TRINIDAD COURT OF APPEAL LAYS DOWN MININMUM FAIRNESS SAFEGUARDS IN CONTEMPT CASES

Richard Clayton QC

On 2 April 2019 the Trinidad Court of Appeal gave judgment in Sturge v DPP Cr. App. No. P 047 of 2017, reversing the trial judge ‘s finding that defence counsel in a murder trial was guilty of summary contempt- and took the opportunity to lay down guidelines setting out principles of fairness which must be used in contempt cases.

The case arose out because, during the cross-examination of the prosecution’s main witness by the appellant, the witness made remarks which the Court of Appeal described as “audacious”. Fuelled, in part it, appears by frustration, the appellant expressed concerns on his Facebook page which generated commentary by third parties at a time at a time when the trial was still ongoing.

On 11 October 2016, the judge invited submissions from counsel on 14 October. On 14 October the judge indicated that he had scheduled the hearing on that day to hear the parties concerning whether the Facebook postings amounted to a contempt of court. It was submitted on behalf of the Appellant that what was contained in the Facebook posts did not reach the threshold where the judge ought to embark upon a determination of whether it amounted to contempt of court. Counsel who represented other accused largely adopted the Appellant’s submissions.

Counsel for the prosecution submitted that the Constitution does not permit an individual to use any right to infringe the due administration of justice, the due process of law, or the rights of anyone else, and that prima facie the appellant was responsible for the posts in question- as his name appeared on the Facebook page on which they were posted.

On 18 October 2016 the prosecution indicated to the judge, in “emphatic, redolent of imploring, terms” that since there was a risk that the Facebook posts and comments had come to the jury’s attention, the judge ought to enquire into that issue or give a robust warning to the jury. However, the judge declined to conduct a jury enquiry or to give any warning.

On 16 March 16 2017 the murder trial ended and the jury returned a guilty verdict. On 26 October 2017, a little over a year after he had first raised the issue, the trial judge gave his ruling, and found the appellant guilty of contempt of court. The judge reviewed the Facebook posts in great detail, including the comments by third parties and responses by the appellant. The judge primarily reasoned that, having regard to the timing of the appellant’s Facebook posts, there was a real risk of prejudice in the substantive trial.

An appeal was made to the Court of Appeal. The central complaint made by Richard Clayton QC for the appellant was that the judge’s finding of contempt was unlawful since the trial process was unfair: the judge failed to properly particularise the allegations against the appellant, failed to inform himself of the facts and evidence necessary to found the charge, and failed to give the appellant the opportunity to give evidence if he so desired.

Sao Hon and Mohammed JJA took the view that there was certain deficiencies in the requisite standard of procedural fairness and identified four main instances in which the appellant suffered palpable prejudice as a result of these gaps in procedural fairness, namely: (i) the failure to identify the specific charges against the appellant, (ii) the absence of a plea from the appellant; (iii) the fact that the appellant was deprived of the opportunity of making submissions; and (iv) the fact that appellant was deprived of the opportunity to adduce contradictory evidence, in particular, that he might have adduced expert evidence that there were the privacy settings in his Facebook profile when the posts were made which might have factored in to his culpability, and/or to the issue of mitigation..

The majority of the Court of Appeal, therefore, overruled the trial judge, reversed the conviction for contempt and refused to order a re-trial.

The appellant argued that there was an international consensus in relation to procedural safeguards in contempt cases, relying on various English authorities such as Balogh v St. Albans Crown Court [1975] 1 Q.B. 73, , R v Moran (1985) 81 Cr. App. R 51, R v Joseph Griffin (1989) 88 Cr. App. Rep. 63, R v Ras Grant [2010] EWCA Crim 215 and the recent case of in Re: Yaxley-Lennon [2018] 1 W.L.R. 5400, Australian cases like the Supreme Court of Victoria in Mirza Zukanovic v Magistrates’ Court of Victoria (2011] V.S.C. 141 and Canadian Supreme Court decision, United Nurses of Alberta v The Attorney General for Alberta [1992] 1 S.C.R. 901.

• The majority highlighted certain procedural protections in adjudicating contempt of court cases by summary procedure, the importance they held could not be gainsaid and laid down the following principles of fairness:
• in contempt proceedings, the decision to try an alleged contemnor summarily should only be taken in order to preserve the integrity of the trial and/or the dignity of the court.
• The decision to proceed summarily should not be made hastily and it is important in appropriate circumstances to allow time for reflection on the alleged acts.
• The alleged contemnor should be allowed a reasonable opportunity to properly investigate the circumstances.
• The alleged contemnor should be given an opportunity to apologise to the Court.
• The charge must be put to the alleged contemnor and he must understand the charge.
• The alleged contemnor should be allowed, as the context and the circumstance of the case dictates, the opportunity to obtain legal representation and advice.
• The alleged contemnor must enter a plea.
• If the alleged contemnor has pleaded not guilty, he must be afforded the opportunity to present evidence, if he wishes, and to make submissions of fact and of law; and
• where applicable, if the alleged contemnor is an attorney-at-law, the judge should at least consider the possibility of whether a reference to the Disciplinary Committee of the governing legal body might be a viable option.

Although Narine J.A. gave a dissenting judgment, he agreed with Sao Hon and Mohammed JJA that best practice should include the following:

• an identification of the specific charge(s) with sufficient particularity so as to inform the contemn or of the case he has to answer;
• an opportunity to plead to the charge(s); an opportunity to make submissions;
• an opportunity to give evidence in his defence and to cross-examine witnesses; and an opportunity to apologise to the court for his conduct.

Richard Clayton QC represented the successful appellant

1 May 2019