Tuesday, May 05, 2009

Time to Reform The Contemptibles (part 2)

[Criticism of judges] excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men’s allegiances to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever….
Wilmot J in R. v. Almon,(1765) 97 ER

What constitutes the grounds for charging the writer of this odious piece, for contempt?

The law doesn’t need fixing, dummy! The problem lies with some legal minds in high places.

1. First, the masthead of the post itself reeks of contempt. It is a direct strike on the capabilities of certain members of the bench whose verdicts have irked the writer. That anger has fueled the thrust of the piece for it implies that the judiciary is manned by incompetent judges who do not have the ability to interpret the law in a judicious manner. The net effect is to sow in the minds of the public that they are being served by an incompetent judiciary, a move calculated to erode the public's confidence in the administration of justice. In simple language, the writer is fomenting public mistrust in the administartion of justice by scandalising the bench with that masthead.

References to case law will bear out the fact that the writer has indeed committed contempt:

a. One kind of contempt is scandalising the Court itself. There may be likewise a contempt of this Court, in abusing parties who are concerned in causes here. There may be also a contempt of this Court, in prejudicing mankind against persons before the cause is heard.
: Hardwicke L.C in St. James Evening Post (1742) 2 At. K. 469, p. 471.

b. Contempt of court means an interference with the administration of justice and it is unfortunate that the offence should continue to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court.
Cross in Attorney-General v. Times Newspapers, [1973] 2 All ER 54.

c. [A]lthough criminal contempt of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process.
Diplock in AG v. Leveller Magazine Ltd., [1979] AC 440, p. 449 and also on page 72
d...........Conduct which is calculated to prejudice any of these three requirements or toundermine the public confidence that they will be observed is contempt of court.
: Diplock in Attorney-General v. Times Newspaper Ltd., [1973] 2 All ER 54.
e. ............act or writing calculated to bring a court or judge into contempt or to lower his
or something calculated to obstruct or to interfere with the due course of
justice or the lawful process of the courts.
:Radcliffe in Reginald Perera v. The King, (1951) 52 N.L.R. 293 (PC).

Other Commonwealth jurisdictions have also reiterated the role of Contempt of Court legislation in preserving public confidence in the judiciary. A few instance in this limited space would suffice to vindicate my argument:
a. Scandalizing the court’ is a convenient way of describing a publication which, although it does not relate to any specific judge, is a scurrilous attack on the judiciary as whole, is calculated to undermine the authority of the courts and public confidence in the administration of justice.
Chokolingo v. AF of Trinidad and Tobago, [1981] 1 All ER 244, p. 248.
b......... but must also be made with the intention of bringing the Judges in their judicial capacity into contempt or casting suspicion on the administration of justice.
:Classen J in State v. Van Niekerk, 1970 (3) SA 655 (T), p. 657.
In emphasising the right to a fair trial, Kerby P has this to say:
c. .........................Whatever limitations may be imposed by the constitutional development protective of free communication upon certain matters upon the law of contempt… I could not accept that the constitutional implied right has abolished the longstanding protection of fair trial from unlawful or unwarranted media or other intrusion. Fair trial is itself a basic right in Australia.
:Kerby P in John Fairfax Publications Pty. Ltd. v. Doe, (1995) in 37 NSWLR 81. pp. 110-11.
d. The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts and judges.
:Gallagher v. Durack (1983) 152 CLR 238, p. 243.

Revert: The gumption of hypocrites who prattle about constitutional probity and the rule of law. Better off for these charlatans be exposed and be banished to work in some fisherman's wharf!
Buffalo: Aye, aye, master! MOoooooooooooooooooooooooo
Apart from the above sources of case law, readers can also peruse the following:
1. C.J. Miller, Contempt of Court, 3rd Edition (2000, Oxford University Press).
2.Glanville Williams, Textbook of Criminal Law, 2nd Edition (1983, Sweet and Maxwell).

TO BE CONTINUED..............................

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