In Re: Contempt of Court Alleged Against Berthan Macaulay, Barrister & Solicitor of the Supreme Court of Sierra Leone (CR APP 38 of 1960) [1960] SLCA 4 (3 November 1960)

r [COURT OF APPEAL] IN THE MATTER OF A CONTEMPT OF COURT ALLEGED AGAINST BERTHAN MACAULAY, BARRISTER AND SOLICITOR OF THE SUPREME COURT OF SIERRA LEONE [Cr.App. 38/60] Contempt of court-Whether Supreme Court's power of committal for contempt must be exercised in accordance with Criminal Procedure Ordinance (Cap. 52, Laws of Sierra Leone, 1946)-courts Ordinance (Cap. 7, Laws of Sierra Leone, 1960) ss. ll, 12-Whether trial judge competent to try appellant-Whether necessary to lead evidence in support of charge of contempt-Whether appellant's conduct amounted in law to contempt of court-Sentence. Appellant was counsel for the defence in the trial of J. A. Garber at the Assizes held at Freetown in August 1960. During the course of the trial, appellant was found guilty of contempt of court by the trial judge and fined a total of £500. In his appeal, appellant argued (1) that section 12 of the Courts Ordinance required the trial judge to exercise his power of committal for con tempt in the manner provided by the Criminal Procedure Ordinance; (2) that the trial judge was incompetent to try appellant because he was a person interested in the proceedings; (3) that the trial judge erred in convicting appellant on the second charge since no evidence had been led in support of said charge; (4) that the matters complained of did not amount in law to contempt of court; and (5) that the fines imposed were excessive. Held, (1) that the trial judge was not required to exercise his power of com mittal for contempt in accordance with the Criminal Procedure Ordinance; (2) that the fact that the trial judge was a person interested in the proceedings did not render him incompetent to try the appellant; (3) that it is not necessary for evidence to be led in support of a charge of contempt; (4) that appellant's conduct amounted to contempt of court; but (5) that the fines imposed were excessive. Cases referred to: Cortis v. Kent Waterworks (1827) 7 B. & C. 314; Cox v. Hakes (1890) 15 App.Cas. 506; Ex parte Pater (1864) 122 E.R. 842; !ones v. National Coal Board [1957] 2 Q.B.

55. The appellant appeared in person. John H. Smythe, Ag. Solicitor-General, for the respondent. AMES P. The appellant was counsel for the defence in the trial of one J. A. Garber at the Assizes held at Freetown in August of this year. Before the conclusion of the trial, he was called upon by the learned trial judge (the Acting Chief Justice) to show cause why he should not be summarily com mitted for contempt of court in respect of certain conduct and statements of his during the trial, the particulars of which were given to him in writing. The matter was then adjourned until the next day. On that next day he said that he wished to show cause. He was allowed to call witnesses and thereafter to give evidence himself and also to address the court. At the end, the learned judge told him that he found him guilty on all the charges and indicated that he would put his reasons in writing and read

Freetown Nov. 3,

Ames P Wiseham C.J. Bankole Jones J C. A.

IN THE MATTER OF MACAULAY. Ames P. them on the next day, again which he did. There were three matters in the particulars, and on two of them the appellant was fined £300 and £200, respectively, and on the other one he was reprimanded. There was an order for imprisonment in default but we understand that the fines have been paid. It will, of course, be necessary to set out the particulars of the conduct and words complained of, but, before doing so, it is convenient to consider grounds of appeal Nos. 1, 3 and

4. We will start with ground

4. It reads, and at the same time it states very clearly and concisely the substance of the appellant's argument to us concerning it: " That the Supreme Court of Sierra Leone being a creature of statute, that is to say, the Courts (Amendment) Ordinance of 1959 (No. 31 of 1959) possesses the same inherent jurisdiction to punish summarily the offence of contempt of court as Her Majesty's High Court of Justice in England; that the said inherent jurisdiction is conferred by section 11 of the Courts Ordinance, Chap. 50 ; that the exercise of the jurisdiction being governed by section 12 of the Courts Ordinance, Chap. 50, and the contempt of court alleged being a criminal matter within the meaning of the said section 12, the learned trial judge erred in not dealing with the offence in the summary manner authorised by the Ordinance." It is also necessary to set out sections 11 and 13 of the Courts Ordinance : "

