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In re an application by The Director of Public Prosecutions pursuant to Order 52, Rule 3 of the Orders and Rules of the Supreme Court, 1975 for an order of committal against George, Khamal; Sant, Rosemary; Guardian Media Limited. [2012] TTHC 19 (27 March 2012)

_{TRINIDAD AND TOBAGO}

_{Cr. 06/08}

IN THE HIGH COURT OF JUSTICE

IN THE MATTER OF AN APPLICATION BY THE DIRECTOR OF PUBLIC PROSECUTIONS PURSUANT TO ORDER 52 RULE 3 OF THE ORDERS AND RULES OF THE SUPREME COURT 1975 FOR AN ORDER OF COMMITTAL AGAINST KHAMAL GEORGES, ROSEMARY SANT AND GUARDIAN MEDIA LIMITED

THE STATE V

BARRY ALPHONSO

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

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

Before The Hon. Justice P. Moosai

_RULING

1. Introduction.

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 MR in AG v Newspaper Publishing PLC¹) 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".²

6. In AG v Times Newspapers Ltd³ 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}

¹ [1987] 3 All ER 276, 299 (CA

² Borrie & Lowe, The Law of Contempt (2010) 4^th edn., para 1.3

³ [1974] AC 273 [HL], @ 309

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.⁴

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 2011⁵ 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 AC 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] AC 273 [HL].}

⁴ _{[1981] NSWLR 362 at 368}

⁵ paras 28 – 34 et seq.

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.⁶ 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 Ltd⁷ 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 Newspapers⁸ 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 Glennon⁹:

“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}

⁶ Borrie & Lowe, The Law of Contempt, 4th edn., para 3.2

⁷ [1957] 1 QB 73 (QBD)

⁸ [2009] IESC 20, [2009] 3 IR 598

⁹ [1992] HCA 16; [1992] 173 CLR 592 at 605

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 Tobago¹⁰ (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 Tobago¹¹. In so doing the principles, freedoms, international texts and comparative experience must in the end all be assessed in a local context: Lange v Atkinson¹².

It therefore comes as no surprise that some jurisdictions may accord pre-eminence to free speech, while others may place some restriction on the reporting or contemporaneous reporting of legal proceedings holding that such a measure was necessary to protect the right to a fair trial: see Thomas O’Malley, The Criminal Process¹³.

13. For example the New Zealand Court of Appeal, in Gisborne Herald Co. Ltd v Solicitor- General¹⁴, declined to follow the approach of the Supreme Court of Canada in Dagenais v

_{Canada Broadcasting Corporation}¹⁵ _{in according equal status to the freedom of expression and}

¹⁰ _{[1996] AC 842[PC]}

¹¹ Civ App. No. 173 of 1994 per Sharma JA at pp 15-16 [CA of TT]

¹² [1998] 2LRC 563 at 608 [NZCA]

¹³ paras 16.03 et seq.

¹⁴ [1995] 4 LRC 730

¹⁵ [1994] 3 SCR 835

fair trial interests: see discussion in Borrie & Lowe¹⁶. The New Zealand Court could find no adequate justification for abandoning the prevailing rule that, where on the conventional analysis freedom of expression and fair trial rights cannot both be fully assured, it was appropriate in their free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial. The court, in seeking to accommodate free speech and fair trial values (both of which are enshrined in the Bill of Rights and are similar to our constitutional provisions), analyzed factors relevant to the balancing exercise in New Zealand. The court made the following important and pertinent observations at page 741:

For reasons which we can state quite shortly we are not persuaded that the New Zealand courts should follow the approach of the Supreme Court of Canada and adopt the two- step rule laid down in Dagenais. First, the complex process of balancing the values underlying free expression and fair trial rights may vary from country to country, even though there is a common and genuine commitment to international human rights norms. The balancing will be influenced by the culture and values of the particular community. The Bill of Rights accords a particular status to fair trial rights. Section 25 affirms minimum standards of criminal procedure and the right to a fair and public hearing by an independent and impartial court is a guaranteed 'minimum' right. By specifying how limitations on the rights and freedoms contained in the Bill of Rights are to be justified in particular cases, our s 5 recognises explicitly that there are limits on those rights and freedoms. Within the Bill of Rights itself, the right to freedom of expression (s 14) and the importance in the public interest of contemporaneous discussion of the subject matter must be weighed along with other affirmed rights, which include as a minimum right the right to a fair and public hearing by an impartial court (s 25(a)), and the right to be presumed innocent until proved guilty according to law (s 25(c)) and their application in the particular circumstances. The result of the balancing process will necessarily reflect the court's assessment of society's values. The second passage cited above from Deane J

_{in Hinch is a helpful assessment of that balancing from an Australian perspective.}

¹⁶ The Law of Contempt, 4th edn., para 2.8

Second, there is a lack of data on which the courts could confidently rely as justifying a change in the balancing of free expression/fair trial values. We shall return to the data limitations shortly.

