Volcere v R (SCA 20/2012) [2014] SCCA 41 (12 December 2014);

 

IN THE SEYCHELLES COURT OF APPEAL

 

[Coram:     S. Domah (J.A), J. Msoffe (J.A), F. Robinson (J.A)

Criminal Appeal SCA 20/2012

(Appeal from Supreme Court Decision CR 54/2011)

 

Ralph Volcere

 

 

Appellant

 

 

Versus

 

The Republic                                                  Respondent

 

Heard:             03 December 2014

Counsel:          Mr. Philippe Boulle for Appellant 

                       Mr. Ronny Govinden, Attorney General with Mr. Benjamin Vipin for Respondent 

Delivered:       12 December 2014

 

JUDGMENT

 

S. Domah (JA)

[1]         The appellant is a journalist, the Editor of Seychelles Weekly. The newspaper is on sale as from mid week. But the dates are the weekend dates. Originally charged under three counts for contempt of court under the Criminal Code, he was later charged under a fourth alternative count of common law contempt. He was found guilty by the Supreme Court on the three counts under the Criminal Code. The alternative count was dismissed. The learned Judge sentenced him to publish apologies for  same, failing which to pay a fine of Rs10,000. He was advised to pay the fine which we understand he has done. Be that as it may, the appellant has put up 10 grounds of appeal against the judgment of the learned Judge.

GROUNDS OF APPEAL

[2]           The first three grounds challenge the learned judge’s appreciation of the deposition of witnesses Marise Berlouis, Wilson Belmont and Twomey J. The fourth ground challenges the interpretation of the charges as couched - as to whether the real issue in the case was the article, the words or the impression conveyed to the readers. The fifth ground challenges the reasoning of the learned judge in arriving at the conclusion of his guilt; this ground also avers a confusion of the various offences created by 114(1) of the Penal Code and a lack of  juridical analysis in terms of article, evidence and person stated to have been prejudiced in the respective counts. The sixth ground questions the fact that the learned judge considered defences which had not been raised by the defence: freedom of expression and fair comment. The seventh ground questions the use made by the learned judge of certain terms such as untruth and inaccuracies without factual basis or justification. The eighth ground speaks of a confusion made by the learned judge on the counts under which the appellant has been convicted. He attributes it to a seriously flawed judicial assessment of the evidence, misinterpretation of the law and an unsound process of adjudication. The ninth ground raises the issue that the learned judge was biased against the appellant so that he did not benefit from a fair trial as guaranteed to him under the Constitution. The tenth ground challenges the optional apology publication order which the learned judge had made along with the fine of 10, 000 rupees.

[3]           But before we proceed to deal with the grounds, it is apt that we address a couple of  procedural issues which arose at the hearing. It relates to the defendant’s plea to the charges in the information. 

PLEA TO THE AMENDED INFORMATION

[4]           Learned counsel took up the point that the appellant had never pleaded to the amended charge. The transcript that was produced did contain certain missing parts. The missing parts were later formally made part of the brief.

[5]           There was in fact an amended information. The original counts, three in number, remained in substance what they were. Learned counsel for appellant submitted that there was no plea taken to the amended information. Learned counsel for the respondent was of a different view.

[6]           The dispute has arisen on the question whether when learned Counsel stated that the plea remains the same, he meant Not Guilty to the original counts or he meant “Not pleading to the Amended Charge.”

[7]           We shall not get into the semantics. The law on this matter is quite clear. The question is how material was the amendment?

[8]             In this case, the hearing proceeded on the amended Charge as a plea of Not Guilty. The only material amendment was the addition of Count 4 to which there was a plea taken. The other amendments were consequential to the introduction of Count 4 which made Counts 1, 2, and 3 alternative to Count 4. A couple of additions were made not to the substance of the charge but to the particulars of the offences to buttress, as it were, the particulars.

[9]             The point of absence of plea to the amended information was not seriously canvassed before the court below. Nor was it taken in the grounds of appeal. The accused came to depone and when he did so, it was clear that he knew the full particulars of the amended information, was cross-examined in terms of the amended charge and was re-examined as such. As there was no material variation in the charge and there was no prejudice caused, we cannot accept the late submission of learned counsel not borne out in his grounds of appeal that appellant did not plead to the amended charge.