11. In addition to the jurisdiction conferred by this or any other Ordinance, the Supreme Court shall within Sierra Leone and subject as in this Ordinance mentioned possess and exercise all the jurisdiction, powers and authorities, which are vested in or capable of being exercised by His Majesty's High Court of Justice in England. "Provided that the Admiralty jurisdiction and authority of the Supreme Court shall be exercised by virtue and in pursuance of the provisions of the Colonial Courts of Admiralty Act, 1890, or any other Act of the Imperial Parliament: " Provided further that nothing in this Ordinance shall be deemed to invest the court with jurisdiction in regard to- (a) any question arising exclusively between natives- (i) involving title to land situate within the Protectorate, or (ii) relating to marriage or divorce by native customary law or any matrimonial claim founded on such a marriage, or (iii) where the claim or matter in dispute does not exceed fifty pounds in value, or (b) the administration of estates of deceased persons who are natives where such estates lie within the jurisdiction of any native court, or to omt the jurisdiction of any native court in such matters. "

12. The jurisdiction conferred upon the Supreme Court by this Ordinance shall in respect of civil matters be exercised in the manner pro vided by this Ordinance and by such rules and orders of court as may be made pursuant to this Ordinance and in criminal matters in the manner provided by the Criminal Procedure Ordinance, or by any Ordinance by which such Ordinance is replaced." The appellant agrees that the Supreme Court possesses the same inherent powers of summary committal for contempt, as are possessed by the High Court in England, and argues that they are conferred upon it by section 11 and

,, ,. we agree with him. The argument goes on that they are consequently within the meaning of the words " The jurisdiction conferred upon the Supreme Court by this Ordinance " which are at the beginning of section 12, and that con sequently, and because the exercise of these powers is considered to be a criminal matter, they can only be exercised "in the manner provided by the Criminal Procedure Ordinance." This means, of course, that they cannot be exercised in the only way in which the inherent powers of summary committal are exercised or can be exercised if they are to be summary in the sense of this context and that instead, either a summary prosecution must be instituted in a magistrates' court or the proper steps taken to proceed by trial on information in the Supreme Court before another judge. Can it be that powers specifically conferred upon the Supreme Court by section 11 are taken away by the very next section, a procedural section? Had it been so, we would have expected, instead, some proviso to section 11 by which these powers were excepted from the operation of the section. A statute must be interpreted as a whole, and not in part without the context in which the part is and also interpreted, if possible, so that every part has meaning and effect. Maxwell on the Interpretation of Statutes (lOth ed., p. 79) cites the case of Cortis v. Kent Waterworks (1827) 7 B. & C.

314. This case concerned the imposition of a local rate in Woolwich in the County of Kent by virtue of an Act passed in Session 2 of 47 Geo. Ill. A right of appeal was given by the Act to any dissatisfied person. There was also a procedural provision by which a would-be appellant was required to enter into a recognisance to prosecute the appeal. Two years later certain persons were incorporated by Act of Parlia ment to be the company of proprietors of the Kent Water Works. Eventually this corporation wished to appeal under the former Act. A question arose as to whether it could do so, because it could not enter into a recognisance. It was decided that the object of the statute being to enable a rate to be imposed together with the creation of a right of appeal, the procedural provision must only apply to persons able to comply with the procedure. Bayley J. said at p. 331: " . . . But assuming that they cannot enter into a recognisance, yet if they are persons capable of being aggrieved by and of appealing against a rate, I should say that that part of the clause which ... requires a recognisance to be entered into applies only to those persons who are capable of entering into a recognisance, but is inapplicable to those who are not .... " Holroyd J. agreed with that opinion. Maxwell (at p. 89) cites another case of the same nature but the other way round. It is Cox v. Hakes (1890) 15 App.Cas.

