Independent Publishing Company Ltd v Attorney General of Trinidad and Tobago and another; Trinidad and Tobago News Centre Ltd and Others v Same
|Lord Brown of Eaton-under-Heywood
|08 June 2004
| UKPC 26
|Appeal No. 5 of 2003
|08 June 2004
 UKPC 26
Present at the hearing:-
Lord Bingham of Cornhill
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
Appeal No. 5 of 2003
Appeal No. 7 of 2003
[Delivered by Lord Brown of Eaton-under-Heywood]
These appeals raise fundamental questions both as to the reach of the Court's contempt jurisdiction at common law and as to the circumstances in which a claimant is entitled to constitutional redress under section 14 of the Constitution of Trinidad and Tobago (the Constitution). Before the issues can properly be identified, however, it is necessary to recount something of the background as well as the more immediate circumstances surrounding the appeals.
On 10 January 1994 four members of a family were brutally murdered as a result of which Dole Chadee (also called Nankissoon Boodram), a notorious drug lord, and nine others were charged with murder and on 30 September 1994, following the preliminary inquiry, committed to stand trial on 4 November 1994.
Both before and after the preliminary inquiry there was massive publicity about the case and in particular about Dole Chadee, publicity later to be described by Sharma JA as "sensational, unremitting, and scandalous". "The whole country", observed Sharma JA, "appeared to be riveted and obsessed with the pending trial and many commentators had dubbed it as 'the trial of the century'." Chadee in the result filed a constitutional motion complaining about the DPP's failure to put an end to this pre-trial publicity and contending that it had infringed his rights to due process and a fair trial. He was seeking either discontinuance or at least the postponement of his trial. In the event the application failed successively before the judge, before the Court of Appeal and before the Privy Council - see , where several examples of the prejudicial publicity are to be found. On dismissing the appeal, Lord Mustill, giving the judgment of the Board, said this, at pp 852-853 and 855:
"In a case such as this, the publications either will or will not prove to have been so harmful that when the time for the trial arrives the techniques available to the trial judge for neutralising them will be insufficient to prevent injustice."
"The proper forum for a complaint about publicity is the trial court, where the judge can assess the circumstances which exist when the defendant is about to be given in charge of the jury, and decide whether measures such as warnings and directions to the jury, peremptory challenge and challenge for cause will enable the jury to reach its verdict with an unclouded mind, or whether exceptionally a temporary or even permanent stay of the prosecution is the only solution."
Following the Privy Council's decision (given on 19 February 1996) the trial was re-fixed for hearing on 10 June 1996. The publicity did not cease. A key witness, Clint Huggins, who had testified at the preliminary inquiry, was killed shortly after leaving protective custody in February 1996. Amongst the many daunting tasks facing the trial judge, Jones J, was the selection of an unbiased jury, a process which was to take from 13 June to 26 July and to involve the oral examination of each potential juror to see whether they were affected by the weight of adverse publicity. Many were held to be disqualified. All the accuseds' challenges were used. The jury pool had to be supplemented by "praying a tales".
Meanwhile there had been a dramatic development in the case. On 10 June 1996 counsel (Mr Peter Thornton QC for the ten accused and Mr Cassell QC for the State) saw Jones J in Chambers and told him that one of the accused, Levi Morris, had decided to plead guilty to the four counts of murder and testify against his co-accused in return for which his mandatory death sentence was to be commuted by Presidential pardon to one of life imprisonment. The pardon was conditional on Morris giving evidence for the prosecution in accordance with a statement taken from him on 4 June.
