My trial for contempt of court, part 5: mens rea, tone and tenor

Parts 1 to 3 dealt with the specific stings that the Attorney-Generals’ Chambers complained of, from two articles on this blog Yawning Bread: “377 wheels come off Supreme Court’s best-laid plans” published on 5 October 2013 and “Church sacks employee and sues government” published on 12 October 2013. My lawyers vigorously contested the accusations, describing the AGC’s case as a “house of cards”. Part 4 dealt with the legal burden and examples from the Shadrake case.

During the trial on Tuesday 21 October 2014, several other issues were also addressed that did not refer specifically to any statement complained of, but were nonetheless important overarching issues. I will record what was said on these points here in this fifth (and last) article.

pic_201410_12Mens Rea

My defence argued that it was incumbent on the prosecution to prove that I had intention to scandalise the judiciary, and that they are unable to do so. Mens Rea, they said, has not been fully visited in previous cases, including Shadrake. In earlier cases, it seemed to have been accepted that the deliberate act of publishing was sufficient to prove intent. However, a very recent decision by the Privy Council in London, relating to a case that originated in the Mauritius, laid the matter down differently.

In that case, the former Chief editor of Samedi Plus, Dharmanand Dhooharika (pictured left) , who had been convicted of the same charge I am facing — contempt of court (scandalising the judiciary) — and sentenced to three months’ imprisonment, had his conviction and sentence overturned by the Privy Council. Primarily, the Privy Council determined that he had not received a fair trial (for reasons why, see this article), but along the way also dealt with the issue of mens rea.

My lawyers’ written submission encapsulates the position emanating from that April 2014 Privy Council decision:

Dhooharika at [46] makes reference to the seminal text on Contempt of Court, Arlidge, Eady and Smith at 5 – 248, which notes that the requisite mens rea for contempt of Court requires the prosecution to “prove an intention to interfere with the administration of justice, and in this context that would mean the undermining of public confidence”.  Specific reference is made (at fn. 372) to the case of Att Gen v News Group Newspapers Plc [1989] 1 Q.B. 110 (“News Group Newspapers”).

In News Group Newspapers, Watkins L.J stated, with regards to the requisite intention to make out a charge of contempt of Court:

As to that, however, I feel bound to say that I should be surprised if the law were authoritatively declared to be that something less than a specific intent will do. After all, what is in contemplation here, as has been in some previous cases of criminal contempt, is serious criminal conduct accompanied by the possibility of the infliction of drastic penalty.

Both the approach in Arlidge, Eady and Smith and News Group Newspapers were affirmed by the Privy Council in Dhooharika at [46]:

In the opinion of the Board, these decisions, although not conclusive, give some support for the conclusion that the prosecution must prove that the defendant intended to interfere with the administration of justice”.

The Privy Council justifies its reasoning as follows:

Since the court is here concerned with a criminal offence, the burden must be on the prosecution to establish the relevant facts beyond reasonable doubt. There can be no legal burden on the defendant. Thus, at any rate once the defendant asserts that he acted in good faith the prosecution must establish that he acted in bad faith”. (emphasis added)

It is apposite to note that Mr Au has sworn, on affidavit, that his writings are done in “good faith, with absolutely no intention to bring the institution of the judiciary into disrepute nor to call into question its impartiality”.

The Applicant [i.e. the AGC] was given leave to file a rebuttal affidavit to Mr Au’s affidavit but has chosen to leave Mr Au’s evidence unrebutted. It has accordingly failed to lead any evidence or preferred any argument that suggests that Mr Au was acting in bad faith, with the requisite intention to undermine the administration of justice in Singapore.

In response, the AGC argued that it is not open to Justice Belinda Ang to revisit the issue of mens rea, since she is bound by the Court of Appeal in Shadrake, which applied the pre-existing rule (that publication was sufficient proof of intent). Chief Prosecutor Tai reiterated this point in his oral submission by saying, “[the] issue was clearly stated in Shadrake by the Court of Appeal: the act of publishing.”

My lawyers pointed out that actually it was not even argued in Shadrake-CA, and therefore it is not obvious that this is settled law; and that the per incuriam rule can be invoked. In reply, the AGC quoted the Court of Appeal in Shadrake to make the point that it was clear in its holding on the mens rea test:

… for the avoidance of doubt, the necessary mens rea was succinctly and rightly enunciated by the Judge [Quentin Loh in Shadrake, High Court] as follows…

There was no dispute that the only mens rea which is needed at common law is that the publication is intentional; and that it is not necessary to prove an intention to undermine public confidence in the administration of justice.

Tone and tenor

The AGC argued that the “tenor, tone and manner of the first article leaves an average reasonable reader with the impression that it is an exposé of the maladministration of justice”.

My lawyers responded strongly by saying that once again, the AGC was using words such as “exposé of the maladministration of justice” that do not appear in the article. Anyway there were caveats in the article itself that cautioned the reader about the contingent nature of the hypothesis.

The AGC also argued that my second article had a “contemptuous theme and tenor”. Additionally, in a package of written submissions, given to my lawyers mere minutes before the hearing began, the AGC complained that the phrasing I used in the second article was graphic. “Limp as a flag on a windless day”, the AGC says,

projects onto the mind of an average reasonable reader, articulated through written words in the form of a creative metaphor, a graphic image which symbolises his lack of confidence in the Judiciary.

Aamer Anwar (at left)

Aamer Anwar (at left)

In response, Zheng Xi pointed out that the tone and tenor in cited cases (Blackburn, Anwar) were much stronger, yet these accused persons were not found in contempt. Yawning Bread is a blog. Not everyone should be expected to write in deeply respectful terms, complete with the decorum expected of the legal profession. (For more on the Aamer Anwar case and his “angry and petulant criticism”, see the judgement and this commentary.)

In my lawyers’ written submission, they argued that what I had written

can in no way be characterized as a deliberate and provocative vilification of the courts… no suggestion… that the Courts are acting improperly.

In any event, I had attached to my affidavit twelve examples of foreign news articles and commentary wherein the respective authors made adverse or speculative comments about courts, and said

I have seen how articles in these publications, when touching on court cases or justice systems generally, freely add observations or comment as to the quality, and sometimes the behaviour of the courts, or of the level of confidence the public has in their courts. There is nothing rare or exceptional in such comments.

The AGC’s response was that my

perceived “normality” or “acceptability” of such remarks does not exonerate him [i.e. me] of liability. Although imputations of judicial impropriety per se do not render a statement contemptuous, the inquiry does not stop there. The Court still needs to ascertain whether the statement poses a real risk of undermining public confidence in the administration of justice, and whether the alleged contemnor has shown rational basis to satisfy the Court that the statement is fair criticism.

Sometime towards the end of the proceedings, as indicated by my notes, Tai mentioned this: The Chief Justice wanting to hear a case in itself is not remarkable. The difference is between openly and directly saying so and added implicit meanings — which my lawyers contend none existed. However, I think this point by the AGC’s Tai, while made in the minutes following the debate about tone and tenor, was not meant to relate directly with this question.

Ended early

Although two full days, with a third reserve day, had been set aside for the trial, it ended at about 15:45h on the first day. Having started at 10:00h, with a 90-minute break for lunch, it took a total of four and a quarter hours.

Ang reserved judgement. I do not know when she will deliver her decision.

Links to:

Part 1: First article, first sting,
Part 2: First article, second sting,
Part 3: The second article,
Part 4: Legal burden and Shadrake precedents

(Since judgement has been reserved and the case is not totally over, please understand I will not publish readers’ comments.)

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