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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Cases 311, 312 of 2006
REGINA
-v-
HONOURABLE MANASSEH D. SOGAVARE,
ex parte THE ATTORNEY-GENERAL;
ATTORNEY-GENERAL
-V-
HONOURABLE MARCUS EINFELD QC,
WAETA BEN TABUSASI AND GABRIEL SURI
Date of Hearing: 30th August 2006
Date of Ruling: 6th September 2006
Mr. Nathan Moshinsky, QC for the Attorney-General
Prerogative Writs – Certiorari – "public interest" claim by the Attorney-General
Administrative Law – Attorney-Generals Standing – "public interest claim"
– threatened contempt by terms of reference of Commission of Inquiry.
Ruling on the applicant’s motion for an order for a prerogative writ to quash particular terms of reference in a Commission of Inquiry for apprehended contempt
Brown, PJ: In this case, the Solicitor-General, Mr. Moshinsky, QC comes to court as counsel, as is the practice, for the Attorney-General who seeks the courts view as to whether or not as a matter of law, a Commission of Inquiry (lawfully appointed by the Honourable the Prime Minister) should inquire into particular aspects of the civil unrest about Honiara in April this year. The Attorney apprehends and perceives a risk of a contempt of court by the conduct of the Inquiry if these particular two terms were allowed to stand. The terms to which objection is taken deal with circumstances leading to the arrest and detention of two recently elected Members of Parliament, the Honourable Charles Dausabe and the Honourable Nelson Ne’e; and their role, if any in the planning, organisation and execution of the "unrest" with the responsibility of evaluating the basis upon which their continued detention in custody is reasonably justified.
For Mr. Moshinsky says, these particular terms of reference, raise a "public interest" question, whether these two directions or references to the Commission may be seen as an apprehended contempt of the courts power and authority to exclusively deal with the criminal proceedings involving these two Members of Parliament currently pending before the courts. There is no rule of law to render the terms of reference unlawful per se, in that they deal with similar issues to those before the court, rather counsel argues the circumstances of this case justify this courts consideration of its discretion to grant a prerogative writ of certiorari to bring up and quash the particular terms of reference. It is necessary to use these legal phrase for they express concepts and prerogatives of the court, prerogatives especially jealously guarded when I realise the conflict between the Sovereign, Parliament, and the Executive out of which such prerogatives and powers historically sprang, because the court is constitutionally able to alter or prevent actions of persons and authorities including organs of the Government. Consequently they are but sparingly used.
Mr. Moshinsky in effect says the court should consider their use in this case because of the "public interest" to prevent interference with the judicial role of the courts.
The right in the court to hear questions of "public interest" is settled law in the Solomon Islands.
The principles applicable have come by way of the Constitution, Chapter VII Part I- which recognises and carries forward laws applicable at the time of Independence. These principles and laws are the strands which guide the court, for the court is bound by the terms of the Constitution, and must apply the law as the court finds it.
The Commission of Inquiry Act (Cap. 5) gives the Prime Minister power to issue a Commission appointing one or more Commissioners "to enquire into any matter in which an inquiry would in the opinion of the Prime Minister, be for the public welfare" (S. 3(1)).
Mr. Moshinsky does not argue the Prime Minister’s right to convene an Inquiry rather that these two particular terms or aspects go beyond the ambit of an Inquiry of this nature. The Commission will be required to undertake a process which will amount to an interference with the existing and future judicial processes relating to the accused persons, for there is a substantial risk that an element of bias may be introduced into the Inquiry for the Inquiry will take evidence in a fashion which is not subject to objection or test in the way of criminal trial proceedings. There is a real risk counsel says of usurping the authority of the courts with respect to the current criminal proceedings facing these two Members of Parliament (MP’s).
There is no challenge to the Prime Minister’s authority to appointment or inquire; rather counsel seeks to point out to the court the nature of that risk, arising from those two particular aspects of 12 referred to the Commissioners. For it is the function of the Court to determine, as I say, public interest questions and where real apprehended risk to the proper administration of justice is found because of the nature of these terms of reference, a risk of a contempt to the court tasked with the present criminal proceedings against these two MP, to take steps to alleviate or prevent such risk.