Mr Thornton then said that he would ask the judge in open court for an order that none of this should be reported for the time being. Were Morris not ultimately to give evidence in line with his fresh statement, prior publication of his change of position would have prejudiced the jury. The proposed order was "in order to secure a fair trial [and] that there should not be any further difficulty with juries" (assuming that counsel's imminent application "to stay the proceedings because of the adverse pre-trial publicity … should be unsuccessful" - an application in the event made on 10 June and dismissed on 13 June). Mr Thornton told the judge: "You have an inherent power to control the proceedings of your court at common law, inherent jurisdiction". Mr Cassell agreed and said that he did not resist the proposed order. He indicated however, that before opening the case for the prosecution he would be applying to the judge to rule on the admissibility of Mr Morris's evidence and the evidence of Mr Huggins' deposition since otherwise there would be no case to open.
Upon the adjournment of the hearing into open court, Jones J then made the order sought by counsel ("the 10 June order") in these terms:
"It is ordered that the media, both printed and electronic for the time being and until further order, refrain from publishing, referring to or commenting upon in any way the matters in this court which relate to the accused Levi Morris or Modeste, and in particular, to his plea or to the sentence imposed by this Court."
Despite that order there appeared in the TNT Mirror newspaper on the morning of Friday, 14 June 1996, three articles respectively headlined "State has Bombshell Witness", "Remember Parmassar?" (Parmassar had similarly turned State's evidence in an equally sensational murder trial some twenty years earlier) and "Chadee's Cool Confidence", the combined effect of which would lead readers to suspect that one of the accused had pleaded guilty and would be giving evidence against his co-accused. The editor of that day's issue and author of the second article was the appellant, Ken Ali; the author of the third article was the appellant, Sharmain Baboolal, a freelance journalist; the publishers of the newspaper were the appellants, T & T News Centre Limited (T&T).
Contempt charges were immediately issued against Mr Ali and Ms Baboolal and they were required to attend before Jones J at 2 pm that day to show cause why they should not be punished for contempt of court. The charges alleged that the articles contravened the 10 June order. Having been served with the notices only some fifteen minutes before the hearing, Mr Ali and Ms Baboolal attended with junior counsel and made a series of applications for adjournments, first to allow counsel to take instructions, 35 minutes being allowed for the purpose; then to await the arrival of Mr Maharaj, Senior Counsel by then instructed on their behalf and on his way to court, 20 minutes being allowed for that; then, on Mr Maharaj's arrival, for him to research the law and consider whether to file affidavit evidence, 17 minutes only being allowed for that, despite the offer of an undertaking that such publications would not be repeated. Mr Maharaj was not shown the 10 June order (which in any event had probably not been transcribed) and had no time even to read the three articles. Upon enquiring of the judge whether it was proposed to lead any evidence against the two journalists, Mr Maharaj was told that none was thought necessary. Having called Ms Baboolal and the newspaper's editor-in-chief to give evidence, Mr Maharaj then renewed his application for an adjournment for an opportunity "to check the constitutionality of this order". The application was refused and Mr Maharaj was instead required to address the judge. Following his submissions, essentially to the effect that the articles (which he himself had not read) did not breach the order, Mr Hudson-Phillips QC, counsel, instructed by the Attorney General then addressed the court in response. Having found both appellants guilty, the judge immediately committed Mr Ali to prison for 14 days and fined Ms Baboolal $1,000 to be paid within 7 days, 21 days' imprisonment in default.
The judge then confirmed a further non-publication order made at an earlier stage of the hearing that afternoon (the 14 June order) in the following terms:
"Members of the press, that is, both the electronic and print media, … I … order that for the time being and until further order you refrain from publishing, referring to, commenting upon in any way whatsoever the matters in this court which relate to the contempt proceedings against Ken Ali and Sharmain Baboolal, including the charges, their pleas or any submissions made in the matter, nor may you publish this order."
On 17 June Mr Ali and Ms Baboolal appealed against their convictions and sentences, Mr Ali being released on bail by the Court of Appeal the following day, 18 June.
On 18 June the appellant, Independent Publishing Company Limited (IPC), publishers of The Independent, a weekly journal, issued a notice of motion seeking redress under section 14(1) of the Constitution for alleged violations of their constitutional rights by the non-publication orders made respectively on 10 and 14 June 1996.
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