The State v Alphonso

• Jurisdiction: Trinidad & Tobago
• Judge: Moosai, J.
• Judgment Date: 27 March 2012
• Neutral Citation: TT 2012 HC 106
• Docket Number: Cr. 8 of 2006
• Court: High Court (Trinidad and Tobago)
• Date: 27 March 2012

High Court

Moosai, J.

Cr. 8 of 2006

The State

and

Alphonso

Appearances:

Mr. G. Peterson, S C, Mr. I. Brooks and Mr. S. Cazabon for the Contemnors.

Mr. R. Gaspard, S C, Ms. E. Green and Ms. R. Rambhajan amicus curiae.

Criminal practice and procedure - Criminal contempt of court — Application for orders of committal.

1. Introduction.

Moosai, J.

1 The Director of Public Prosecutions applies amicus curiae pursuant to Order 52, rule 3 of the Orders and Rules of the Supreme Court, 1975 (“the RSC”) for, among other matters, orders of committal against Khamal Georges, Rosemary Sant and Guardian Media Ltd. for their contempt of court in broadcasting and/or causing to be broadcast on television during the 7:00 PM Cable News Channel 3 (“CNC3”) prime time news for Wednesday, June 22, 2011, and on the Internet, a report by Khamal Georges pertaining to one Barry Alphonso, an accused person then facing a retrial before Mr. Justice Moosai for the offences of possession of a firearm and ammunition. All 3 parties admitted their culpability at a very early stage in the proceedings and, consequently, through their attorneys, pleaded guilty to the offence of contempt of court. The question that arises for decision in the instant case is what is the appropriate penalty in the circumstances for the contemnors.

2. THE CHARACTERS.

2 Guardian Media Ltd. is a publicly listed Company. Prior to its change of name in 2010, it carried on business operations under the name “Trinidad Publishing Co. Ltd.”. The latter company was originally founded in 1917 and, at its inception, operated solely as a newspaper. Over the years it expanded its operations to include a number of radio stations and, in 2005, acquired the television station, CNC3, which then started its broadcast operations. The corporate structure of Guardian Media Ltd. is such that the radio, television and newspaper businesses all operate independently of each other, with each division having its own General Manager. While each General Manager reports to the Managing Director of Guardian Media Ltd., there is no structure to facilitate the sharing of news within each division. In actuality each division competes with the other for the latest scoop.

3 Khamal Georges is and was at all material times a reporter with CNC3 and the reporter who authored the impugned publication. Rosemary Sant is and was at all material times the head of news at CNC3.

3. THE LAW ON CONTEMPT OF COURT.

4 The law of contempt of court is of ancient origin and seeks to protect, in a rational and principled manner, challenges to the fundamental supremacy of the law by enunciating principles intended to uphold and ensure the effective administration of justice. Lord Donaldson, M.R. in AG v. Newspaper Publishing PLC [1987] 3 All E.R. 276, 299 (CA) propounded the following as its underlying rationale:

“The law of contempt is based on the broadest of principles, namely that the courts cannot and will not permit interference with the due administration of justice. This application is universal. The fact that it is applied in novel circumstances, for example to the punishment of a witness after he had given evidence (see AG v. Butterworth…) is not a case of widening its application. It is merely a new example of its application. In that case, as here, the trial judge (Mocatta, J.) relied on the fact that there was no such case in the books, but this court held that that was a distinction of fact not principle….”

5 Thus the rationale of the law of contempt is essentially to uphold the effective administration of justice. “If a court lacked the means to enforce its orders, and its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute”. (Borrie & Lowe, The Law of Contempt (2010) 4th edn. para 1.3)

6 In AG v. Times Newspapers Ltd. [1974] A.C. 273 [HL], @ 309 Lord Diplock at page 309 outlined the various ways in which the due administration of justice might be prejudiced:

“The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.”