The 1st issue relating to the role of the Attorney-General to mount these proceedings.
Mr. Moshinsky had, when I granted leave about a month ago, to raise these questions, to satisfy me that the Attorney-General was a "proper party" to come to court to ask the questions and seek the courts help to prevent any threatened abuse. For no mere busy-body has the right to take up the courts time. The Attorney-Generals right, or "standing" as it is called, I find may be likened to that of a spokesperson for all passengers on a ship, where the spokes-person seeks to warn the helmsman of what appears to be a shoal or troubled water, ahead. For better the helmsman steering the ship be told of the apparent threat, than presume the helmsman is aware of it, for if he has not noticed it through inadvertence perhaps, the ship may plough upon the rocks and suffer damage when such damage may so easily be avoided by such a warning.
In this case the risk threatened is to the courts right to freedom from interference in criminal proceedings pending. The "public interest" in that right is its interest to see the law upheld; to see that the courts independent and exclusive right to conduct these criminal proceedings before it is not compromised. For to compromise the courts independence is to undermine the Constitution.
The Attorney-General may speak to protect that right for he appears in court, not as a member of the Executive but rather as a "friend of the court" or as he is termed, "amicus curiae". Again I use archaic term but it conveys a wealth of meaning in a legal context.
Mr. Moshinsky, when dealing with the Attorney-Generals right to be heard on the case, illustrated it by reference to the text of De Smith Woolf and Jowell "Judicial Review of Administrative Action" 5 edit at 2-087 where, (on the basis of decided authorities) the learned authors said:
"Whenever a public right is infringed or threatened with infringement the Attorney-General may institute proceedings to protect that right. What exactly are the interests of the public, which may and should be protected by the Attorney-General, is purely a matter for his judgment which on this question, is not subject to review by the courts. This was made clear in London C.C. v Attorney-General [1902] UKLawRpAC 3; (1902) AC 165."
In Gouriet v. Union of Post Office Workers anors [1977] UKHL 5; (1977) 3 ALL ER 70, Lord Wilberforce at 83 said-
"That it is the exclusive right of the Attorney-General to represent the public interest, even where individuals right be interested in a larger view of the matter, is not technical not procedural, nor fictional. It is constitutional. I agree with Lord Westbury LC that it is also wise".
This court, then, cannot question the Attorney’s judgment where he claims the right to speak for the public interest. It is further plain on the authority of Attorney-General –v- Logan (1891) 2 OB 100 that even were the Attorney to presume to speak on behalf of a relator (a particular interested person precluded from appearance for whatever reason), his exercise of his right is not amendable to review as an ambit, even if it may reflect on the conduct of his office. Here, however, he does not presume to stand in court depending upon the presence of a relator, but rather he proceeds ex officio even though his jurisdictional right does not alter howsoever he comes. (see Wills J. at 103).
For the jurisdiction of the Attorney to come to court relates to the perceived possible consequences of the acts complained of, not to any characterisation of the defendant, institution or person named as a defendant party. The claim then, to represent the "public interest" (for consequences threatened may adversely affect that interest) is wholly within the Attorneys power to bring to the court.
Whilst the courts perception of "public interest" cannot intrude on the Attorney’s jurisdiction to decide, courts inevitably attempt guidance by attempting to define "public interest".
In DPP v. Smith [1991] VicRp 6; (1991) 1 VR 63 the Victorian Court of Appeal at 75 said-
"The public interest is a term embracing matters, amongst others, of standards of human conduct and the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members;"
Mr. Moshinsky argues, the interest which the Attorney seeks to enliven and protect is distinct from the interest of an individual or individuals.
It is this distinction which is so important, here for the Inquiry is not a judicial inquiry while in this case it may be said the interest of the two individual MPs named lies in the strict application of judicial rules of evidence and procedure directed to ensure a fair trial and judgment on specific criminal charges, wholly different interests from those objectives of the Inquiry with its wide-ranging terms of reference, (untrammelled by evidentiary rules) about the civil unrest and obligation to report.
