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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
APPELLATE JURISDICTION
CIVIL APPEAL NO. ABU 11 of 2013
(High Court HBC 343 of 2011)
BETWEEN:
FIJI TIMES LIMITED
First Appellant
BRIAN O'FLAHERTY
Second Appellant
FRED WESLEY
Third Appellant
AND:
THE ATTORNEY GENERAL OF FIJI
Respondent
Coram: Almeida Guneratne JA
Fernando JA
Kumar JA
Counsel: Mr. J. Apted and Ms. M. Fong for the Appellants
Ms. R. Mani, Ms. L. Ramoce and Ms. O. Solimailagi for the Respondent
Date of Hearing: 10 September 2015
Date of Judgment: 2 October 2015
JUDGMENT
Almeida Guneratne JA
Background to the Appeal and the Essential Facts
[1] This is an appeal from convictions entered on 1 October, 2012 where the Appellants (original Respondents) were found guilty of
the offence of contempt of (scandalising) the Court and the sentences imposed by the Court's Judgment dated 20 February, 2013.
[2] The findings of the High Court were based on an article which appeared in the Fiji Times on 7 November 2011 titled "Fifa probes Doc."
[3] The impugned article contained the words and statement:
"You should be aware that with no judiciary there, his case has been reviewed by one Australian Judge. It's not a Court per se."
[4] The story containing the said words and statement appeared in the Sports News part of the 1st Appellant Newspaper. The words were part of a quotation from a statement made by one Tai Nicholas who was described as the General Secretary of the Oceania Football Confederation.
[5] The reference to "his case" in the article (hereinafter referred to as the Principal article) was to a lawyer's (Dr. Muhammed S.D. Sahu-Khan) case heard and determined by a Commissioner appointed under Section 85 of the Legal Practitioners Decree (LPD) No. 16 of 2009. The lawyer had been found guilty of professional misconduct and struck off from the Roll of Barristers and Solicitors in Fiji. The lawyer was holding the post of President of the Fiji Football Association at the time. He also held an official position with the Oceania Football Confederation (OFC).
[6] On 30 June 2012 there had been published another article which shall be commented on at a later stage in this Judgment.
[7] On 11 November 2011, the High Court granted the Respondent (the Attorney General) leave to issue contempt proceedings for the printing and publishing of the article in question.
[8] The Appellants having pleaded 'not guilty' to the contempt charges the matter proceeded to trial at the conclusion of which the High Court by its Judgment dated 2 October, 2012 found the Appellants guilty of criminal contempt for scandalising the Court and subsequently convicted and imposed a fine of FJ$300,000.00 and costs in the sum of FJ$2,000.00 on the 1st Appellant (the Newspaper Company), a fine of FJ$10,000.00 and costs in the sum of FJ$2,000.00 on the 2nd Appellant (the General Manager holding the position of 'Publisher' of the 1st Appellant) and a term of six months imprisonment to be suspended for a period of two years on the 3rd Appellant (the Editor in Chief of the 1st Appellant).
[9] This appeal is against the said convictions and sentences.
Some Preliminary Reflections
[10] The appeal raises several important matters for the law in Fiji in regard to a Newspaper's liability as a legal entity in the
publication of an article that may be held to have scandalised and been in contempt of the Judiciary together with the liability
of the publisher and its Editor-in-Chief of the Newspaper.
[11] Is mere publication sufficient to establish the offence or is mens rea an added requirement?
[12] What is the test to be applied in determining whether an impugned publication would have the effect of scandalising the Judiciary?
[13] In adapting such a test how relevant would be or what consideration ought to be given to the socio-constitutional ethos taken in the historical context of the Republican Island of Fiji?
[14] Could a defence of 'truth' raised expressly or impliedly be entertained in the law of Fiji?
[15] What is the state of the law in Fiji in regard to a publisher's and an editor-in-chief's liability? Does the law in Fiji recognise a concept of strict liability in that connection or not?
[16] What criteria should be applied in sentencing for contempt of (scandalising) the Judiciary through Newspaper publications bearing in mind that, the impugned article was in relation not to a Court stricto sensu but rather in relation to a Commissioner's decision in terms of the Legal Practitioners Decree?