So far as possible both values should be accommodated. But in some cases publications for which free expression rights are claimed may affect the right to a fair trial. In those cases the impact of any intrusion, its proportionality to any benefits achieved under free expression values, and any measures reasonably available to prevent or minimise the risks occasioned by the intrusion and so simultaneously ensuring protection of both free

expression and fair trial rights, should all be assessed. As McLachlin J said in Dagenais¹⁷:

'What is required is that the risk of an unfair trial be evaluated after taking full account of the general importance of the free dissemination of ideas and after considering measures which might offset or avoid the feared prejudice. What must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered. The courts are the guardians not only of the right to a fair trial but of freedom of expression. Both must be given the most serious consideration.'

14. In A-G v Times Newspapers Limited¹⁸ Lord Reid struck, in my view, the correct balance where there was a conflict of interest between freedom of expression and interference with the due administration of justice. At page 294 he stated:

The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a

_{balancing of interests which may conflict. Freedom of speech should not be limited to}

¹⁷ _{[1994] 3 SCR 835 at 950, (1994) 94 CCC (3d) 289 at 370-371}

¹⁸ [1974] AC 273 [HL]

any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.

In Ambard v. Attorney-General for Trinidad and Tobago [1936] A.C. 322, 355 Lord Atkin said:

"But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."

15. At this juncture in our constitutional evolution I favour the approach of both New Zealand and the UK. Thus while conferring paramountcy upon the right to a fair trial, such an approach would provide sufficient latitude for the fundamental right to freedom of expression (used in its widest sense to include freedom of the press see para 12 above), the latter right being described

by the Strasbourg Court in Handyside v United Kingdom¹⁹ as "one of the basic conditions for

the progress of democratic societies and for the development of each individual."

_{5. The facts.}

¹⁹ [1976] ECHR 5; [1976] 1 EHRR 737

16. On June 14, 2011 Barry Alphonso was arraigned in the retrial before Mr. Justice Moosai in the First Criminal Court of the Port of Spain Assizes on a two-count Indictment for possession of a firearm and ammunition. He pleaded not guilty in consequence whereof a jury was empanelled. Having regard to the particular history of this matter the judge acceded to an application by the prosecution to sequester the jury.

(a) The previous trial in 2009.

17. It is appropriate at this juncture to refer to the previous trial before Mr. Justice Mon Desir and what transpired therein.

18. During the course of that trial the judge discharged the jury on November 17, 2009 and granted a temporary stay of any proceedings on the Indictment against the Accused until January

4, 2010.

19. The jury being discharged in the first trial and the grant of the stay had its genesis in the publication by the Trinidad Guardian newspaper, in its edition of November 12, 2009, of two articles entitled respectively “Tight security after plot to kill policeman” by Akile Simon, and “Man, 41, on trial for arms and ammunition”. The Trinidad Guardian newspaper is the print media division of Guardian Media Ltd but operates as an independent entity.

20. Eventually, on November 17, 2009, following an enquiry into suspected tampering with jurors, the judge aborted the said trial after the close of the case for both the Prosecution and the Defence.

21. Following the publication in the Trinidad Guardian newspaper, the Director of Public Prosecutions wrote to the editor of the newspaper by letter dated November 17, 2009 warning that any further publications of a similar nature may lead to proceedings for contempt of court.

22. The DPP also issued a press release to all media houses in Trinidad and Tobago, including CNC3, dated November 18, 2009 issuing directives against the publication of:

“...any material which is likely to prejudice this trial or the security of all participants in this matter including that of potential witnesses; neither should you publish any material which may be likely to affect the right of the accused to a fair trial.

Further any breach of the aforementioned directives would constitute an unwelcome interference with the administration of justice and may properly provide a sufficient plinth upon which to mount a citation by the Director for contempt.”

23. The Contemnors admitted receipt of the said press release.

(b) The retrial in 2011.

24. The Accused was arraigned on Tuesday June 14, 2011 in the retrial. The principal prosecution witnesses in support of the prosecution case were both police officers, namely Police Constables Hamre Lackraj ("Lackraj") and Vidura Maharaj, who claimed to have found this firearm and ammunition in the Accused's physical custody. On the very first day of trial Mr. Sturge, Counsel for the Defence, sought and obtained leave of the Court not to sit on Friday June

17 in order to enable the Accused to appear at the Port of Spain Magistrate’s Court. That was in

relation to a pending matter in which the Accused had been charged for murder.