[10]           The law on this matter is that where there is any amendment to an information and the amendment is material, the accused should be invited to plead to the amended information. But where the amendment is not of a material nature, there is no need to do so.

[11]           We shall now proceed to address the grounds. The first three grounds address specifically the depositions of three witnesses: Mrs Marise Berlouis, Mr Wilson Belmont and Hon M. Twomey. Each will be taken on its own. Grounds 4 and 5 will be taken together. So will be grounds 6 and 7 as well as 9 and 10. Ground 8 will be taken on its own. Grounds 9 and 10 will be addressed separately.

GROUND 1

[12]           Ground 1 challenges the learned judge’s appreciation of the evidence of witness Mrs Marise Berlouis. The argument of learned counsel is that the learned judge summed up about 14 pages of evidence with a one line comment that she knew Hon. Twomey J.A. who comes to La Misere but she does not know where she stays when she comes to Seychelles. Learned Counsel’s predilection is that all the evidence in cross examination with respect to Hon Twomey remained unanalyzed. There was so much material in favour of the defence which would have led to a conclusion contrary to what the learned judge reached.

[13]           We have gone through the transcript. It is easy to read that there was no one-line consideration of the deposition of this witness. It was a line which follows a whole paragraph respecting this witness evidence. It starts with the phrase: “Mrs Berlouis further testified. It cannot be said, therefore, that scant regard was given to her deposition in the judge’s appreciation of evidence. 

[14]           However, it is important to take stock of what this witness had stated. Her evidence has been that she knows the appellant as the one who runs the newspaper. In cross examination she was asked to read the following parts of the article: “Will he now be the one to undo all he has (sic) starts deferred for” and “the second member of the Panel happens to be sister of Former Secretary of State and currently consultant to Mr James Michel, Mr Alain Butler Payette.”

[15]           However, she also added that it is difficult for her to say whether she has the full support for this one: i.e. for the appointment as Judge. Her thinking was that Twomey J. lives overseas. Her conditions are those of a foreign Judge. As a foreign judge, she would be getting terms and conditions applicable to foreign judges. With regard to whether her allowance was hefty, she stated that she does not know. But she stated point blank that  Mrs Twomey cannot be bought. She had known her to be a very straight, honest person with a lot of ethics.

[16]           We are unable to see in what way what she stated would have brought water to the mill of the defendant when she was so forthright in her deposition that Mrs Twomey is a straight, honest person with a lot of ethics. Whether she was a foreign judge or a resident judge or a non-resident judge, her opinion would not matter any more than that of the appellant. What would  matter is the conclusion reasonably reached on the evidence as a whole, which is what the learned Judge did. 

[17]           Also, the question is not the impact of the words upon Mrs Twomey. But the aim of the article on the newspaper readership that the Judge was weak, vulnerable, politically appointed and politically predisposed.

[18]           It would not make sense for us to accept the argument of learned counsel on this score. Ground 1 is dismissed.  With this, we come to the deposition of Wilson Belmont.

COUNT  2

[19]           The submission of learned counsel on Count 2 is that the judgment omits vital evidence which was in favour of the appellant such as: her perks, her allowances and certain  documentary contradictions. Learned counsel has cited passages which contain two “Thank you’s” in the answers he obtained from this prosecution witness. No answer given by any witness, especially where it is akin to an opinion, is accepted as Bible truth. Nor is any evidence in a court of law analyzed monolithically. It is taken, weighed and evaluated in the complete matrix of the case. Pieces had to be put together with the evidence of Mrs Berlouis, that of Wilson Belmont, that of Twomey J and that of the appellant in a matter where the appellant had deponed. Interestingly, in all the latitude given to learned counsel to make his submission, it is of note that he breathed not a word about the deposition of appellant and the answers the latter gave in his cross examination.  

[20]           The “Thank you’s” proffered by learned Counsel to the two answers in cross examination cannot win the case for the defence when it is common knowledge that Judiciary Act deals with the specific issue of judicial salaries only and the budget for running the department is dealt with otherwise. Even the fact that public officials travel economy is meant for public officials. The obvious picture was never completed of its application to members of the Judiciary of certain level. Ethically speaking, learned counsel should have completed the picture before congratulating this witness for his doubtful answer. What is worse, when the appellant came to depone, he maintained that Twomey J travels First Class, not Business Class when the documents show otherwise.