[17] Is there room or reason for a call for change or reform in the law of Fiji in the context of contempt of (scandalising) the Judiciary through Newspaper publications?
[18] Finally, could it be said in relation to the particular case under consideration that the trial Judge (a) erred and/or misdirected himself in (a) convicting the appellants and (b) imposing the sentences he did?
Grounds of Appeal
[19] The grounds of appeal as to both the convictions and sentences are contained in the Notice of Appeal dated 22 March, 2013 (pages
00001 to 00003, Record of the High Court {RHC} ), a Supplementary Notice of Appeal dated 9 April, 2015 and a further supplementary
Notice of Appeal dated 21 August, 2015 which were entertained by Court without objection.
[20] I shall now proceed to examine the said grounds as against the Judgment of the learned High Court Judge and the reasons given by His Lordship therefor in the light of the written submissions tendered and the oral submissions made together with the several authorities cited on behalf of the parties.
The High Court Judgment dated 1 October, 2012
In the Matter of the Convictions
[21] The learned High Court Judge in finding the Appellants guilty and convicting them premised his findings on a number of interconnected factors and principles which may be discerned from the Judgment as follows.
Factors taken into consideration by the High Court
On the Offence of Contempt (the scandalising) of Court
[22] His Lordship took into account the following factors viz:
(a) the identity of the publication.
(b) the readership of the publication.
and (c) the nature of the jurisdiction in which the words were published.
Identity of the Publication
[23] In regard to the identity of the publication the Court noted that the story appeared in a daily English language Newspaper that
has a nationwide circulation. The headline placed the story in the context of football (soccer) which is played throughout the country
and followed by a large section of the community and related to a person who was well known throughout the community as a soccer
administrator and legal practitioner.
Readership of the Publication
[24] In considering the readership, His Lordship opined that "it is sufficient to say that the subject matter of the story would have
attracted the attention and interest of most members of the community who follow the sport soccer and those who whilst browsing the
sports section would have caught the reference to 'Doc' in the heading" (p.8 of the Judgment RHC), 'Doc' in the heading meaning (Dr.)
Muhammed Sahu Khan, well known soccer administrator and legal practitioner.
[25] I have no reservations whatever in regard to the said two factors taken into consideration by the learned trial Judge.
Nature of the Jurisdiction
[26] On that aspect it is necessary to say something more in view of the submissions made on behalf of the Appellants by Mr. Apted.
The Privy Council Ruling in Ahnee and Others v. Director of Public Prosecutions [1999] UKPC 11; [1999] 2 WLR 1305
[27] The learned High Court Judge made reference to the following passage at page 1305 in that decision viz:
"Their Lordships have already concluded the offence of scandalising the court exists in principle to protect the administration of justice. _ _ _ But 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 scandalising the court on a small island is greater _ _ _Moreover it must be borne in mind that the offence is narrowly defined. It does not extend to comment on the conduct of a judge unrelated to his performance on the bench. It exists solely to protect the administration of justice rather than the feelings of judges. There must be a real risk of undermining public confidence in the administration of justice."
[28] That was in an appeal from the Supreme Court of Mauritius.
[29] Comparing Fiji to Mauritius (both being small island states) the learned Judge, having reflected on the constitutional history of Fiji since independence in 1970, stated that, that "would at times have meant that the administration of justice has been more vulnerable than in the United Kingdom" and espoused the view that "the need for the offence of scandalising the Court in Fiji as an island state ... ... is greater than in a developed state." (p.9 of the Judgment).
The Privy Council Ruling in Dhooharika v. Director of Public Prosecutions
Commonwealth Lawyers' Association intervening (2014) UKPC 11
[30] That was also an appeal from the Supreme Court of Mauritius on which Mr. Apted placed reliance.
[31] It was a case where an editor of a Newspaper was charged for scandalising the Court. He had published an interview he had had with a person who was, interalia, a disbarred barrister who had been abusive of the Chief Justice's conduct. He convicted and sentenced to three months' imprisonment.