25. Quite rightly Mr. Sturge voiced concerns that any reference in the media linking the Accused with that preliminary enquiry may have the unwelcome effect of prejudicing the fair trial of the Accused in the retrial. Counsel for the Prosecution quite properly agreed to bring it to the attention of the DPP. Suffice it to say the DPP took no further steps to highlight the concerns of Defence Counsel.

26. At an early stage in the retrial the prosecutor brought to the attention of the court that Lackraj was reluctant to attend court and testify. As a result the court issued a bench warrant for the arrest of Lackraj. The said warrant was duly executed and Lackraj attended court on June 20,

2011. The witness, in the absence of the jury, expressed serious concerns about testifying. He was fearful that his life and that of his family members were in grave danger. Notwithstanding his reservations and with a reminder by the court of the need to exercise some degree of care lest prejudicial matters emerge, Lackraj eventually began his testimony on June 20 and continued same on June 21 and 24.

27. On June 29, 2011 the jury found Barry Alphonso not guilty on both counts of the Indictment.

(c) The television broadcast.

28. On June 22, 2011, while proceedings were pending and at a time when Lackraj was being cross-examined in the said retrial, CNC3 published the report which follows during its

7:00 PM prime time news broadcast. This was a nationwide television broadcast at peak viewing time. The report, which lasted approximately 3½ minutes, purported to be an account by the wife of a police officer recounting, among other matters, that the latter was the main witness in a retrial against a well-known criminal and head of a known gang in East Port-of-Spain and expressing serious concerns for their safety after the retrial was over. In introducing the report,

which was described as exclusive, the television news anchor, Charlene Ramdhanie, gave the following narrative:

"Relatives of a policeman plead for protection. They say they fear for their lives."

and

"As a country we expect the Police to go after the criminals and bandits and ensure the safety of citizens but tonight we hear the story of a police officer who went after a well known criminal and succeeded but that act of heroism turned his family's life upside down and saw the Police Service turn its back on him when he most needed their protection. His wife is tonight speaking out about how they’ve been turned into fugitives because the Police Service has refused to provide them with protection."

29. Khamal Georges then followed up with this report:

"Scared to reveal her identity in fear of her life, this is the only way we're able to hear this woman's story. Three years ago her sister in law was executed, tied with a phone charger cable and killed with a single shot to the head. Her brother was killed three months later to send a message to her and her husband. Two days ago masked bandits attempted to break into her parents' home where she, her husband and two children sought refuge. She knows she is next...

Her husband is the main witness in a high profile case against the head of a known gang in East Port-of-Spain...

CNC3 understands the case was thrown out in 2008 because the Judge, jury and other witnesses in the matter were threatened. They've all been offered protection except her husband. Running seems their only option....

The family of four spends some nights driving, fearful of being static. She and her husband have refused safe house arrangements because she believes they're as good as dead after the trial is over..."

30. Shortly after Khamal Georges began to report, video footage appeared. It moved slowly across the screen and revealed undated correspondence addressed to a Sgt. Harris which was captioned:

"Re: Death Threats to a Police Constable Lackraj Regimental No. 13705 State vs. Barry Alfonso for Possession of Firearm"

The captioned video footage lasted approximately seven (7) seconds and could easily be read by the ordinary viewer. However no audio accompanied the said video footage. Attorney for the Contemnors revealed that what appeared on the television screen in motion was actually the caption of a latter.

6. Analysis

31. The question therefore arises as to what effect the broadcast, viewed objectively, was likely to produce on the minds of the ordinary viewers: see Justice Fazal Karim, Judicial Review of Public Actions, Vol. 1 pp 768 – 769; Saadat Khialy v State²⁰. The latter case arose out of a newspaper article in a criminal case. It was held by the Supreme Court of Pakistan that the offending article was not confined to making fair comments on a question of public importance and it could possibly have created no other effect on the minds of any of the reasonable readers of the said article than that it imputed the basest possible motives to the organizers of such crossword puzzles. Further the question in such cases is not as to whether the publication has, in fact, interfered or not or as to what was the intention of the author or the publisher, but whether it

has the tendency to produce such prejudicial effect. The Supreme Court enunciated the law on

_{this particular type of contempt as follows:}

²⁰ (1962) PLD [SC] 457 [Pakistan]