[21]          Further, the very parts of the proceedings he cites shows that when learned counsel  referred  to “perks” in cross examination, this witness corrected him to say “well, we have similar fee and retainer fee.” Again, whether it was hefty or not, the answer was inadmissible as opinion evidence. There were factual evidence which were the only ones which could be accepted by the court that the payments were approved payments. The Judiciary Act speaks of salaries but each Department has its approved budget, itself under public accountability principles. If distortion there is in the evaluation of the evidence, it is certainly not by the learned Judge.

[22]          Judicial appreciation of evidence is a scientific rationalization of facts in their coherent whole not a forensic dissection of every detail removed from its coherent whole. Learned counsel had to show that the conclusion reached by the trial judge was one he could not have reached. On the facts, especially after the deposition of the appellant, it cannot be said that the conclusion was wrong. True it is that the judgment could have been more elaborate as to details. But the lack of detailed analysis does not render a judgment invalid where there is a rational step-by-step to assemble the primary facts of the case to reach a conclusion.  The submission of learned counsel on this score is selective. We are unable to accept it.

GROUND 3

[23]          Ground 3 challenges the judge’s analysis of evidence of Twomey J. There is not much of substantiation under this ground. What is complained of is that the learned judge gave a summary of “the deposition at paragraphs 15 and 16 … which is distorted, inaccurate and a misinterpretation.”

[24]          When we examine the transcript we find that the evidence of Mrs Twomey was summarized in 5 paragraphs. We shall leave it for the reader to appreciate where lies the distortion, inaccuracy and misinterpretation.

[25]          Learned counsel submitted that the conviction was unsound because the appellant was convicted for an offence of which one of the elements was not proved as per the charge. He cited two decisions in support: Padayachy vs The Republic (1987) SLR 62 and Krishnamart Pillay and Ors v The Republic Criminal Appeal no. 5 and 6 of 1993. His argument is that where the evidence adduced contradicts the charge, the conviction based on such contradiction will be quashed by the Court of Appeal. We shall address this under Grounds 4 and 5.

[26]          There is considerable overlapping between the statutory offences of contempt of court. Authority for this is found in the comment of Halsbury “Offences Against public Justice.” Chapter 28 para 28-30:  

“Contempt of court may arise in a myriad of ways and in a variety of forms. There is a substantial overlap between various species of contempt.”

[27]          Unjustified public allegations of judicial bias against a judge undermines the judge’s office as well as perceived impartiality and independence of the Courts themselves: New Statesman (Editor), ex parte DPP 44 Times Law Reprt 301 (1928); A-G v Connolly   [1947] IR 213; [Colina and Another; Re Ex parte Torney (1999) 166 ALR 545. We find no merit under this ground either.

GROUNDS 4 AND 5

[28]          Is a contempt of court offence constituted by the meaning intended or otherwise? Were the three counts properly formulated?  Did the learned judge grasp the essence of the offence and make the relation between the article, the case for the prosecution and the finding of guilt? Was there a flawed assessment of evidence, misinterpretation of the law and an unsound process of adjudication? These are the common issues arising under Grounds 4 and 5.

[29]          The answer to the first question above will fix the answer to the other two. We note that Mr Boulle has appeared in a number of contempt cases in the history of our jurisprudence and he has made valuable submissions. However, we also note that he has in this case misapprehended the content of an offence of contempt of court with criminal libel. In his understanding the relevant crucial parts of the article should have been recited in the respective counts so that when they did not do so, the counts should be dismissed against the appellant. 

[30]          That cannot be. The reason lies in the fact that there is a distinction to be drawn between a charge of criminal libel and a charge of contempt. While it is true that a charge of criminal libel has to aver, and indeed, recite the crucial parts of the article which constitute libel, a charge of criminal contempt has to aver the false allegations made in conditions they are made. Authority for this is found in R v Grandcourt (no. 1) 1967 SLR 34. On such charges,

“it is only material to ascertain whether the statements are capable of interfering or tend to interfere with the course of justice.”

