Dhooharika v The Director of Public Prosecutions

The offence of scandalising the court remained part of Mauritian law. Its compatibility with section 12 of the Constitution of Mauritius depended on whether it was reasonably justifiable in a democratic society, with local conditions relevant. The offence required a real risk of undermining public confidence in the administration of justice. The prosecution had to prove beyond reasonable doubt that the defendant acted in bad faith. Good-faith criticism of judicial acts was protected, even if not objectively fair. Bad faith could be shown by an intention to undermine public confidence or subjective recklessness as to that risk. An alleged contemnor was entitled to a fair trial and, where good faith and imprisonment were in issue, normally to give oral evidence. The appeal against conviction was allowed.

The appellant, a journalist and editor of Samedi Plus, was convicted by the Supreme Court of Mauritius on 17 October 2011 of contempt by scandalising the court and sentenced to three months’ imprisonment. The newspaper had reported and commented on allegations by a disbarred barrister against the Chief Justice. The Supreme Court refused special leave to appeal on 10 May 2012. The Board later granted leave, and execution of the sentence was stayed. The appeal concerned the continued existence and ingredients of the offence, the fairness of refusing oral evidence, the conviction, and sentence. It also raised whether imprisonment was appropriate without an opportunity to make submissions in mitigation.

1. Existence and constitutional compatibility. Lord Clarke, delivering the judgment of the Board, held that scandalising the court continued to exist in Mauritius. The statutory abolition of the offence in England and Wales under section 33 of the Crime and Courts Act 2013 did not determine its status in Mauritius. The Board followed Ahnee v Director of Public Prosecutions [1999] 2 AC 294. Local conditions remained relevant, although the Board would not distinguish between territories merely by reference to size.
2. Ingredients. The actus reus required an act or publication objectively likely to bring a court or judge into contempt or lower judicial authority, with a real risk of undermining public confidence in the administration of justice. The offence protected the administration of justice, not the feelings of judges. Good-faith criticism of a judicial act remained protected: R v Gray [1900] 2 QB 36; Ambard v Attorney General for Trinidad and Tobago [1936] AC 322.
3. Mens rea and burden. Once good faith was asserted, the prosecution bore the legal burden of proving bad faith beyond reasonable doubt. An intention to undermine public confidence, or subjective recklessness as to whether that would occur, was evidence of bad faith. A more general state of mind would not ordinarily suffice.
4. Fair trial. An alleged contemnor was always entitled to a fair trial. Where good faith was in issue and imprisonment was possible, the appellant should have been permitted to give oral evidence. The refusal deprived him of a fair hearing under article 10 of the Constitution of Mauritius.
5. Application and orders. Reading the publication as a whole, it principally reported Mr Hurnam’s allegations and did not adopt them as the appellant’s own views. Ill-judged comments did not prove bad faith. The appeal against conviction was therefore allowed. The sentence appeal did not arise, but the Board stated obiter that mitigation submissions should be heard before sentence. The respondent was ordered to pay the appellant’s costs, subject to any contrary submissions within 21 days.

1. Privy Council: The appeal against conviction was allowed.
2. Supreme Court of Mauritius: On 17 October 2011, the appellant was convicted of contempt by scandalising the court and sentenced to three months’ imprisonment.
3. Supreme Court of Mauritius: On 10 May 2012, special leave to appeal to the Board was refused. The Board subsequently granted leave, and execution of the sentence was stayed pending its decision.