"Fair and impartial reports of proceedings at the hearing of a case or any interlocutory proceeding therein or even the announcement of the result of such a hearing or interlocutory proceedings are, no doubt, permissible, if they are unaccompanied by comments but any publication which has, or is likely to have the tendency to pervert the course of justice by attempting to excite through the medium of newspapers prejudice against the parties or their litigations while they are pending, constitutes a contempt of court, if it is shown that the person responsible for such publication made them with the knowledge of the pending proceeding. The intention of the persons responsible for the publication is wholly irrelevant in such a case, for what the courts are concerned with ascertaining is as to what effect the publication, read fairly and as a whole, is likely to produce in the minds of reasonable readers. It is no doubt true that the courts in exercising this extraordinary jurisdiction will not be unduly touchy or sensitive to punish even technical or trifling interference. But it must be clearly understood that whenever it appears to a court probable that the offending publication will substantially interfere with a fair trial, it becomes its duty to protect litigants resorting to courts from being prejudiced in the trial of the cases by anything which savours of a trial by newspapers instead of by the legal tribunals of the country. It is a misconception to think that publications of briefs, pleadings or petitions even without comments can, in no circumstances, amount to a contempt. Such publications, if one-sided, may well have the undesirable effect of prejudicing the party whose version is not also placed before the public."

32. Manifestly the said captioned video footage referred to death threats to Police Constable Lackraj, identified him by his regimental number, identified the criminal proceedings and the Accused "State vs. Barry Alfonso" and the criminal charge "Possession of Firearm".

33. The said captioned footage served to connect the dots with the rest of the impugned publication and made manifest that:

(1.) The interviewee's husband, PC Lackraj, is the main witness in a high profile case (for possession of firearm) against the head of a known gang in East Port-of-Spain, "Barry Alfonso", a well-known criminal.

(2.) The case was thrown out in 2008 because the judge, jury and other witnesses in the matter were threatened. They have all been offered protection except her husband, PC Lackraj.

(3.) The Police Service has refused to provide the police officer and his family with protection. As a result they have been turned into fugitives, having to constantly be on the move to avoid being killed.

(4.) During the course of the criminal proceedings, the brother and sister-in-law of Lackraj's wife had been executed to send a message to them. Further, according to Lackraj's wife, 2 days after the start of the retrial, masked bandits attempted to break into her parents' home where she, her husband and 2 children had sought refuge.

(5.) Lackraj's wife believed that, after the retrial was over, she and her husband would have been killed.

34. The broad impression created by the publication taken as a whole was that the Accused was the person responsible for the threats to the judge, jury and other witnesses, thereby resulting in the trial (for possession of firearm) being thrown out. Further the Accused has also issued death threats to PC Lackraj in the retrial. Additionally the Accused is the one responsible for the execution of the brother and sister-in-law of Lackraj's wife and for the attempted breaking into the wife's parents' home. Moreover the Accused would, after the retrial was over, have both Lackraj and his wife executed.

35. The parties quite rightly agree that the consequence of such a publication (I am not for one moment saying that the allegations against the Accused are true) assessed as at the time of publication (during the course of the trial) was to create a real risk of prejudice to the particular proceedings thereby amounting to a contempt of court. Unquestionably this was a serious

contempt. The allegations of the previous bad character of the Accused as set out in the broadcast, if revealed to the jury without the safeguard of an application being made by the Prosecution and of leave being granted by the court, could have resulted in serious prejudice to the Accused. That may serve to explain why the Prosecution, during the course of the retrial, never sought leave to adduce that evidence. It would inexorably follow that the media could not therefore arrogate onto itself the power to reveal, effectively in parallel proceedings, such reprehensible conduct on the part of the Accused. Moreover the outcome of the pending trial was unknown. Thus the possibility of a third trial could not be excluded. And the Accused had a pending charge for murder hanging over his head. The issue of the possible contamination of any future jury, even with the passage of time, would therefore loom large. As Lord Diplock

stated in AG v Times Newspapers Ltd²¹:

[Citizens] 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 adduced before it in accordance with the procedure adopted in courts of law.

36. The High Court of Australia underscored the significance of a fair and unprejudiced trial to the liberty of the individual in Hinch v AG (Victoria)²²:

“The right to be a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law.”