Mr. Moshinsky says that the integrity of the judicial process is at risk for this wide ranging inquiry will be carried out contemporaneously with the prosecution of the criminal proceedings, a circumstance which must, by virtue of the two particular terms, encroach on the very issues to be tried before the court as they affect these two parliamentarians. He points to Lord Reid's comments at 293 in Attorney-General v. Times Newspapers Ltd (1974) AC 273:
"I agree with your Lordships that the Attorney-General has a right to bring before the court any matter which he thinks may amount to contempt of court and which he considers should in the public interest be brought before the court".
So again the choice is the Attorneys and where, as it seems on its face, there may arise the possibility of conflicting views of the Commission and the Court owing to the divergent nature of the process, the manner in which the proceedings are conducted and the different objects to be attained, the Attorney clearly has illustrated his right (on the case authorities which bind me) to ask this court to consider that possibility of conflict, bias, undue influence and perhaps a threatened contempt.
The role played by the Attorney in bringing these proceedings.
In the beginning, I touched briefly on the Attorney’s role. He does not act as a Minister of the Crown. I accept Mr. Moshinsky’s argument on this point in this case for as "amicus curiae" he comes to court on the Crowns behalf as ‘the fountain of justice".
He steps out-side his political role as the Attorney-General of the Government and cloaks himself with, historically the Sovereigns role as parens patriae (parent of his country) where historically the Attorney, representing the Sovereign or Crown was able to seek the Court of Chancery’s help to restrain illegal acts likely to injure the welfare of the public. The historical rights and powers of the Court of Chancery are, to the extent not altered by our Constitution or particular statutes since, exercised by this court in terms of Chapter VII. For it is the developed role of the Attorney in such binding cases which I have mentioned which clothes the Attorney with the power to come as "parens patriae" stemming from the right in the Sovereign, and not necessarily relying on his right as the political officer, or Attorney-General in this Government, for it stands to reason that the particular terms of the Inquiry sought to be impugned are terms of the Governments and directed by the Prime Minister, so it is clear that the Attorney’s responsibility in this case arises from his role as the representative of the Crown seeking answers about the "public interest" and should not be seen as a matter of conflict with the Prime Minister who appointed the Inquiry.
It follows, as Mr. Moshinsky has pointed out, that the Prime Minister has properly acknowledged the responsibility resting on this court to determine the proceedings in accordance with the law and precedents enshrined in the Constitution, law which principally is to be found in the decided case law and which I must seek to follow to a logical conclusion.
In The Queen v Australian Broadcasting Tribunal; Ex part Hardiman [1980] HCA 13; (1980) 144 CLR 13; the High Court of Australia saw fit to criticise the Broadcasting Tribunal for taking the unusual course of contesting the case for relief. The Court said that if "a tribunal becomes a protagonist in the Court there is the risk that by so doing, it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted".
Here, the First Law Officer of the Government, the Attorney-General appears before me, posing questions, and seeking consequential orders dependant upon this courts findings.. The Prime Minister, then, is represented in the sense explained above in the Australian Broadcasting Tribunal’s case that he will abide the decision of the court in accordance with the accepted practice of these types of actions. For clearly they are unusual in this jurisdiction and have caused confusion in the public arena. Considerable publicity has been engendered. But such proceedings are not novel and the case law has deep historical roots. I mention this to seek to allay any suggestion that the Attorney has embarked on a novel course, or a frolic of his own, when that is not the case. Such cases have not been common, perhaps unfortunately here, where the public interest may appear to have been circumvented, by private commercial interests or public officers acting with ostensible authority, in the past.