[31]          Count 1 avers that the writing is capable of prejudicing any person in favour of or against any parties to a judicial proceedings; count 2 avers that the writing was “calculated to lower the authority to any person before whom any proceedings is being had or taken; and Count 3 avers that the appellant had committed an act of intentional disrespect to any proceedings or to any person to whom such proceeding being taken or had; and the particulars on each of those counts is couched in terms of the impact of the words rather than in terms of the words themselves.

[32]          The allegations under Count 1 are particularized, with respect to Twomey J, “that she was appointed with the full support of her brother and hired as a foreign judge with all the perks accorded to a foreign judge including free accommodation, free passage and hefty allowance paid in foreign exchange and hence would find it difficult to rule against the wishes of the ruling party in government and that the manoeuvres to overrule the decision of the Constitutional Court have taken place and that the government orders the Court of Appeal as they wish. Count 2 is couched with respect to the impact intended by those allegations on the pending proceedings of SCA 49 of 2011. Count 3 is couched to show the calculated disrespect to Twomey J and the said proceedings.

[33]          For that reason we are unable to accept as a matter of settled law, that the counts are flawed. The learned judge did not err when he grasped the real issue in the case and stated that what counts in such cases is “not the meaning of each word or phrase but the impression that is conveyed by the whole article and its possible effect on those targeted”.   It is correct in law and has the virtue of succinctness. His judgment may not have rambled on ramifications but dealt with the core elements and issues. Padayachy vs The Republic (1987) SLR 62 and Krishnamart Pillay and Ors v The Republic Criminal Appeal no. 5 and 6 of 1993, the two decisions cited by learned counsel are inapplicable to the facts of this case which is a contempt of law case and not a larceny case. The submission stems from the misapprehension of what is to be averred in the counts of a contempt case and what is to be proved.

[34]          There is another submission of learned counsel which these two grounds dispose of. It is the fact that there is a confusion between section 114(1)(d) and 114(1)(i) of the Penal Code. There is no confusion. But there is considerable overlapping between the facts and circumstances which criminalize the various offences under section 114.

[35]          We have considered the submission that the facts as averred are suggestive of a charge under 114(1)(i) rather than under 114(d). Even if that was the case, there is considering overlapping between the various offences under section 114 of the Penal Code. There is no merit in the  submission. This should answer the questions raised in Grounds 4 and 5.

GROUND 6

[36]          Ground 6 needs a short answer. Even if the issues of freedom and expression and fair comment had not been raised, the learned Judge was duty bound to consider them inasmuch as it was a matter of law respecting defence rights.

GROUNDS 7 AND 8

[37]          Grounds 7 and 8 challenge the conclusion of the learned judge for having found that the prosecution had proved the case on the evidence on the standard of proof required. Having gone through the record, we find that the evidence was overwhelming on which the learned judge could reach, and did reach, his conclusion, the major part of same coming from the appellant himself.   

[38]          It is to be specially noted that the submission of learned counsel occults completely the deposition of the appellant and the answers he gave in cross examination. Appellant had exercised his right to give sworn evidence. A reading of the answers he gave shows the extent to which he buttressed the case for the prosecution. He accepted that he wrote that article. He only sought to challenge the meaning attributed to the content.

[39]          Could the answers he gave satisfy any hypothetical listener. We doubt it. His answer is that he did not mean to attack Twomey J. and that he was commenting upon the dirty tactics of the party in power. The crux of the law of contempt is not what the defendant meant to do but what he ended up by doing, willingly or unwillingly. It is not meant to protect the person of Twowey J but the office she holds with regard to the sanctity of the deliberation and the discussion and its isolation from any outside interference in a case pending judgment, a necessary element of the administration of justice and the authority of the court in coming to a motivated judgment according to law.

[40]          The appellant’s answer has been that, properly read, what he stated is not what the prosecution construes it. For any reasonable person, that is hard to accept. What matters is the impact of the article on the general public through its publication.  He published his personal perception as a fact in his newspaper that Twomey J. was appointed otherwise than on pure merit and the Judiciary was open to interference by others in the deliberation of its cases. Apart from being defamatory of her, it amounts to a contempt to publish matter so defamatory of a judge or a court as to be likely to interfere with due administration of justice or court: R v Gray [1990] 2 Q,B, 36, R v Editor of New Statesman (1928) 44 TLR 301; Ahnee v DPP [1999] 2 A.C. 294.