37. Nor could the contemnors pray in aid the purely fortuitous circumstance that the impugned conduct did not come to the jury's attention as they were sequestered. Sequestration of jurors is

²¹ _{(1974) AC 273 at 309 [HL]}

²² (1987) 146 CLR 15 at 58

but one factor to be taken into consideration when considering the broader issue of interference with the due administration of justice. The public policy that underlies the strict liability rule in contempt of court is deterrence. "Contempt of court is punishable because it undermines the confidence not only of the parties to the particular litigation but also the public as potential suitors in the due administration of justice by the established courts of law": per Lord Diplock

in AG v Times Newspapers Ltd²³. Thus the true course of justice must not at any stage be put

at risk: AG v English²⁴. Quite apart from the foregoing (paragraph 35 above) the broadcast, viewed fairly and as a whole, would likely cause reasonable viewers to view the administration of justice with some degree of trepidation. After all, if members of a witness’s family, a police officer at that, could be exterminated with impunity, and, even in the face of that, the police service wilfully refuses to provide protection for that very witness, one may ask what message does that convey to the general public? Clearly public confidence in the administration of justice would be severely eroded. This would have the chilling effect of deterring:

(i) potential jurors from coming forward to perform their civic duty or, if so serving, from giving a true verdict according to the evidence for fear of recriminations from accused persons; and/or

(ii) potential witnesses from testifying in future criminal cases.

7. Responsibility for contempt.

38. Generally those responsible for a publication can be held to be liable for contempt of court. In the instant case the Contemnors were the Head of News (Rosemarie Sant), the Reporter (Khamal Georges) and the Body Corporate (Guardian Media Ltd.). Broadly speaking the same principles are applicable to a television or radio broadcast as to a newspaper publication. Thus

_{liability at common law will devolve, as in the case of newspapers, only on those responsible for}

²³ _{[1974] AC 273 at 309 [HL]}

²⁴ [1983] 1 AC 116 [HL], per Lord Diplock at 142

the broadcast: Borrie & Lowe para 14.13 ibid. At para 14.2 ibid. the learned authors articulate the position with respect to the liability of editors of a newspaper:

"14.3 Any person held responsible for publication may be held guilty of contempt, although he has no personal knowledge of the contents of the article in question. As Lord Goddard CJ noted in R v Odhams Press Ltd, ex p A-G: 'it has always been a tradition of English journalism that the editor takes responsibility for what is published in his paper, and this was held to be a rule of law in R v Evening Standard Co Ltd, ex p A-G....

... the courts have continued to adhere to the strict doctrine of holding the editor guilty. The rationale for this doctrine was expressed by Lord Hewart CJ in R v Evening Standard, ex p DPP, as follows:

'nobody who knew anything of the organization and management of the newspaper could be ignorant of the fact that the work of newspapers was very often done in circumstances of great hurry by many different minds not always fully aware of what others might be doing. The result was a composite thing, but there must be central responsibility. It was impossible to say that men occupying responsible positions should be excused because they themselves were not personally aware of what was being done.'

...

It should, however, be noted that although the editor would always be held responsible (when he is made a party) for the contents of his newspaper or magazine, he may not always be punished for it. Indeed, provided that he has taken all reasonable precautions and has not been negligent, a number of decisions suggest that an editor would be unlikely to be punished. Most newspapers have lawyers on hand to give advice – morning newspapers are usually 'night-lawyered'- and mistakes when they happen will not be visited upon the editor, especially if an apology is tendered."

39. Mrs. Sant stated that at the material time, as Head of News, she had the responsibility of managing the entire newsroom staff of CNC3, numbering approximately 25 media professionals. The CNC3 newsroom produces 12 hourly news updates and 3 major newscasts each week and one half – hour newscast on each weekend day for broadcast on national television and cable. Additionally her responsibilities include, but are not limited to, the planning and organization of the newsroom staff and the delegation of duties to them in relation to the preparation of news output for broadcast. In particular she is responsible for planning story ideas, news output and special assignments. She also proof-reads and assesses news items for their content as it relates to objectivity, balance, news-worthiness, public interest and community improvement/development value. The stories also closely scrutinized for possible infringement of the governing principles to which they subscribe as a responsible media house, including not to defame anyone or commit contempt of court. By reason of the foregoing it is clear that Mrs. Sant had ultimate editorial control over the broadcast and is primarily liable for the publication.

40. Similarly at para 14.16 ibid. the learned authors set out the liability of a television reporter for contempt:

"The position of a TV reporter closely corresponds to that of a newspaper reporter, and liability for contempt will depend upon the extent to which a given report is edited and the extent to which the reporter in question is experienced and likely to be relied upon."

Even though the reporter, Khamal Georges, was relatively inexperienced in crime reporting, it was clearly his story. He was the one who was seen on the broadcast interviewing Lackraj's wife. Indeed, from Mrs. Sant's affidavit, either the Head of News, the Deputy Head of News, the News Producer or the Reporter would review the final version of the news item before it is broadcast so as to ensure compliance by the Video Editor with the instructions to redact the footage. Further the Reporter was one of the persons authorized, time permitting, to perform a "double review" of the content before it was aired. Moreover the decision to remove potentially offending portions of audiovisual material of a broadcast are usually discussed with

the Reporter responsible for the compilation. There is nothing to suggest that he was not able to exercise some level of control over the final broadcast.