My comments rely partly on the statement by Lord Diplock at 311 of The Times case, where he said:
"My Lords, it will, I believe, have been apparent from what I have already said that, unlike the Court Appeal, so far from criticising I commend the practice which has been adopted since 1954 as a result of the observations of Lord Goddard C.J. in Reg. v. Hargreaves, Ex part Dill. The Times, November 4, 1953, whereby the Attorney-General accepts the responsibility of receiving complaints of alleged contempt of court from parties to litigation and of making an application in his official capacity for committal of the offender if he thinks this course to be justified in the public interest. He is the appropriate public officer to represent the public interest in the administration of justice. In doing so he acts in constitutional theory on behalf of the Crown, as do Her Majesty’s judges themselves; but he acts on behalf of the Crown as "the fountain of justice" and not in the exercise of its executive functions. It is in a similar capacity that he is available to assist the court as amicus curiea and is a nominal party to relator actions. Where it becomes manifest, as it had by 1954, that there is a need that the public interest should be represented in a class of proceedings before courts of justice which have hitherto been conducted by those representing private interests only, we are fortunate in having a constitution flexible enough to permit of this extension of the historic role of the Attorney-General".
Mr. Moshinsky goes further however and argues that the Attorney’s role in bringing these proceedings also arise from his position as a public officer with a consequent power and duty to act in the public interest even where such interest may not appear to coincide with the wishes of the Government. In the United Kingdom and Australia the Attorney-General, (also appointed such) is in fact also an elected member of the government while in the Solomon Islands he is appointed, not elected.
The Attorney-General as "public officer"
Appointments are by virtue of s. 42(2) of the Constitution and his terms and conditions of appointment are regulated by the Constitutional Offices (Terms and Conditions of Service) Act (Cap. 84) and (Attorney-General) Regulations 2006. By virtue of Regulation 2, his position is permanent unless specified in a contract of employment.
Quite clearly then, as a Constitutional Office Holder, First Law Officer and public officer of the Permanent Public Service his role in these proceedings are unfettered by what may be called "politically considerations" and may be described as that of an "interlocutor" in circumstances where acts of his government are brought into question.
His right or standing has been shown to be based on 3 principle grounds. He is historically the proper official, in place of the Sovereign as parens patriae, to plead before the Court of Chancery (now this High Court); his position as "amicus curiae" more recently is well established in case law which I am bound to follow and the Constitution recognises his position as a public officer, a permanent public servant with duties and powers in his own right, and an unfettered right on the case law authorities to be heard on these questions.
The Commission of Inquiry Act (Cap. 5)
I am indebted to Mr. Moshinsky for identifying relevant parts of the Act, and he has pointed to those particular terms which he invites the court to critically appraise when considering the Act. I have earlier mentioned s.2(1) which enables the Prime Minister to appoint a Commission, about which there is no issue. He goes on to say:
"2. A commission of inquiry must specify the subject of inquiry
I agree with the import of the Act which counsel suggests. It is especially relevant to realise that the public comments made by the Commissioner nominated, The Honourable Marcus Einfeld QC (which I touch on later) appear at odds with the legal effect of the Act set out in 3 above.
The Decision under review
The decision under review is contained in Legal Notice No. 51 which has been printed in the Solomon Islands Gazette No. 28 issued on 14-7-2006. It specifies the following subjects of inquiry and report:-
(d) Investigate, examine and determine the role of any Member of Parliament (including the Honourable Charles Dausabea MP and the Honourable Nelson Ne’e MP) in the planning, organizing and execution of the April Civil Unrest.
(e) Review the circumstances relating to the arrest, charge and detention of the accused persons as well as investigate and evaluate the basis upon which their continued detention in custody was reasonably justified and no politically motivated so as to deprive them and their constituents of their constitutional rights and responsibilities.
(l) make recommendations as to the actions that ought to be taken to prevent a recurrence of the incidents, events and activities occurring during the April unrest.
Is the Court guided by established principles in case law when it asks itself if the particular terms may amount to a contempt of court?
The short answer is "yes" for this court is bound by adopted law pursuant to Schedule III of the Constitution.
Again Lord Diplock’s ratio decidendi in The Times case at 309 expresses principles by which I am bound:
"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 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 provided in evidence adduced 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..."
Are there principles by which the court is bound when determining whether an inquiry to be conducted in accordance with the abovementioned two terms comprises a contempt of court?