[41]          His answer is that his style of journalism is that he says straight. Every editor has a right to criticize in good faith, in public or in private, the public act done in the seat of justice. Where, however, publication is intentional, - as in this case it was - the article is calculated to undermine the authority of the court, and the defence of fair criticism in good faith is inapplicable, the case is made out, there being no further requirement of mens rea: see Ahnee v DPP, ante: Harris v Harris Att. Gen. v Harris [2001] 2 F.L.R. 895.

“Any act done or writing calculated to bring a court or a judge of the court into contempt or lower his authority is a contempt of court.”  R v Gray (1900) 2 Q.B. 36 at 40.

[42]          His next answer under oath is that he did not mean to refer to the Judiciary but the party in power which could go to any length. True it is that he was attacking the party in power but, at the same time, by doing so, he was also hitting at the Judiciary, without any factual basis but only on hearsay by making disguised suggestions as to how the judgment  should go. Such allegations or imputations that a Court bows to external pressure amounts to scandalizing the court: MB Shangi Advocate v High Court of Punjab and Haryana 1991 SOL Case No. 071; AG (NSW) v MUnday [1972] 2 NSWLR 887.

[43]          The particular topic, he stated, was the talk of the town. It came out on 7 December even if normally it comes out every Thursday on account of Thursday being a public holiday. The PDM case vs the Electoral Commission was the main focus of the country at the time. In all objectivity, what was Mr Volcere hoping to achieve by making such remarks in an article as are impugned against him on the eve of judgment day other than a suggestion that the judgment should go a particular way, failing which the Court of Appeal will lose the little credibility which it has.

[44]          In a small island like Seychelles, its impact may be very pernicious. As was stated by the Privy Council -

“It is permissible to take into account that on a “small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalizing the court on a small island is greater.” Ahnee & Ors v DPP (1999) AC 294.

[45]          He starts the article by saying that he has it from highly credible sources. When he revealed his source, it is barely credible. It is pure hearsay. “David is going in” was at the time mere speculation from the evidence. The first question any layman asks to such a statement is: “How do you know?” As a professional, he accepted it as a fact because it fed his prejudices.

[46]          His answers in cross examination do not follow. Asked about the alleged support which Twomey J had for her appointment, his answer was that it is normal that a  brother should celebrate her appointment. What he says is simple logic is no logic at all. What he says is common sense is no common sense at all. It was not support after the fact but support for the appointment to the office that was the issue. On the issue of perks, he says it can mean anything. On the issue of foreign judge, he evades the question. To him, the truth lies in what he has stated and what he believes in. Facts put to him are lies. People who give ordinary meaning to ordinary matters are misinterpreting him.  

[47]          He maintained even against the facts presented to him that whatever he wrote about the particular judge was factual and correct. She gets all the perks, she gets this, and she gets that and first class ticket. To him, his article was factual. He disagreed that his article was an invention of his mind. His answers suggest a fixation in his ideas and perceptions about what he wrote.

[48]          What did he mean by the sentence: “We hope that she will not find it very difficult to rule against the wishes of the ruling party.” He played on the fact that he had predicated his comment on the pending judgment in terms of hope. Learned Counsel also made submission on the hope aspect of the article. It was all right for his newspaper to hope that the judgment will go its way. But the sentence is tendacious. The time at which it was published and the words are a disguised suggestion that she should rule in favour of the wishes of the appellant. When I say to someone: “I hope you will not do this!” I want him to do the contrary. That is plain common sense.

[49]          Intention is not an element of the offence even if it is a factor to be taken for purposes of sentencing. In Director of Public Prosecutions v Masson and Anor 1971 MR 293, this is what the Court stated:

“In a contempt charge arising out of a newspaper article attacking the integrity of a court the question to be determined is not what import the writer intended the article to have but what import the article itself is calculated to have.”

[50]          One point that was raised at the court below is the celerity with which the judge wanted this case disposed of. That is in the very nature of a contempt case. It is in the interest of every one that contempt matters are dealt with in a manner which minimizes the damage done to the public image of the Judiciary by the publication.