[32] The Privy Council allowed the editor's appeal holding
(a) that, in as much as the convicting Court had thought it sufficient to act on affidavit evidence which had the effect of denying the contemnor a fair trial and;
(b) that, a person who was genuinely exercising his right to criticise and was not acting in malice or attempting to impair the administration of justice was not liable for the offence of scandalising the Court and that a defendant who had acted in good faith had a defence to the allegation. ..."
[33] It would thus be seen that, the factor relating to the "nature of the jurisdiction" which was taken cognizance of by the Privy Council in the earlier decision in Ahnee & Others (supra) had not been departed from in Dhooharika (supra).
[34] In fact, the Privy Council in Dhooharika followed Ahnee on that matter when it held that the offence of scandalising the Court, which was narrowly defined and existed solely to protect the administration of justice rather than the feelings of Judges, was not incompatible with the right to freedom of expression provided that the restrictions on free speech were proportionate; that local conditions were relevant to the need of the offence; that, having regard to conditions in Mauritius, the offence of scandalising the Court was "reasonably, justifiable in a democratic society within the meaning of Section 12 of the Constitution of Mauritius; and that, accordingly, the offence continued to exist in Mauritius and could only be abolished by statute" (vide: The Head Note (1) continued on the basis of Paragraphs 33-34 and 38-41 of the Judgment).
[35] Ahnee's case was in the year 1999 which the learned High Court Judge derived assistance from in the year 2012 when he handed down his Judgment. Dhooharika was decided subsequently in 2014.
[36] In any event, as I observed earlier, on the matter under consideration Dhooharika followed Ahnee.
[37] Accordingly, in the absence of decided authority in Fiji to the contrary I see no reason to fault the factor of "nature of jurisdiction" which the learned High Court Judge took into consideration.
Applicable tests in determining whether contempt by scandalising is established
The Literal Test
[38] Mr. Apted, who appeared for the Appellants strenuously argued that, the proper test to be applied in determining whether there was contempt in scandalising 'the Court' was to look at the bare words contained in the impugned article that warranted the deduction that it amounted to undermining, confidence in or the authority of 'the Court' (or the judiciary).
[39] It would be necessary at this point to refer to the said article once again which read thus:
"You should be aware that with no judiciary there, his case has been reviewed by one Australian Judge. It's not a Court per se."
Recent Constitutional History Preceding the Publication of the Article
[40] On 10 April, 2009, His Excellency the President issued the Revocation of Judicial Appointments Decree No.4 of 2009 (RJAD) and as a consequence of Section 2(1) of the said Decree, there were no Courts of law and no judiciary in Fiji.
[41] This was a fact.
[42] Furthermore, the reference to "the Australian Judge" and "not a Court per se" was also a fact in as much as the case of the aforesaid (Dr) Muhammed Sahu Khan was heard and determined by a Commissioner appointed under the Legal Practitioners Decree.
Defence of Truth
[43] In other words, what the Appellants seem to say is that the article speaks for itself in that it merely records an actual fact existing at the time viz: that there is no judiciary functioning and that the article says nothing that seeks to scandalise the judiciary.
[44] That position to my mind contains the trappings of a defence of truth which is not part of the law relating to criminal contempt of Court in Fiji.
Order 52 of the High Court Rules (HCR)
Power to Punish for Contempt of Court
[45] In Australia and New Zealand, there is no contempt of Court statute. It is the English common law principles that are applicable. This is in contrast with a jurisdiction such as India where by an amendment brought in the year 2006 the Indian Contempt of Court Act, 1971, was amended introducing 'truth' as a valid defence.
[46] In Fiji, the power to punish for contempt of Court is conferred by Order 52 of the High Court Rules (HCR, 1988).
What are the Applicable Substantive Principles?
[47] In that regard there is no statute in regard to the applicable principles. They are presumed to be that of the common law as provided in Section 22 read with Section 24 of the High Court Act (Cap. 13A).
[48] In the result, in the absence of a statutory defence 'of truth' as contained in the Indian legislation, writing for the law of Fiji, could the trial Judge have accepted the argument based on a literal test?
[49] I think not.
The Real Risk Test
[50] Based on precedents the learned trial Judge held thus:
"It is my judgment that the words published in the Fiji Times and thus understood by a fair minded and reasonable reader do represent
a real risk to the administration of justice in Fiji by undermining the authority, integrity and impartiality of the Court and the
Judiciary."