This High Court has power to punish contempts of its authority and I need not delve into the reasons why, rather state the fact for those powers and authority are of historical basis enshrined in the Constitution. This court as a superior court also has power to prevent threatened contempt of lower courts powers and authority.
It would seem the commonest kind of conduct to come before the courts on application for committal for contempt has been conduct which has been calculated to prejudice the 2nd requirement highlighted above in The Times case.
But conduct need not be conduct calculated to prejudice the 2nd requirement or of a kind described, thirdly above, where there is actual usurpation by another person or tribunal of the function of a court to try persons according to law, but conduct which may have the effect, in the milieu, of prejudicing a fair trial. For such is the suggestion here, that because of the nature of the Inquiry, bias may emerge from the proceedings of the Commission, bias which will have an effect on the committal or trial proceedings so as to amount to the apprehended contempt were the Commission permitted to proceed. It is plain that the Inquiry is tasked (it appears conjointly in time, with the court) to enquire into matters relevant to the issue of criminal liability, when that issue is presently before a court. The Commissioner nominated, the Honourable Marcus Einfeld QC is conscious of the fact of this conjoint inquiry. He has been heard to say that he will be at pains to avoid any suggestion of a usurpation of function (my words) where he said:
"As in all things this lifetime of experience will guide my and my colleagues’ actions in protecting the sanctity of the legal system and the interest of parties and matters before the courts now and in the future."
His previous judicial experience presumably alerted him to that risk, but he is not the determinant whether a real or perceived risk arises; this court is the tribunal with that authority and despite Mr. Einfeld’s reassurance the determination of the existence of a risk or not lies with this court, not with him or his Commissioners to determine. For his obligation is to carry out his inquiry in accordance with its terms; and the Commission is not empowered to make judgments of its own about protecting the "sanctity of the legal system". That jurisdictional power always rests with the courts.
It matters not that the Commission has not commenced its enquiry for the terms on their face, raise the likelihood that the Inquiry will hear persons whose published story may influence others yet perhaps to be called in committal or trial proceedings, to reconsider his evidence or decline to testify for whatever reason. For the events of April have affected all about Honiara and in this milieu the court must ensure paramountcy of its proceedings and seek to ensure a fair trial. When I say "published story" I mean story given the Commission, and whether or not reproduced in a newspaper, over the radio, on TV or electronically disseminated via the Internet. For such "story" is necessary I would suggest, for the Commission to reach an understanding of the causes of civil unrest; but in a court of law, such "story" may well be severely truncated if it were to be given in evidence, since it may well be, in a legal sense, hearsay and strictly inadmissible against the interest of an accused person. The evidentiary standards are wholly different in the respective tribunals but publication of the material will occur and it would be pure speculation for me to seek to attribute an effect on the minds of persons to be called in the court proceedings, of any accepted material given before the Commission.
Lord Diplock uses that phrase so often used, when at 309 he says:
"The mischief against which the summary remedy for contempt of court is directed, is not merely that justice will not be done but that it will not be manifestly seen to be done"
There may well be a situation where the "story" which emerges in the Commission of Inquiry does not sit easily, as it were, with that reported from the courts. But the court in the Solomon Islands is not constituted by a judge and jury, rather only by a judge or magistrate sitting alone. It is not the differing "stories" that matter, rather whether the fact of any difference will adversely affect the court, either in that witnesses or the court itself will be influenced
The position in England is similar to that in Australia. Chief Justice Gibbs when speaking of a Royal Commission (when directed to examine witnesses in manner where evidence would be admissible in a court of law, in contrast with the Inquiry under consideration here) held that the conduct of a Royal Commission can amount to contempt of court. This case was quoted extensively by Mr. Moshinsky to assist me, and at 86, 87 of State of Victoria v. Australian Building Construction Employees and Builders Labourers Federations [1982] HCA 31; (1982) 41 ALR 71 the Chief Justice Gibbs said:
"Although a commission of inquiry may lawfully be instituted and conducted into the guilt or innocence of individuals, the position will be different if its proceedings interfere with the course of justice and amount to a contempt of court. The very issue of the commission will be invalid if it is done with the purpose of interfering with the course of justice..."