[51]          The rationale behind a contempt case may be gauged in Lord Salmond’s dicta in the case of Morris v The Crown Court 1970 Q.B. at 129:

“Every member of the public has an inalienable right that our courts shall be left free to administer justice without obstruction or interference from whatever quarter it may come. Take away that right and the freedom of speech together with all other freedoms would wither and die, for in the long run it is the courts of justice which are the bastions of individual liberty.” 

[52]          To exercise one’s freedom of expression to say that judges or Ministers or public servants or CEOs or Board Directors are over-paid and have fat salaries is an exercise of freedom of expression. But to say that a particular Judge has been elevated to the Bench with the support of her brother who is in the corridor of power, that she gets hefty perks and benefits and, on that account, it is hoped that she will deliver a right decision in a matter pending before her is demeaning of her as well as of the administration of justice in the objective sense: We agree with Souyage J in R v Grandcourt SLR 1967 35:

“The truth or the falsity of the allegations contained in the article is immaterial, for what the law punishes as contempt is inter alia any writing whether in the form of comments or allegations of facts which is capable of interfering or tends to interfere with the course of justice.”     

[53]          The publication of matter calculated to prejudice the fair trial of a pending cause is an absolute offence: R v. Odhams Press Ltd, ex p. Att. General [1957] 1 Q. B. 73, DC. Regarding the mens rea required:

“the mens rea required … is an intent to interfere with the course of justice. As in other branches of the criminal law, that intent may exist, even though there is no desire to interfere with the course of justice. Nor need it be the sole intent. It may be inferred, even though there is no overt proof. The more obvious the interference with the course of justice, the more readily will the requisite intent be inferred.” 

[54]          It is very unfortunate that when journalists are on trial on matters of contempt of court, it is looked at as if it is a fight for turf: the media v. the courts. This has made learned counsel to make the extraordinary statement that this case was a contempt of the media. We take it as a lapsus lingua.

[55]          The well advised know that media and the courts are partners rather than opponents in the exercise of giving voice to the people. The Courts are as concerned as much as the media and the legal profession  that people have a right to be informed and that, on that account, people should be free to express themselves. However, none should overlook the fact that, after the Constitution has recognized the fundamental rights and freedoms, it has also circumscribed them with the qualification that all those freedoms are subject to the rights of others and the public interest.

[56]          When the media is exercising the right to freedom of expression, it has an added  responsibility on account of the power it wields in society: the responsibility to inform. That responsibility to inform does not include the right to misinform. The public has a right to know the truth, as far as the truth of the matter may be ascertained, not mentally polluted by untruths.

[57]          We are of the view that there is no basis for saying that the conclusion reached by the learned judge was wrong. We see no merit in Grounds 1 to 8. We dismiss the appeal on conviction.

GROUND 9 AND 10

[58]          Grounds 9 and 10 relate to the sentence. Under Count 9, there is a complaint of judicial bias against the appellant for the only reason that the learned judge stated that learned counsel had “moved” the court not to show mercy. We have gone through the record. What learned counsel had stated was not that he had instructions from his client to seek no mercy. The word “moved” was unfelicitous. Learned Counsel had not made any motion to that effect his client. He had so submitted on the instruction of his client. However, the use of that word does not don the Judge with any cloak of bias. If he had been biased, we are permitted to say that he would not have given the appellant such a light sentence with non monetary option when account is taken of the fact that we know from the appellant himself that all the copies had been sold. The business aspect of the media should not be overlooked by courts at the time of sentencing.

[59]          Learned counsel also stated that it is the appellant who gave this island freedom of expression. Nobody gave anybody freedom of expression. Not even the Constitution gives its people freedom of speech. Speech and the freedom to use it came with us with our birth as human beings. However, we agree with learned counsel that the option given by the learned judge for the publication of an apology is not provided for by law so that we quash that part of the sentence which gives him that option. 

 

S. Domah (J.A)

 

I concur:.                                ………………….                                           J. Msoffe (JA)

I concur:.                                ………………….                                           F. Robinson (JA)

 

Signed, dated and delivered at Palais de Justice, Ile du Port on 12 December 2014