41. The position is quite clear with the Body Corporate, Guardian Media Ltd. Proprietors are clearly responsible for the contents of their publication.

8. Penalty.

42. The High Court is a superior court of record and ipso facto has the inherent jurisdiction to punish contempt: Borrie & Lowe ibid. Para 13.10. At common law there is a wide range of sentencing options open to a judge of the High Court for sentencing contemnors found guilty of criminal contempt, including the "power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over or to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon":

Morris v Crown Office²⁵.

Factors relevant to the determination of an appropriate penalty for contempt of court would include a consideration of the following:

1. The nature and circumstances of the contempt.

2. The contemnor's culpability.

3. The contemnor's personal circumstances.

_{4. The effect of the contempt on the administration of justice.}

²⁵ [1970] 2 QB 114 [CA] per Lord Denning at 125

5. The need to deter the contemnor and others from committing further contempts.

6. The absence or presence of a prior conviction for contempt.

7. The contemnor's financial means.

8. Whether the contemnor has exhibited general contrition and made a full and ample apology. (See Bovis Land Lease Pty Limited v Construction Forestry Mining and Energy Union²⁶. The

relevance of any one or more of these factors will naturally depend upon the individual circumstances of the particular case.

43. The assessment of the seriousness of the contempt and the contemnor's culpability would be important factors in determining whether a custodial or some other type of sentence is the most appropriate in the circumstances. With respect to media contempts, a custodial sentence is rarely imposed because the potential interference with the due administration of justice is usually unintentional. Borrie & Lowe, The Law of Contempt ibid.. articulates the issue at para 13.60:

"13.60 The court's power to imprison is the major sanction, which can be imposed for contempt of court and accordingly should be exercised only in the most serious cases. The seriousness would be judged by reference to the likely interference with the due administration of justice and the culpability of the offender, with the latter perhaps being the key factor. Terms of imprisonment are commonly imposed upon witnesses who have refused to be sworn or to answer questions, upon persons who would have intimidated parties, jurors, or witnesses and upon those who have interrupted court proceedings.

Imprisonment is rarely imposed in cases of 'media' contempt. This is usually because the potential interference with the due administration of justice is unintentional. Were it to be concluded, however, that such interference was intended or that the editor was indifferent or reckless as to the consequences of the publication then the court would have no

_{hesitation in imprisoning the offender. In R v Bolam, ex p Haigh, the editor of the Daily}

²⁶ [2009] FCA 650 at para 6 [Australia]

Mirror was imprisoned for three months for publishing an article that was described as

'violating every principle of justice and fair play which it had been the pride of this country to extend to the worst of criminals'. It was held that the publication 'was not the result of an error of judgment but had been done as a matter of policy in pandering to sensationalism for the purpose of increasing the circulation of the newspaper'.

44. There is no gainsaying that contempt of court is an inherently serious offence. In my view the publication combined with the highly prejudicial nature of its contents and the other circumstances make this a very serious contempt. Manifestly the risk of prejudice to a trial increases the nearer the date of the trial. In the instant case the publication of the offensive broadcast occurred during the course of the retrial. And the contemnors have accepted that, at the time of the broadcast, they were aware that the trial had begun. Its temporal proximity was therefore such as to impose on the media the need to exercise a greater degree of caution before publishing same. Further this was a nationwide television broadcast at peak viewing time. In that regard its reach and, consequently, the potential for contamination, extended far beyond that of the radio listeners in the Power 102 FM case cited to me.

45. Additionally the risk of interference with the due administration of justice was heightened in this case having regard to what transpired in 2009 and 2010 during the first trial of the Accused before Mr. Justice Mon Desir (see paras 18 to 21 above). Thus the fact that:

(i) the previous trial had to be aborted; and

(ii) the DPP had to issue a press release to the media with directives against the publication of any contemptuous material concerning the trial and warning of the consequences of any breach of same,

should have alerted the media to the fact that they needed to be especially vigilant when reporting upon this trial in future. However the explanation put forward by the Contemnors for keeping track of this trial was wholly unsatisfactory. Indeed, from an institutional standpoint, there were no procedures in place which would have so alerted the media house that the

particular trial was in progress. Rather it seems that the media house in question was simply relying on the fact that, as the release had been posted on their notice board for a while, its media personnel would remember that the trial had been aborted and that the DPP had issued a press release. Manifestly the breach in the instant case was an egregious one, again far more serious than that in the Power 102 FM case which did not have these two additional features aforesaid. Again it is and will always remain the responsibility of those reporting cases, and their editors, to ensure that no breach of any order occurs and the onus rests with them to make inquiry in the case of any doubt: see Practice Direction UK Reporting Restrictions Contempt.

