R v Frater
| Jurisdiction | Jamaica |
| Judge | Henry, J.A.,Kerr, J.A. |
| Judgment Date | 12 October 1979 |
| Neutral Citation | JM 1979 CA 28 |
| Docket Number | Criminal Appeal No. 255 of 1977 |
| Court | Court of Appeal (Jamaica) |
| Date | 12 October 1979 |
Court of Appeal
Henry, J.A.; Kerr, J.A.; Carberry J.A.
Criminal Appeal No. 255 of 1977
Mr. Berthas Macaulay, Q.C., Mr. Bentley Brown, Mr. Rudolph Francis, Miss Hilary PhillipsMrs. M. MacaulayMrs. G. Saunders, and Mr. Lloyd Shackleford for appellant.
Mrs. M. McIntosh for the Crown.
Criminal Law - Appeal against Conviction — Contempt of Court.
The appellant, an attorney-at-law, appeared in the St. Catherine Circuit Court for Michael Miles one of two persons charged with murder. One of the prosecution witnesses was the father of the deceased. During the course of cross examining this witness the appellant asked certain questions designed to show that the deceased and the accused had been friends and had in fact at one time been jointly charged for theft and acquitted. At the close of the re-examination of the witness the learned trial judge asked some questions relating to the association between the deceased and the accused. Finally the following dialogue ensued:–
“His Lordship: The last question I want to find out from you now. After the trial between - let me write it down and you listen to the question. Listen carefully. After the trial of your son and Miles, did Miles continue to visit your son?
Witness: No.
Mr. Frater: M'Lord, I am objecting to this. I want to put my protest to this trend of questioning.
His Lordship: What are you objecting to?
Mr. Frater: I am objecting to that in open Court before the jury in a matter that you have said that is not relevant; now you are making it relevant.
His Lordship: I said nothing about it. It is not relevant? If you take your seat, please….
Mr. Frater: I would like you to answer… my question.
His Lordship: I am the judge here,
Mr. Frater: but I am representing two men here and I have to stand up and protect them and I don't want any inference that should go to the jury that should not go and I want it recorded.
His Lordship: Everything is being recorded.
Mr. Frater: And that is why I am saying it. These people will have to come to a decision and I don't think that line of questioning is relevant.
His Lordship: You raised it and therefore I have to know what it is all about.
Mr. Frater: Not to the extent of the chap's Schooling.
His Lordship: Yes, what?
Mr. Frater: What answer would you expect from the person when you asked that?
His Lordship: You take your seat.
Mr. Frater: No, M'Lord, I am not sitting. This is something I would like you to straighten. I am an officer of the Court just as you.
His Lordship: You are obstructing the Court.
Mr. Frater: I am not sitting, I am standing for the men I am defending. You cite me. You can do anything. You lock me up as well; but I am standing up because that is unfair, that is not justice.
His Lordship: I am going to adjourn for ten minutes and when I come back you must show cause why I must not cite you for contempt.
Mr. Frater: You must do that, and I will show no cause for it.” After the adjournment the appellant was convicted of contempt of Court and fined $500.00. He appealed against that conviction.
At the hearing of the appeal three of the six grounds filed were abandoned. Counsel for the appellant placed reliance mainly on the fourth ground filed which was as follows:–
“The learned trial judge although not required to state with that degree of particularity required by the Indictments Act, of the charge against the appellant, for Contempt of Court, was wrong in law in failing to inform the appellant of the specific charge against him and giving him an opportunity for explanation before arriving at his verdict.”
In support of this ground he referred to re Pollard [1868] L.R. 2 P.C. 106, Chang Hang Kiu v. Piggott [1909] A.C. 312Coward v. Stapleton [1953] 90 C.L.R. 573, Appuhamy v. R [1963] 1 All E.R. 762, Commissioner of Police v. Wood [1956] 1 W.A.L.R. 71, re Bachoo (1962) 5 W.I.R. 247, Maharaj v. Attorney for Trinidad [1977] 1 All E.R. 411 and re Perehadsingh (1960) 2 W.I.R. 340. These cases all support the principle originally formulated in re Pollard that “no person should be punished for contempt of Court which is a criminal offence, unless the specific offence charged against him be distinctly stated and an opportunity of answering it given to him.” This principle contemplates two separate requirements (a) the formulation of a specific charge and (b) giving to the person charged an opportunity to answer that charge. Counsel for the appellant submitted that no specific charge had been formulated by the learned trial judge and indeed that upon reading his report and the transcript it is not clear whether the alleged contempt of Court was:–
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(a) obstructing the Court,
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(b) disobedience of a ruling of the Court or
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(c) disobedience of a direction by the learned trial judge to counsel to take his seat.