There must then, be some clear evidence of a likelihood of interference by the hearing of the Commission specifically dealing with the two terms of reference, with the court proceedings. The fact that the hearings are conjoint in time will not suffice as "interference".
The Attorney-General’s contention that the court should quash the particular terms of reference were a real risk to be shown to exist of a contempt of court being committed upon the Inquiry being allowed to proceed.
I am satisfied, on the material filed, that criminal proceedings are presently before the Magistrate Court, Honiara; proceedings changing both Members of Parliament with offences arising out of the April civil unrest.
The Honourable Charles Dausabea was arrested interviewed and charged by Inspector Jack Balaga of the RSIP with "inciting riot" contrary to S. 80 of the Penal Code; "threatening violence" contrary to S. 231. A number of appearances before the Magistrates Court have occurred and a preliminary inquiry in accordance with the Criminal Procedure Code (Cap. 7) is currently before His Worship, Mr. John Myers. It is possible the taking of evidence in the court inquiry may not be completed until the end of September (affidavit of Crown Prosecutor having carriage of the matter sworn 1st August 2006).
Bail has been refused.
As well, the Honourable Nelson Ne’e was charged with "intimidation" contrary to S. 231 of the Penal Code, "assist in the management of an unlawful society" contrary to S. 67; and "unlawfully incite persons in a riotous assembly to destroy buildings" contrary to S. s. 381 and 80.
He too has been refused bail. His long form preliminary inquiry at the Magistrates Court is also on-going.
Thereafter the Magistrates will commit either one or both before the High Court for trial; or discharge one or both from all or some such charges. If committed, the trial will be before the High Court which will have carriage of the listings and hearings but any such trial is, having regard to the current court calendar listings unlikely any time before the New Year. I say this for the Commission of Inquiry’s report shall be furnished within 6 months of the commencement, although a commencement date has not yet been appointed. In any event, it is likely that the Commission will take evidence after the end of September when I have regard to the comments of the named Commissioner given the Solomon Islands Broadcasting Corporation on the 3rd August 2006.
None of this recitation should be seen as in any way suggesting contempt has been committed by the fact of the contemporaneous proceedings. Certainly Mr. Moshinsky does not suggest that, although I set it out to show that the terms of the inquiry go to issues which the Magistrates Court have to consider, in some form when it reaches a conclusion on the preliminary inquiry; whether or not to commit for trial. For it may be seen on the face of the 2 terms complained of, that the government seeks to inquire into matters which also may throw light on whether these two individuals have committed a criminal offence, but it is equally plain that the Commission is not enjoined to make a funding on the guilt or innocence of either individual. In New Zealand there is authority for the proposition that a public inquiry into the guilt or innocence of persons is contrary to law (Cock v. Attorney-General (NZ) [1909] NZGazLawRp 62; (1909) 28 NZ LR 405), but English and Australian authorities take a different stance and there is no impediment to a conjoint inquiry. Australian cases, which have held contrary to the NZ view, are collected in Victoria v. Australian Building Construction Employees and Builders Labourers Federation [1982] HCA 31; (1982) 152 CLR 25. Chief Justice Gibbs, refers to the earliest Australian authority on point to be found in Clough v. Healy [1904] HCA 38; (1904) 2 CLR 139, where Chief Justice Griffith, (with the concurrence of the other two Justices) said that a public inquiry into the guilt or innocence of an individual was not contrary to law.
