The Gazette 1983

GAZETTE

S E PTE M BER 1983

satisfactory guide to the case before the court. The American cases on contempt were likewise regarded as not being very helpful. They did not constitute adequate authority for the appellants' contention that they were constitutionally entitled to a jury trial. Henchy J. pointed out that contempt of court is in certain respects sui generis. The offence of criminal contempt attracted a maximum fine of penalty which was theoretically at large. To this it might be said that the penalty which can be imposed for other common law crimes like conspiracy is also without theoretical limit and jury trial is required in these instances. No adequate answer is made to the argument that in terms of those considerations which have led to the constitutional necessity of trial by jury, criminal contempt of court does not differ in essential respects from other serious crimes. His lordship also stated that because criminal contempt was an offence that strikes at the heart of justice by substantially impeding it or prejudicing its operation, the necessity to come to grips with it expeditiously had for centuries been recognised by the summary manner in which courts of record had thought it necessary to deal with it. Other agruments were adduced to distinguish the position obtaining in the United States from that in this jurisdict- ion . None of them were altogether convincing or cogent. The U.S. Constitution prescribed trial by jury for all criminal prosecutions (the exclusion of "petty" offences being a judicially created exception)^The American criminal contempt concept included conduct which in our law would be merely civil contempt or perhaps not amount to contempt at all. It was also noted that judges in state courts, by reason of the manner of their appointment and of their terms of tenure, did not fully correspond to our judges. Notwithstanding this rejection of American authorit- ies, the approach ultimately adopted by Henchy J. mirrors somewhat the opinions expressed by Blackman J. (dissenting) in Codispotti\ Pennsylvania 58 wherein it was said that the determination of whether basically undisputed facts constitute a direct criminal contempt is a particularly inappropriate task for the jury. Henchy J. built on this foundational framework by asserting that what is guaranteed by Art. 38.5 is trial with a jury. He went on:- S9 "The true and essential purpose of such a mode of trial, it may be presumed, is to ensure that, in cases of controverted facts, there will be entrusted to a body of impartial, competent and representative laymen, empanelled as a jury and duly instructed as to the relevant law by "the" presiding judge, the task of determining the facts in issue, and of deciding whether on their interpretation of the contested facts, the verdict should be one of guilty or not guilty". The learned judge further stated that when there are live and real issues of fact (such as whether the accused committed the act alleged against him or whether it was done with his approval etc.) the accused had a prima facie right under Art. 38.5 to a trial with a jury, entitling him to have those issues of fact committed to a jury for their determination. There did, not appear to be any other provision of the Constitution which would rebut that presumption. It would not seem to be consistent with the constitutional requirement of fundamental fairness of procedures, or with the equality before the law guaranteed by Art. 40.1 if contempt of court were

the only major offence exempt from the requirement of a determination by a jury of the controverted facts. However the ultimate responsibility for the setting and application of the standards necessary for the due administration of justice rested with the judges. They could not abdicate that responsibility by allowing juries of laymen to say whether conduct proved or admitted amounted to criminal contempt. It was said:- 60 "The committal to the arbitrament of laymen of the question whether the conduct complained of amounted to a criminal contempt is singularly unsuitable for a jury, because of the varying standards and values that juries would be apt to apply; because such a question (being a question of the minimum standard of behaviour necessary for the due adminis- tration of justice in the courts) calls for an answer which cannot be given in the laconic and uninformative verdict of untrained and inexperienced laymen, because the jury by their verdict may put a wrongful acquittal beyond correction; because such an incorrigible acquittal may leave a contemned judge in a state of odium and rejection in the minds of the public, to the detriment of his independence and finally, because such verdicts may have to be allowed to stand although they condone breaches of the requirement of fundamental fairness of procedure". In the present case the appellants, who it will be remembered were responsible for a publication, 61 which alleged inter alia that the Special Criminal Court had so abused the rules of evidence as to make it akin to a sentencing tribunal, lacked even a prima facie

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