In addition to the transcript of the dialogue already quoted, reference was made to the following passages in the report and the transcript of the judge's remarks respectively:–
“At the last answer Mr. Frater sprang to his feet in a rage and said he was objecting to the questions being asked by the Court. He said he was also recording his protest to ‘this trend of questioning.’ I told him that the questions were relevant, that his objection was noted and that he should take his seat. He refused. Twice in clear and unmistaken terms he was ordered to take his seat so that the business of the Court could continue.’ He was given time to comply. Mr. Frater was adamant. He refused to take his seat, invited the Court to cite him for contempt and by his demeanour, indicated that he was going to stand his ground. He was given every opportunity to obey the ruling and to avoid the brand of contumacy in the course of proceedings during a trial. Having made his point that he was objecting to the questions of the trial judge and knowing that it was recorded, his only intention to remain standing thereafter like a statue was to obstruct the proceedings and to prevent any further questions from being asked.
No cause has been shown in this case. It is a wilful obstruction of the Court and a wilful conduct to disobey the ruling of the Court, so I find him guilty of contempt.”
In my view the last passage merely indicates the view of the learned trial judge that the disobedience of his ruling was wilful conduct and constituted wilful obstruction of the Court. Counsel for the appellant further submitted that disobedience of a direction by a judge to counsel to take his seat cannot ipso facto constitute contempt of Court if counsel is properly performing his duty of representing his client's interests, and that in the instant case there was no ruling by the learned trial judge or, in the alternative, if there was a ruling, counsel was merely endeavouring to ascertain or clarify the ruling. In my opinion the incident must be viewed in the light of the circumstances obtaining at the time. The appellant was objecting not to a question being put to a witness by opposing counsel but to a question or a line of questioning being put by the trial judge and the ground of the objection was that the question or line of questioning was not relevant. It must, I think, be assumed that a trial judge will only put to a witness questions which he considers relevant. Where objection is taken to such a question on the ground of its relevance there can hardly be a “ruling” in the ordinary sense as on a determination of issues raised on submissions made by opposing counsel. Counsel making the objection can expect no more than that the judge will consider his objection before deciding whether to pursue the question or the line of questioning as the case may be. If therefore the judge intimates that the objection has been noted and asks counsel to take his seat this is tantamount to a ruling and ought to be an end of the matter unless counsel seeks the permission of the judge to elaborate the ground of his objection or to bring to attention some matter in support of his objection to which he has not previously referred. In the instant case there is no indication from the transcript that the appellant was pursuing any such objective when he refused to sit. In my view his conduct could be regarded as constituting a wilful obstruction of the Court. Counsel for the appellant has conceded that if the sentence “You are obstructing the Court” had appeared after the next sentence spoken by the learned trial judge “I am going to adjourn for ten minutes and when I come back you must show cause why I must not cite you for contempt” that would have been a sufficient specification of the charge of contempt of Court being made against the appellant. To my mind the order in which the sentences appear is immaterial if together they specify the charge being made. The sentences are separated b, what amounts to an interruption by the appellant and in my view they ought to be read together. If, as I find, the specific offence charged against the appellant was distinctly stated, there can be no doubt that an opportunity of answering it was given to him. The learned trial judge adjourned the Court for this purpose and on the resumption the appellant was represented by counsel who made submissions on his behalf. In my view this ground of appeal fails.
The second ground argued was to the following effect: “The learned trial judge… did not cite the appellant for Contempt of Court, but only required the appellant to show cause why he should not be cited and proceeded wrongly on the basis that he had cited him for contempt.”
The transcript discloses that the learned trial judge adjourned the Court for ten minutes saying…. “when I come back you must show cause why I must not cite you for contempt.” Upon the resumption he was addressed by counsel on behalf of the appellant. At the end of that address he reviewed the incident and concluded by saying “No...
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