(at p.11 of the Judgment)
Real Risk to the Administration
[51] In the absence of appointed Judges at the time in question, it was a Commissioner under the Legal Practitioners Decree that was
performing a judicial function, the Legal Practitioners Decree being a Presidential decree. Herein lay the broader concept of "Administration
of Justice" that, the trial Judge in his Judicial wisdom was obliged to respond to.
[52] I do not feel constrained to say that, the reference to "the Australian Judge" which was not a "Court per se" in the article was scornful, spiteful and derogatory if not insulting.
[53] Mr. Plumb, a New Zealander, who published the authentic article probably would have had no regard for those considerations.
[54] But, were not the Appellants 'reckless', to say the least, in having published the same in the Fiji Times?
[55] What effect would the article have had on the ordinary reader?
[56] Would it not have been reasonable for him or her to have been left with the reflection "Goodness! We have no judiciary in our country. Some Australian Judge who is not even a Court per se has found (Dr) Muhammed Sahu Khan guilty?" This last aspect is what the learned trial Judge responded to at pages 303-304 of the RHC referred to at page 5 of the Appellants written submissions dated 30 April, 2015.
An objective test in the context of the concept of "the reasonable man"
[57] The learned High Court Judge did not adopt a real risk test in the abstract. His Lordship made reference to the Court of Appeal decision in Parmanandan v. The Attorney General [1972] 18 FLR 90 which had held thus:
"the words complained of must be construed objectively and as a whole. The test is what any fair minded and reasonable man would understand" from the words that appeared in the publication." (RHC, p.303)
[58] Who then is a "reasonable man"?
[59] Lord Brown once visualised the reasonable man "as the man on the Clapham omnibus". An American writer saw him "as the man who reads the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves". (cited by Gregor L.J. in Hall v. Brooklands Auto Racing Club [1933] 1KB 205 at 224.
[60] He would not have the courage of Achilles, the wisdom of Ulysses or the strength of Hercules, nor "the prophetic vision of a clairvoyant" (Romer, L.J. in Hawkins v. Coulsdon & Purley UDC [1954] 1 QB 319, at 341.
[61] What then could have been the message that carried to "the reasonable man" reading the article in question other than to leave his mind with doubt as to the "administration of justice" in his country and the existence of a judiciary?
[62] This was the risk the article carried.
[63] The Article in my view was an aspersion on the whole governmental regime and the interim measures it had taken reflected in the Legal Practitioners Decree consequent to the Revocation of Judicial Appointments Decree (RJAD). The Judiciary being an essential arm of government the article carried the risk of undermining the judiciary. The Commissioner under the Legal Practitioners Decree had performed a judicial function in that interim period in pursuance of "administration of justice"
Undermining Public Confidence in the Administration of Justice
[64] Thus, undermining public confidence in the administration of justice" was the broader criterion that had to be looked at objectively
which in turn encompassed the "real risk test" within its fold.
The Notion of Scandalising
[65] The notion of "scandalising" in general is rooted in English common law.
[66] I have deliberately omitted any reference to 'Courts' or 'Judges' for the reasons which would become apparent in my reasoning to follow.
[67] From the time of R v. Almon [1765] 97 ER the doctrine of scandalising has been focussed on "judicial determinations", (Almon's case) and "Courts and Judges".
(See: the Australian High Court Case in Gallagher v. Durack [1983] 152 CLR)
[68] In that passage of time between Almon's case and the 20th century, in a 1899 decision of the Privy Council it had been said thus:
"Committals for contempt of Court by scandalising the Court itself have become obsolete in this country ... But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court ... may be absolutely necessary. ..."
McLeod v. St. Aubyn [1899] AC549, 561.
[69] No doubt, the reasoning in that case is reflective of a by-gone colonial era. Nevertheless that thinking is seen returning to Mauritius in the case of Ahnee & Ors. v. DPP (supra), in exactly a 100 years after the reference to "coloured populations" being omitted and "small islands", being substituted therefor in conjunction with the need for the offence to protect "the administration of justice" on the basis that such small islands are more vulnerable.