506. This case turned on the construction of a section of the Judicature Act, 1873, which gave the Court of Appeal jurisdiction to hear appeals from "any judgment or order" save as thereinafter mentioned. No exception was made for an appeal against an order of discharge of a prisoner on habeas corpus. The procedural section of the Ordinance made no provision for re-arresting a prisoner, were such an appeal made and the order of discharge reversed. Eventually, a case went to the House of Lords to decide whether or not an appeal could be made against such an Order. It was decided that it could not. Lord Halsbury L.C., after stating the history of habeas corpus and emphasising that a prisoner could go from judge to judge and that every judge could make his own decision, the

C. A.

IN THE MATIER OF MACAULAY. Ames P. C. A.

IN THE MATTER OF MACAULAY. Ames P. essence of the procedure being the immediate determination of the right to the applicant's freedom, said at p. 520: " . . . It is surely one mode of arriving at the intention of the legislature to consider whether the machinery provided by the statute is appropriate to the alleged intention," and later on he said, " ... If in the words them selves or in the machinery ancillary to the exercise of the jurisdiction it can be discovered that the legislature did not intend the exercise of the juris diction in a particular case, it is no straining of the words to assume the limit which the legislature has thus expressed by the limitation of the machinery." Lord Bramwell said at p. 524: " Of course if the statute in express terms said the appeal should lie, it must be obeyed. But when the question is one of construction, surely it is a good argument to show that a particular construction would be futile .... " In our Courts Ordinance, section 11 expressly confers various and wide powers and jurisdiction, which can be exercised, whether in civil or criminal matters, in accordance with the procedural provisions of section 12, and this power of summary committal which cannot be so exercised. In our view, the true construction of section 12 is that the requirement that in criminal matters the jurisdiction shall be exercised in the manner provided by the Criminal Procedure Ordinance only applies to matters in which it is capable of being exercised in that manner, to the exclusion of other matters, for which the Criminal Procedure Ordinance makes no provision whatever and so does not apply to the exercise of this power of summary committal. Grounds 1 and 3 can be considered together. They are: "

1. That the learned trial judge was incompetent to try the appellant because the matters complained of were disputed by the appellant and the only statements in support of the allegation were statements made by the learned trial judge himself, who, in the light of the evidence, was a person interested in the proceedings and because the learned trial judge, in the light of his judgment, had prejudged the issue. "3. That no evidence having been led in support of the second charge, the learned trial judge erred in law in convicting the appellant on the second charge." We do not find any merit in these. It is a necessary consequence of the exercise of this power. In the case of Ex parte Pater (1864) 122 E.R. 842, 846, Cock burn C.J. said in reference to the High Court's inherent powers of summary committal for contempt of court, that it " is a case in which it becomes the unfortunate duty of a court to act as both party and judge, and to decide whether it has been treated with contempt .... " It is an exception to the fundamental legal maxim Nemo debet esse judex in sua propria causa. It is not necessary for the judge or anyone else to lead evidence " in support of the charge." The charge does this, so to speak, by stating what is complained of on calling upon the person in question to show cause. Con sequently after having heard the appellant and his witnesses, it was open to the learned judge, if he was of opinion that the appellant had not shown sufficient cause, to proceed to summary punishment.

r We now turn to ground of appeal 2 which is: c. A. 1960 "2. That the matters complained of could not and did not in fact by themselves amount in law to contempt of court." IN THE It is necessary here to set out particulars of the words and conduct MATTER OF complained of. They were as follows: MACAULAY. You are hereby called upon to show cause why you should not be committed for contempt of court in that on the 25th and 26th days of August, 1960, in the Supreme Court, at Freetown, in the Colony of Sierra Leone-

1. In addressing the court and assessors in the case of Regina v. J. Garber you stated, inter alia, "In this country, the normal method of trial in a criminal case is by judge and jury. Why did the Attorney-General apply for assessors in this case? Sections 40 and 41 of Cap. 114 are the sections providing for trial by assessors-they are to be used in the interest of the accused-the defence have not applied under section

40. Trial by jury is the only protection that the ordinary person has against the Crown when the Crown wants to put people in prison improperly. In England they had in the olden days a court called the Court of Star Chamber which was used when the Kings wanted to ensure the conviction of a person ; they never took him for a trial by jury but to the Star Chamber. You might have to think why the Attorney-General applied for trial by assessors in this case-whether it is because he thinks a more fair and impartial trial can be obtained by trial with assessors." These statements (a) tend to and are calculated to prejudice and interfere with the fair trial of the accused and to improperly influence the result of the trial; (b) tend to scandalise the court and bring it into contempt and ridicule.