46. That being said, there is no suggestion in the instant case that the interference with the due administration of justice was intentional or that the editor was reckless or indifferent as to the consequences of the publication. Indeed I accept the testimony of Mrs. Sant, Head of News at CNC3 at the material time, as to the elaborate system in place to provide checks and balances and to filter any potentially offensive, defamatory or contemptuous material. In that regard paras

5, 6 and 7 of her affidavit state:

5. A news item is typically vetted for broadcast by CNC3 in the following manner: once a Reporter has returned to the CNC3 newsroom with a script and footage relative to a news item, this content is reviewed by one or more of the three following CNC3 officeholders: the Head of News, the Deputy Head of News and/or the News Producer. The purpose of this review is to assess the news item content for its news-worthiness, to ensure balance and objectivity of viewpoint in the report and to filter any potentially offensive, defamatory of contemptuous material.

6. If there is any doubt regarding the suitability of the content (or any portion thereof) for broadcast, the CNC3 officer reviewing the material will either seek the advice of external legal counsel or err on the side of caution and decide to remove the potentially offending portions of the audiovisual material from the broadcast. This decision is usually discussed with the Reporter responsible for the compilation of the audiovisual content. If upon the advice of legal counsel, or upon the discretion of the CNC3 officer reviewing the footage, certain portions of the content are deemed unsuitable or potentially unsuitable for broadcast, an instruction to remove the potentially offending portions is

passed on by either the Head of News, the Deputy Head of News, the News Producer or the Reporter to the Video Editor on duty at the time. These instructions are given to ensure that the correct images are blurred, blacked out or removed, and the correct should bites are distorted to prevent the broadcast of any offensive, defamatory or contemptuous audiovisual material. This procedure is also employed when individuals agree to give an interview under condition of anonymity. The same care in editing is employed in such a case since the credibility of the reporter can be irreparably damaged as a media professional.

7. Insofar as it is humanly possible to do so, either the Head of News, the Deputy Head of News, the News Producer or the Reporter will review the final version of the news item before its broadcast so as to ensure that the instructions to redact the footage have been complied with the Video Editor. At times however, because of the time-sensitive nature of the process, many news items are edited during live broadcast and as such, it is sometimes challenging for either the Head of News, the Deputy Head of News, the News Producer or the Reporter to employ the desired and preferred system of a “double review” of the content before it is aired.

47. Accordingly I accept the Contemnors' contention that they were aware that the subject matter of the broadcast related to a trial in progress and thus they took care, as far as humanly possible, to ensure that the names on the video footage were blurred. In that regard Khamal Georges would have instructed the Video Editor to redact the contemptuous footage but, due to human error, the latter failed to comply with his instructions. Further I accept that in the present case it may have been impractical, due to the constraints of time and the volume of stories, to have the story reviewed before it was aired.

48. Clearly whether a media house has put in place an elaborate and reasonable system to ensure compliance with the tenets of responsible reporting is a factor that can be considered when determining an appropriate penalty for contempt. However it must be remembered that the human error complained of has had adverse consequences on the due administration of justice.

49. The contemnors, by way of mitigation, contended that the story was never intended to focus attention directly on the Accused, but rather to offer help to a woman and her family whose lives were threatened, and to highlight the possible injustices within the police service and the seeming failure of the witness protection program in the country. However I agree with the Respondent's contention that the publication occurred during the pendency of the trial and was specifically concerned with it. The need therefore for a greater degree of caution to avoid the risk of prejudice to the trial must have been obvious to the media house. The focus of the report was the wilful refusal of the police service to provide protection to a witness in the trial against the alleged gang leader and a well-known criminal in the face of the murder of two of the witness's family members and a recent attempted break-in at the home of relatives where the witness and his family were hiding out. Clearly this alleged gang leader and well-known criminal was the person identified as being involved in or responsible for the murders and the attempted break-in. Given the fact that there were elaborate security arrangements in place for the trial and that the jury was sequestered, it would not have been difficult for jurors and witnesses in the particular trial, even without specific reference to the captioned video footage, to have identified the Accused as the person referred to in the said broadcast. Again it was purely fortuitous that the broadcast did not come to the attention of the sequestered jury as they did not have the benefit of television. To compound the situation the report, with the accompanying video footage, impermissibly identified the Accused as the person involved in or responsible for the criminal conduct aforesaid.

50. A factor of significance in the instant case is the willingness of the Contemnors from the very beginning to accept responsibility for the broadcast and to unreservedly apologize to the Court. It goes without saying that the court may consider as evidence of genuine remorse the fact that a contemnor admits the contempt at the first reasonable opportunity and/or provides a full, ample and unreserved apology to the court.