The definitive reasoning in Australia on the issue of possible conflict was that by Dixon, J. in McGuiness v. Attorney-General (Victoria) [1940] HCA 6; (1940) 63 CLR 73 at 102 where he said:
"For while the principle that the Crown cannot grant special commission, outside the ancient and established instruments of judicial authority, for the taking of inquests, civil or criminal, extends to inquisitions into matters of right and into supposed offences, the principle does not affect commissions of mere inquiry and report involving no compulsion, except under the authority of statute, no determination carrying legal consequences and no exercise of authority of a judicial nature in invitos. Further, as Dixon and McTiernan JJ. (1940) 63 CLR, at pp 99, 106 both pointed out, the fact that by statute commissions of inquiry have been armed with the power of compelling testimony has no bearing on the question whether the commission was validly issued. That is plainly right. A commission otherwise valid cannot be rendered invalid because the law confers coercive powers on the commissioner. Since that decision, the law on this question has been regarded in Australia as well settled.
There are no empowering clauses or use of phraseology in either of the two terms of reference which may be read to suggest that the Commissioner’s finding, if adverse to either or both MP’s, would thereby result in any committal for trial. No consequential finding of guilt or innocence will follow the Commissioners report, although there will no doubt be speculation and theorising in the public sphere upon publication of the Proceedings and Report. But the terms do not presume to empower the Commissioner to adjudicate upon guilt or innocence in the sense understood when one thinks of the court. To "investigate examine and determine the role" of either MP "in the planning, organisation and execution of the April Civil Unrest" or to "review the circumstances relating to the arrest" or "investigate and evaluate the basis upon which their continued detentions in custody was reasonably justified" does not, in themselves suggest greater powers than the Commission’s reference envisages and does not thereby threaten contempt on the face of the terms.. That reference does not in fairness to the Commission require more than inquiry and report. It has no executive function, eg. To direct the Prime Minister, the court or to recommend to the Director of Prosecutions a course of action; although Mr. Einfeld did say where the Commission revealed any criminality he would refer his report to the Director of Public Prosecutions, a misappreciation perhaps of his future obligations to report to the Prime Minister. Nevertheless, what the Commissioner considers being his role, with which I find fault, in so far as it contemplates powers in the Commission on possible findings in relation to criminal acts, at this juncture, is irrelevant to the issue of contempt.
What factually then, can be said to bear on the issue of a threatened contempt?
There is justifiable public interest in the causes of the unrest and equally, public interest in wrongdoers being brought to justice in accordance with law. Investigations in both tribunals have different aims, objectives and outcomes. As I say, there can be no committal for trial following inquiry by the Commission for no legal consequences flow from the report and recommendations, even if adverse, directed towards or affecting any particular individuals.
To hold commissions of inquiry into criminal conduct in England and Australia is one of long standing practice and the cases to which I refer illustrate that practice. But a trial is "the finding out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given". No man is "put to trial" where an inquiry is made, which cannot lead to judgment of guilt or innocence, and the Commission cannot be presumed, in those terms of inquiry, to put these men to that "trial". (I am supported in that conclusion by the reasoning of Chief Justice Gibbs in the Australian Builders Labourers case at 52)
The next question I need to ask, is whether, in the circumstances or milieu of the Solomon Islands at this time, especially about Honiara the Capital, (where the Civil Unrest was made manifest and the bulk of the protagonists and victims live) the conduct of the hearings of the Commission will be done with the purpose (or there is likely to arise a real risk) of interfering with the course of justice. (McGuiness at 100-101).
I am not satisfied such is the case here. Mr. Einfeld in his press conference referred to his preferred wish and expectation of assistance from the RSIP. How that can be arranged is for the Commissioner of Police to balance with his existing commitments and responsibilities. He made plain that funding was the responsibility of the Government but that it was in discussions with outside funders, not RAMSI, to assist with the funding and "no doubt as time goes on we will get some finality which can be announced at that time." Neither of these issues at this time is relevant to the possibility of a contempt arising were the Commission to proceed, even were the question of foreign funding of the Commission of Inquiry to cause comment in the public arena.
The current criminal prosecutions are in course because of informations laid by officers of the RSIP. The assistance of RAMSI in facilitating help to the RSIP is well known and recognised by the Government. That assistance is in accordance with the Facilitation Act.
There may well be some degree of prejudice if witnesses in the criminal proceedings were to be called before the Inquiry and perhaps be embarrassed by the form or manner of inquisition yet surely the Criminal process will result in interrogation in the adversarial sense, interrogation which too, may offend cultural sensibilities.