2. You behaved most insultingly to the court when so addressing the court and assessors in that- (a) at a stage, you went close up to the assessors and as your speech could not be heard by the court or stenographer you were told by the court that you were not audible ; whereupon you continued your speech by shouting at the top of your voice, most contemptuously and rudely, which caused general laughter in court ; (b) you addressed the assessors in law without first obtaining the per mission of the court and in not addressing such law to the court and when at one stage the court called your attention that you had not stated the law quite correctly or fully-you shouted at the court "You are inter rupting me whilst addressing the assessors" and later you told the assessors "This is the law, take it from me." Each item needs to be considered separately. Mr. Smythe, Acting Solicitor-General, submitted that the words must be considered in their context ; and on the application of the appellant, we allowed pages 48 and 49 of the record of the trial of J. A. Garber to be put in evidence. These showed that Mr. Smythe made a protest early on in this passage. saying that it was an abuse of the privilege of counsel ; and that later the appellant said: " I never equated ' Star Chamber ' with these courts and I resent the remarks of the Crown." Before us, the appellant submitted that the construction to be put upon the whole passage was that although the Attorney-General had obtained trial with assessors. hoping thereby to be better able to obtain a conviction, the assessors

1 S.L.-10 Ames P. C. A.

IN THE MATTER OF MACAULAY. Ames P. should not allow themselves to be prejudiced by that. He also said that he was trying to tell the assessors that they should not come and consider themselves put there by the Attorney-General and should not allow it to affect them. We notice that nowhere does it appear from the appeal record that he offered this explanation to the learned judge. There he admitted using the words, and said it was without intending to prejudice or interfere with a fair trial or to improperly influence the result or to scandalise the court or to bring it into contempt and that he was making a vigorous attack on the Attorney General because: " I conceived it to be my duty as an advocate to say every thing on behalf of my client whose brief I have accepted, everything which arises from the interpretation of the law and from the evidence in the case." Later he said, " . . . to show that my attack was always on the Attorney General ... " and on this mention of it he offered his "unqualified apology relating to the Attorney-General." Section 40 of the Jurors and Assessors Ordinance, Cap. 114, provides that a person charged with an offence, not punishable by death, may elect to be tried by the court with the aid of assessors instead of trial by jury. Section 41 provides as follows : "41. The Attorney-General, whenever he is of opinion that a more fatr and impartial trial of any person or persons charged with any criminal offence, who has or have been committed for trial, can be obtained by such person or persons being tried by the court with the aid of assessors instead of by a judge and jury, may make an application to the court for an order, which shall be made as of course, that any such person or persons shall be tried by the court with the aid of assessors instead of by a judge and jury." It should be noted that the order for such a trial " shall be made as of course " ; that nevertheless it is made by the court ; that the trial is not a trial by a judge and jury but trial by the court with the aid of assessors ; that upon the making of the order this form of trial became the method of trial, wholly lawful and according to law, for this particular case, which was a complicated case of accounts ; and that the merits of that form of trial were irrelevant and nothing to do with the sole issue in the trial, which was the guilt, or otherwise, of the accused person. The appellant knew all this and yet when addressing the court and assessors upon this sole issue included this passage, which was set out in the particulars. The learned judge said in his reasons for his decision : " ... In my opinion it was too clear that the one and only intention was to prejudice the minds of assessors and public against trial by judge and assessors and thereby prejudicing a fair trial-it was intended to make the assessors feel that they were chosen-selected and considered mere stooges and puppets of the Crown to carry out what the Crown improperly wanted to do." We bear in mind that, when Mr. Smythe made some objection to what was being said, the appellant said that he had not equated the court to the Star Chamber. But his statement very clearly inferred exactly that; and he had already said that the Star Chamber was used to imprison people improperly.