51. Moreover I take into consideration the fact that the Contemnors have never before been the subject of any legal action or complaint in the discharge of their duties.

52. Admirably, after the contempt proceedings were filed, the entire CNC3 newsroom staff has been re-sensitized to the need for caution in the exercise of their respective duties in relation to the broadcast of potentially contemptuous material by way of their mandatory attendance at the training seminar entitled "Contempt and the Media" organized by Guardian Media Ltd. This training seminar was designed to provide the CNC3 newsroom staff with the contextual and legal parameters within which the media are to operate as it relates to the Law of Contempt. Another refresher course is scheduled for the 2nd quarter of 2012. Further, the environment at CNC3, since the advent of these proceedings, has been to err on the side of caution which involves greater use of and accessibility to legal advice on contents of stories and, if the material raises questions or doubt, then the story will be excised from the broadcast. From an institutional standpoint the media house must be commended for adopting proactive measures to prevent further recurrences of such conduct.

53. This therefore was a very serious contempt. Ordinarily imprisonment is not imposed in media contempts. This case is no different. Manifestly the Body Corporate, Guardian Media Ltd., must be penalized. In my view, having regard to all the circumstances, the fine must be considerable. In the Power 102 FM case Mr. Justice Volney, as he then was, thought it fit not to fine the radio commentators for their contemptuous conduct in proceedings which were active at the time, but fined the owners of the radio station the sum of $25,000. However the particular media house in that case did not have the benefit of a previous warning by the DPP for, if it had, the fine would most certainly have been greater. Taking all the circumstances into consideration Guardian Media Ltd. is hereby fined the sum of $50,000 for its contempt. The fine is to be paid within seven (7) days from the date hereof.

54. The question arises as to whether Mrs. Sant, even though she had ultimate editorial control over the broadcast and was primarily liable for its publication, should be punished. In imposing no punishment on the editor in R v Thompson Newspapers, ex p A-G Lord Parker CJ stated:

"So far as the Harold Evans is concerned, he, of course, as editor takes full responsibility. On the other hand, when one is considering the question of penalty one must consider his personal culpability. It is quite clear that he knew nothing about this. It is also quite clear that an editor in his position could not possibly be expected to know everything that was happening. It cannot be said that he acted recklessly or turned a blind eye. Indeed, in the opinion of the court he had devised, so far as it is humanly possible, a system which would prevent this sort of thing. In those circumstances, this court has come to the conclusion that it is quite unnecessary to impose a sentence of imprisonment or in the circumstances of this case any penalty whatever on him."

In the instant case Mrs. Sant had, among other matters, devised an elaborate system to provide checks and balances and to filter any potentially offensive or defamatory or contemptuous material. However, as a result of human error, the Video Editor, contrary to his instructions, omitted to blur the names on the captioned video footage. As Head of News at the material time, she takes full responsibility. When considering the question of penalty, I note that she was on 2 days' leave at the time, but had delegated her duties to the Deputy Head of News. However it is

clear that she was available for consultation. In R v Evening Standard Co Ltd²⁷ it was held that

the inaccurate statement published by the newspaper amounted to a contempt of court in that it was a misrepresentation of the proceedings of a court and might have interfered with the course of Justice. Accordingly the proprietors of the newspaper were vicariously liable for the reporter's mistake and a substantial penalty would be imposed on them. However no separate penalty would be imposed on the editor as he had no reason to suppose that the report telephoned to him by the reporter was inaccurate. And, as the reporter had not intentionally sent out false information, no separate penalty would be imposed on him.

55. By reason of the foregoing the failure of the Video Editor to carry out his instructions would impact on the personal liability of Mrs. Sant and Khamal Georges. Taking all the circumstances

_{into consideration I am of the view that there is no need to imprison and/or fine either Mrs. Sant}

²⁷ [1959] 1 All ER 1026

or Khamal Georges in this matter. The latter is young and inexperienced and deserves a second chance. I therefore, without proceeding to conviction, reprimand and discharge Mrs. Rosemarie Sant and Mr. Khamal Georges.

56. The only issue that remains outstanding is that of costs. Costs should follow the event. I shall therefore order that the costs of these proceedings are to be paid by Rosemarie Sant, Khamal Georges and the Guardian Media Ltd to the Director of Public Prosecutions, certified fit for one Senior Advocate Attorney and one Junior Advocate Attorney. Costs of the proceedings are to be taxed by the Registrar in default of agreement.

Dated this 27th day of March 2012.

PRAKASH MOOSAI JUDGE

Context