[70] Although Lord Diplock in Secretary for Defence v. Guardian Newspapers Limited [1985] A.C. 339, 347A referred to 'scandalasing' as being "virtually obsolescent", indeed, reminiscent of sentiments expressed by Lord Denning in "the Due Process of law", (Butterworths, 1979). The European Court of Human Rights as recent as 1997 in De Haes and Gijsels v. Belgium 24 February [1997] ECHR 7; [1997], 25 EHRR 1 stated:
"The Courts ... the guarantors of justice, whose role is fundamental in a state based on the rule of law – must enjoy public confidence. They must accordingly be protected from destructive attacks. ..." (at para. 37)
[71] It is to be recalled that it is the decision in Ahnee & Ors. (supra) which had impressed the trial judge in the instant case and followed in the Dhoorashika's case (supra), as recent as in the year 2014.
[72] For the aforesaid reasons I hold that both in regard to the factors taken into consideration by the learned High Court Judge on the offence of contempt by scandalising the judiciary and the tests applied, I have no reason to find fault with.
[73] For the aforesaid reasons I hold that prima facie the convictions against the Respondents stood vindicated.
[74] I say prima facie for the reason that, the questions of mens rea and strict liability remain to be addressed.
Shift from 'race' and 'colour' to 'class' based on illiteracy but with similar reasoning in the post-colonial era
[75] This is reflected in the Nigerian case of Atake v. The President of the Federation and Ors. (Unreported) SC 5/1981 – November 26, 1982.
[76] In that case, Amiagolu, JSC (local Judge of the Nigerian Supreme Court) stated:
"To allow people to insult, belittle or make caricature of the Courts or Judges ... is to expose the administration of justice to the grave danger of inhibiting the appreciation of our people of our Courts ... Against the background of a largely illiterate society any diminution of the authority and respect (for) (sic) is an invitation to chaos and disorder."
The emphases are mine.
The Learned High Court Judge's Approach
[77] Looking at the learned High Court Judge's approach it is apparent that His Lordship has stayed clear from the strains of elitism contained in the afore-quoted Judgments delivered at various times and in different countries but instead took into consideration the following factors which could be discerned from his reasoning viz:
(i) The smallness of the country.
(ii) Thus, the "Real Risk" subsumed within a broader test based on 'objectivity' (as I have sought to somewhat modify earlier).
(iii) In leading to the undermining of public confidence of the administration of justice.
[78] In regard to Fiji being a small country there can be no dispute.
[79] The "Real Risk" criterion within a broader test of objectivity in the context of the concept of "the Reasonable Man" also I have already dealt with.
[80] It is in regard to the third factor or criterion of "undermining public confidence in the judicial system" interconnected to the "real risk" factor that I felt I need to comment on further.
In the United Kingdom, Australia and New Zealand in contrast with the United States of America "Real Risk", "Remote Possibility" and "Clear and Present Danger"
[81] In the United Kingdom, Australia and New Zealand, the common law test of liability requiring "a Real Risk" has been contradistinguished with a "remote possibility", that, "public confidence in the Judicial system would be undermined." (see e.g. Solicitor General v. Radio Avon Ltd. [1978] 1NZLR 225, 234.
[82] That modern approach in those three developed countries stands in contrast with the United States, where, it has been consistently held that, an impugned publication must create a "clear and present danger" to "the administration of justice." (vide: Bridges v. California 314 US252, 270-271 (1941); Pennekamp v. Florida, 328 US331 (1946), Craid v. Harnly [1947] USSC 124; 331 US 367 (1947) and Wood v. Georgia [1962] USSC 142; 370 US 375 (1962).
[83] I have already held, agreeing with the learned High Court Judge's reasoning and approach that, there was a "real risk" subsumed in the application of an "objective test" in undermining public confidence in the Judicial system prevailing at the time of publication of the impugned article as opposed to "a remote possibility."
[84] Even on the "clear and present danger" test espoused by the American decisions there was "a clear and present danger" of undermining confidence in the minds of an ordinary reader, reading the impugned article that, "the administration of justice system stood undermined".
