The Gazette 1983

GAZETTE

PTE

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

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:-

"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:-

"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,

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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