s sentence and term in prison was hypocritical.” This phrase standing on its own is virtually meaningless, and even coupled with the following two paragraphs cannot constitute a contempt.

However I find that when that phrase is placed within the present context it does assume a meaning, namely that the defendant concerned was sentenced to a particular term when the justice of the case demanded a longer sentence and that longer sentence was not passed for some improper motive.

The third phrase complained of is “The MP called on the judiciary to abide by its principles of maintaining neutrality at all times.” It would be difficult to find that this phrase on its own could constitute a contempt. However when it is found in an item alleging the pre-arrangement of judgments of necessity, it bears the innuendo that one or more members of the judiciary have departed from those principles and are being exhorted to return to or not leave them. This phrase like the second would probably be unobjectionable in the absence of the first. However when that first is present, they not only buttress it but gain objectionable meaning themselves.

I turn now to section 12 of the Constitution. The framers of that provision clearly had in mind, inter alia, the circumstances of the kind now before the court. In my judgment the findings I make herein do not in any way infringe that section, indeed fall into the proviso to the general freedom explicitly set out in ss. 2 namely “done under the authority of any law which ..... makes provision .... for .... maintaining the authority and independence of the courts.”

Counsel for the Respondent raises the question how is the layman, particularly one in the position of these Respondents, to know which words [are] and which [words are] not a contempt. There are, of course, words which clearly do not constitute a contempt and those that do. Between the two there is an indistinct area. The courts have drawn the line not somewhere in that difficult indistinct area, but at the edge thereof where it clearly becomes a contempt.

Any ordinary person reading or hearing that broadcast would, in my view, understand that allegations of improper motive were being made. The first phrase complained of is clear. It says “the judgment must have been pre-arranged”.

Can the Respondents then have acted in good faith? In my judgment the answer is no. I do not suggest there was malice or lack of good faith. The Respondents received a news release which contained clear obvious allegations of improper motives on the part of a magistrate. They broadcast it without any query whatsoever as to the veracity thereof. The very fact they agreed to publish an apology suggests they realised that this broadcast contained objectionable material.

I accept that it is difficult for the SIBC to check every news item before it goes out. However they did broadcast this one. That is what matters. It can also be said that SIBC, by the very nature of its operation, in particular the size of its audience, should maintain a high degree of vigilance when checking items to be broadcast. It must not allow itself to be turned into a conduit pipe for any and all sorts of defamatory and scurrilous gossip.

Accordingly, I find that there has been a criminal contempt.

This is the first case of its kind in Solomon Islands. In 1980 there was a similar case but that concerned a contempt of a different nature.

I will now hear counsel concerning the penalty, if any, which is appropriate on these occasions. There is also the question of the drafting and broadcast of an apology.

DPP

The only reference is the 1990 case. It was a $50 fine. I would ask costs to be assessed at $100. I would suggest the apology can be agreed between the counsel, and if not agreed by reference to court.

Respondent

Penalty here is new and different from 1980. I would suggest appropriate penalty is publication of apology.

I ask court to take into account the fact that SIBC do not have any in-house lawyer.

It may be SIBC think of this.

An apology has been made. SIBC went in haste to publish the item.

No intention to defame.

The appropriate penalty is the broadcast of an apology.

Court

I accept the difficulties which SIBC have in this field. They are handling a large volume of material every day and they do not have a lawyer trained in these matters on the premises or, indeed, quick and easy access to one.

I will not impose any penalty on this occasion. I accept that SIBC had no malicious or improper motive. However, a high standard of care should be maintained and the court in the future will be less inclined to impose no penalty.

I order that an agreed apology be broadcast at agreed times. In the absence of agreement there is liberty to restore the matter.

Costs of $100 to be paid by Respondent.