[85] "Undermining public confidence in the administration of justice" in general as opposed to "undermining the authority of the Courts," as a grounding justification for the offence of contempt by scandalising is traceable to an appellate decision in an English case from Trinidad and Tobago. (see: Chokolingo v. Attorney General of Trinidad and Tobago [1981] 1 All ER 244, p.248.
[86] Applying those considerations to the Fijian context at the time of the publication of the impugned article was there "a clear and present danger" of undermining confidence in the minds of an ordinary reader in Fiji that the administration of justice in Fiji stood undermined?
[87] As noted earlier by me, at the relevant time, following the Revocation of Judicial Appointments Decree (RJAD) there were no 'Judges' in the traditional sense.
[88] It is also to be noted that, (almost, if not all) cases, across the length and breadth of the globe have been in the context of contempt by scandalising "the Courts" or "Judges". This has been so ever since the decision in Almon's case (supra), in 1765 in England.
The emergence of the concept of the modern welfare State and the need to create other tribunals to administer justice to meet the ends and purposes thereof
[89] The above titular reflection needs no elaboration for it is history save as to say that, those "other tribunals" to meet and deal with modern socio-economic needs, complementing or in addition to the traditional judicial system had become entrenched as part of the administration of justice system.
Rejection of the classification of functions doctrine and any decision affecting the rights of a party coming to be regarded as a Judicial function – The seminal decision in the House of Lords in Ridge v. Baldwin [1964] 1 AC1
[90] By that decision in Ridge v. Baldwin, the earlier approach in looking at a functionary exercising a power (being an administrative officer and therefore not Judicial) and holding that, a decision emanating from the exercise of that power could not ground a cause for Judicial review was jettisoned and the consequence or end result of such a decision, in affecting the rights of an aggrieved person was taken to be the decisive factor.
[91] That is how in the history of jurisprudence the law came to be fashioned in absorbing into the fold of the system of administration
of justice, not only 'Judges' or "the Judiciary" in the conventional or traditional sense but also, other functionaries or tribunals
"in the system of administration of justice".
Application of the aforesaid considerations to the impugned article
[92] For the purposes of elucidation I recapitulate the words of the publication in question. It read thus:-
"You should be aware with no judiciary there, his case that is, ((Dr)Muhammed Sahu Khan being disbarred as a lawyer for professional misconduct) has been reviewed by one Australian Judge. It's not a Court (per se)".
(the emphasis is mine).
[93] No doubt the "Australian Judge" referred to therein was not a "Court per se". But, he was functioning as a tribunal under the Legal Practitioners Decree exercising functions of a judicial nature having the potential to affect the said (Dr) Khan's rights.
[94] He being an appointee under the Legal Practitioners Decree was executing functions in "the administration of justice system".
[95] I have no hesitation in holding that, the terms of the article were insulting and derogatory if not spiteful. I have already said so earlier.
[96] At the time in question, the Fijian community would not and could not have known whether and how and when the socio-political conditions of the country would change for the Commissioner under the Legal Practitioners Decree might have been called upon to hear and determine more cases of a similar nature.
[97] Thus, not only there was a "real risk" of "undermining public confidence in the system of administration of justice" as opposed to "a remote possibility" but also a "clear and present danger" in that regard, in the mind of an ordinary (reasonable) reader of the publication.
[98] In conclusion I hold that, prima facie, the learned High Court Judge's findings on the offence of contempt of scandalising "the administration of justice", on a broader interpretation which I have adapted and not confined to 'Courts' or 'Judges' stand vindicated.
Consideration of the Defences
[99] Now I proceed to consider the defences advanced on behalf of the Appellants.
Re: the veighled defence of 'Truth'
[100] I have already noted that, in Fiji, there is no statute that recognises 'truth' as a defence (like for instance, in India). Nor does the common law over the years has acknowledged such a defence.
[101] Although I may be found fault with for reading too much into the written submissions and the oral submissions made by Mr. Apted on behalf of the Appellants in that regard, in all judicial humility, I thought it would not be inappropriate for me to consider and reject the same for I feel obliged to express my views hereinafter as to the course of law our country ought to take.