7 The New South Wales Court of Appeal in A-G (New South Wales) v. John Fairfax Ltd. [1981] N.S.W.L.R. 362 at 368 defined contempt of court at common law as follows:

“Contempt will be established if a publication has a tendency to interfere with the due administration of justice in the particular proceedings. This tendency is to be determined objectively by reference to the nature of the publication; and it is not relevant for this purpose to determine what the actual effect of the publication upon the proceedings had been, or what it will probably be. If the publication is of a character which might have an effect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so removed or theoretical that the de minimis principle should be applied.”

8 Archbold Criminal Pleading, Evidence and Practice 2011 paras 28–34 et seq. succinctly summarizes the common law in this area. At common law, certainly where the strict liability rule applies, a contempt of court is an act or omission calculated to interfere with the due administration of justice: Attorney General v. Times Newspapers Limited [1992] 1 A.C. 191 [HL]. Conduct is calculated to prejudice the due administration of justice if there is a real risk as opposed to a remote possibility that prejudice will result: Attorney General v. Times Newspapers Limited [1974] A.C. 273 [HL].

9 Manifestly therefore the criminal offence of contempt of court involves actions which prejudice, or create a real risk of prejudicing, the administration of justice, in a particular case, or more generally. Criminal contempt is best regarded as a crime that is sui generis with the most striking feature being the summary process by which such crimes are prosecuted. The standard of proof is, of course, proof beyond a reasonable doubt. Archbold para 28–39 also makes clear that at common law the publication of matter calculated to prejudice the fair trial of a pending cause (the issue which also arises in the instant case) was an absolute offence. “[U]nder the 1981 [Contempt] (UK) the test for the strict liability rule is whether the publication creates a substantial risk of serious prejudice to particular proceedings, whereas at common law publications thought to create a real risk to particular proceedings are held to be a contempt”: Borrie & Lowe ibid para 5.1.

10 In pending criminal proceedings there is no need to prove an intention to interfere with the due administration of justice. Thus in R v. Odhams Press Ltd. [1957] 1 Q.B. 73 (Q.B.D.) the Court held that mens rea was not a necessary constituent of a contempt of which the court will take cognizance and punish and that lack of intention or knowledge was only material in relation to the penalty which the court would inflict. The test was whether the matter complained of was calculated to interfere with the course of justice, not whether the authors and printers intended that result. Accordingly publication of matter alleging the commission of criminal offences was at the risk of those responsible for it.

11 The Irish Supreme Court in DPP v. Independent Newspapers [2009] I.E.S.C. 20, [2009] 3 I.R. 598 has held that the issue of contempt was to be assessed as at the time of publication. In coming to that conclusion the court approved of what the Australian High Court said in R v. Glennon [1992] 173 C.L.R. 592 at 605:

“The question whether a contempt has been committed ‘has to be determined at the time of publication and not by reference to subsequent events’…. That time may well be in advance of the actual trial and even before the date for trial is known. Thus a conviction for contempt depends upon findings of fact and inferences drawn at that time on the basis of evidence then available.”

4. THE CONSTITUTION AND THE COMMON LAW.

12 While not directly relevant to the issue to be determined, I should, for the sake of completeness, address the interplay between the common law and the Constitution. The Constitution guarantees the right to a fair trial, the right to freedom of expression and the right to freedom of the press: sections 4 and 5 of the Constitution; Boodram v. AG of Trinidad and Tobago [1996] A.C. 842 [PC] (The rights to freedom of expression and freedom of the press shall, for the sake of convenience, be collectively referred to as the right to freedom of expression.) However, fundamental rights are not absolute. Each nation would have to embark on the complex process of balancing the values underlying free expression and fair trial rights. In construing the Constitution a court must of necessity have regard to its text and adopt a construction that seems likely to have the most beneficial impact on the lives of the people of Trinidad and Tobago: Boodram v. AG Trinidad and Tobago Civ App. No. 173 of 1994 per Sharma, J.A. at pp 15–16 [CA of TT]. In so doing the principles, freedoms, international texts and comparative...