But that is to be expected where our system of justice seeks the truth in both tribunals which are concerned with different ends or outcomes.
Publicity will be the result of both the current court proceedings and the hearings conducted by the commission, publicity however, which cannot affect the deliberations of the Magistrates or ultimately of any judge if called upon to try these MP. It is this principle which separates to some extent, overseas cases from our situation for it is the risk to the perception of jurors elsewhere that weighs heavily on the side of interference.
In other jurisdictions, argument is often advanced about the effect of the concurrent hearings on a hypothetical juror, where the inquiry perhaps may predate the court proceedings so as to risk influencing a juror (who hears or sees prejudicial matter without perhaps the advantage of a judges direction on how to treat such material and to what purpose it may be put, not just to allow it to stand as inculpatory) but in the Solomon Islands no such concern can arise for magistrates and judges sit without a jury, and are both judge of fact and law on the evidence brought before them in court.
Publicity then need be fair and accurate in both tribunals but this court would be wrong to presume that any publicity given the Inquiry would be of such a nature that it, in itself, might give rise to suggested interference with the court proceedings when there have been no sittings of the Inquiry to report and no resultant publicity. Such criticism, if made out subsequent to the hearings must relate to the journalistic endeavours of the reporters and not to the wording of the terms of reference. The journalists may be brought to account if fault is shown, but the terms cannot be impugned for that reason.
There is a risk that witnesses not yet called to court, may be influenced by those witnesses called before the Inquiry whose bias has perhaps been recorded by the Commission (before its consideration and report balances any such bias) and whose evidence to the Commission has been publicised in such a way as to suggest outcomes, perhaps, but that does not, in my view, justify impeding the Commission in its work – Any such risk that court witnesses may have heard or seen reporting of the Commissions proceedings and been influenced by it must be speculation and may be addressed in the court proceedings by appropriate directions by the magistrate or judge to ignore that other publicity.
On the material before me, particularly the two affidavits of the Crown Prosecution, I am satisfied there is no evidence on which to apprehend that the public inquiry by the Commission will influence those witnesses likely to be called in the committal proceedings, so as to amount to a contempt of court. In the course of the Inquiry it may transpire that court witnesses could face pressure in circumstances neither envisaged nor argued by Mr. Moshinsky. If that were to happen, then perhaps a further application may be entertained here.
Conclusion.
These matters are of great public interest. I cannot say they are competing interests for their objectives are different. I am consequently not satisfied on the principles in the Times Newspapers case, calling for a balancing of interests- both the court’s for due administration of law by fair trial and the Commission for unfettered access to information-, that failure to prevent these two particular References to the Commission, would threaten a contempt of court.
To prove contempt calls for a strict test, to prove the risk of an apprehended contempt is no less strict.
The Attorney has been correct to bring these proceedings. His powers are unfettered in that regard. He should not be criticised for seeking to exercise his undoubted right to have this court adjudicate upon an issue which can only by decided by this court. It is neither a judgment for the Prime Minister nor the Commission to make as to whether or not the two particular terms may give rise to contempt of the court currently hearing these criminal charges against these two MP. It is properly a judgment of this court on principles long established in England and consequently followed in the Solomon Islands. I see no reason to consider charge to such principles for that they no longer take regard of the customs, values and aspirations of the people of the Solomon Islands. In fact I consider the principles balancing interests as they do, reflect the values and aspirations of the people for openness and transparency in the conduct of its parliamentary members.
For the reasons that I have given, the question whether the two terms of Reference should be quashed is answered in the negative. There is no apparent threatened contempt. To presume to anticipate contempt by the manner of Inquiry by the Commission is not open on the evidence before me.
Suffice to say that Counsel’s argument has been fairly balanced so as to assist the Court, with all appropriate authorities relevant to the questions.
The order of the court is that the application for certiorari is competent but is refused. The motion is accordingly dismissed. The interim injunctive orders are discharged.
THE COURT
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