The defence of absence of Mens Rea
[102] On that, the learned trial Judge held thus:
"If a publication was intentional and if the words published ... undermining confidence in the authority of the Courts or of the Judiciary there was no requirement to establish an additional element of Mens Rea."
(HCR, p.303)
[103] The learned High Court Judge, did state that " ... it may not have been the Appellant's intention" (emphasis is mine) to undermine public confidence in the administration of justice but the only intention was that the intention to publish the story. (p.304, ibid).
[104] Mr. Apted appearing for the Appellants dwelled on that aspect, I must acknowledge, with all his forensic prowess that has come to be well known at the bar.
[105] However, the learned trial Judge is seen recovering from that apparent inconsistency (even if it is to be called so) when he held that, "... the only relevant intention was the intention to publish the story." (p.304, ibid).
[106] Being asked by me (as I interjected) from learned Counsel as to his submissions on that aspect, Mr. Apted was heard to say that, the publication may have been "reckless", but there was no intention to undermine the "administration of justice" prevalent at the time.
[107] Although the publication of the impugned article was not intended to undermine "the administration of justice prevalent at the time, if it had that effect in the minds of an ordinary reader in Fiji causing a real risk on objective considerations, that was the test to be applied, which the High Court in effect applied and which I have no hesitation in condoning in the absence of any contrary authority in the jurisprudence of Fiji.
[108] Stated as a proposition for the current legal position in Fiji the same may be construed thus::
"That, even in the absence of a specific intention to undermine the administration of justice system in an impugned publication that would have that effect of running the risk of undermining the same and would constitute contempt in scandalising the 'system of administration of justice' in a small country (such as Fiji)."
State of the law in other Jurisdictions
[109] This is an area in which conflicting positions are seen in several jurisdictions.
[110] In England, Lord Hewart, C.J. ruled that liability did not require proof of intent. (vide: R v. Editor of New Statesman, ex parte DPP [1928] 44 TLR 301.
[111] That case has withstood the test of time in common law jurisdictions and as recent as 1995 in Singapore the High Court found the author, editor, printer and publisher of an article guilty of contempt, reasoning that intent was not required (vide: Attorney General v. Lingle [1995] 1 SLR 696.
[112] By contrast, in South Africa, in the leading case of State v. Van Niekert [1970] 3SA 655, it was held that intent is required to establish liability.
[113] There is yet another school of judicial thought where the notion of 'scurrilous abuse' has been employed. This is illustrated in a case from Hong Kong. A newspaper had attacked the local judiciary by, interalia, describing judges as "Swinish white-skinned Judges", "pigs" and "judicial scumbags and evil remnants of the British Hong Kong government". (vide: Secretary for Justice v. Oriental Press Group Ltd. [1998] 2 HKC 627, 666.
This was held to have been in contempt of Court in part because the comments were "scurrilous abuse".
[114] This may be compared with the Indian case of EMS Namboodivipad v. TN Nambiar AIR [1970] SC 215 where the Chief Minister of Kerala, had made a public statement accusing Judges of class bias. He had said:
"Marx and Engels considered the judiciary an instrument of oppression and even today ... it continues so ... judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well dressed pot-bellied man and a poor ill-dressed and illiterate person the judge instinctively favours the former."
[115] The Supreme Court upheld his conviction for Contempt of Court, stating that "the likely effects of his words must be seen and they have clearly the effect of lowering the prestige of Judges and Courts in the eyes of the people".
[116] The term "scurrilous abuse" has its roots in the early English case of Gray [1900] UKLawRpKQB 63; [1900] 2 QB 36. In that case a newspaper editor had described a Judge as an "impudent little man in horse chair, a microcosm of conceit and empty headedness". The Divisional Court found the editor as being in contempt of Court in that his comments were "personal scurrilous abuse of a Judge as a Judge." (p.40, ibid).
[117] At this juncture I pause to refer to a Privy Council decision decided in the year 1893 from the Bahama Islands where it was ruled that criticisms of the Chief Justice which were not directed at him in his official capacity as a Judge were not contempt. (see: In the Matter of a Special Referefence from the Bahama Islands vide: [1892] UKLawRpAC 50; [1893] AC 138.
[118] For England, in the year 1968, Salmon, L.J. is seen expressing a similar view in R v. Metropolitan Police Commissioner, ex parte Blackburn [1968] 2QB 150, 155, when his Lordship explained that "no criticism of a Judgment, however vigorous, can amount to contempt of Court if it keeps within the limits of reasonable courtesy and good faith."
[119] That view, to my mind, seems to qualify Lord Hewart's ruling in the case of The Editor of New Statesman, ex parte DPP (supra) in that, while a publication may be held to be prima facie intentional, it could be rebutted by a contemnor by establishing "good faith", in other words, by proving the absence of mens rea.
[120] The case of Ambard v. Attorney General for Trinidad and Tobago which was cited before us appears to strike a common chord with the aforequoted case of ex parte Blackburn (supra) when it brought in the notion of 'reasoned or legitimate criticism of Judges or Courts' (vide: [1936] AC 322, holding interalia that 'The path of criticism is a public way. ..." (at p.335, ibid).
[121] In the instant case, the learned High Court Judge was guided by the local Court of Appeal decision in Chaudhry v. Attorney General of Fiji [1999] 45 FLR 87 which stated at p.91 thus:
"An intention to interfere with the proper administration of justice was not seen as a necessary ingredient of the offence of contempt by scandalising the Court. ..."
The Right to Freedom of Expression
[122] Indeed, that thinking foreshadowed Lord Denning's exposition in the English case of R v. Commissioner of Police of the Metropolis [1968] 2 QB 150 where his Lordship concluded his Judgment with the following remarks:
"We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. ... on matters of public interest ...
... Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen
or that, will deter us from doing what the occasion requires ..."
(at p. 154, ibid).
The various (and different) schools of judicial thought emerging on the issue relating to Mens Rea
[123] I have carefully gone through several judicial precedents from common law jurisdictions including Australia and New Zealand and others.
[124] Consequently, I feel I am in a position now to discern the various (and different) schools of judicial thought emerging on the requirement of mens rea in the context of contempt by scandalising the Court or the judiciary or "the administration of justice system".
[125] They are that:-
(1) Liability does not require proof of intent (Lord Hewart's view in the 1928 English decision of Editor of New Statesman, (supra).
(2) From the nature of an impugned publication, intent may be presumed but a contemnor could plead good faith (perhaps even fair comment) to show absence of mens rea to undermine public confidence in the administration of justice.
(3) If an impugned publication on the fact of it carries a real risk in the minds of an ordinary and reasonable reader of having the effect of undermining the administration of justice system, given the added factor of the nature of the jurisdiction in which it is published, being small in nature, then, there is no need to establish an additional requirement of mens rea.
[126] It is, the last mentioned school of thought to which the learned trial judge is seen subscribing to.
Was there an error or misdirection or something perverse in the learned trial Judge's approach?
[127] I think not.
[128] Wading his way through in that backdrop of judicial views expressed and dicta in different jurisdictions (including common law regimes), not easily reconcilable either as I have sought to demonstrate earlier, His Lordship opted to adapt the thinking reflected in the said last mentioned school of thought.
[129] It is to be noted that, the words in the impugned article in the instant case do not compare with, for example, those used in the cases of The Oriental Press Group Ltd. (supra) and Gray (supra).
[130] Nevertheless, the reference to an "Australian Judge", and "not a Court per se, if not "scurrilous", in the very minimum, was derogatory and belittling a "quasi judicial officer" (I use that term in contradistinction with "a Court" or "a Judge" in the traditional sense) but who had performed his statutory duty under the Legal Practitioners Decree and had made a determination in pursuance of that duty in pursuance of "the administration of justice".
[131] That fact, taken in conjunction with the words "there is no judiciary there", must surely have left in the minds of a reader to lose confidence in the system when reading the same.
Conclusion on the liability of the First and Second Appellants
[132] For the aforesaid reasons, I found no error or misdirection in the learned High Court Judge's reasoning and judgment on the facts as well as on the law on the aspect of liability for the publication of the said impugned article, in as much as, the First Appellant being only a legal entity, it is the publisher, as a natural person who was visited with the liability of publishing the said impugned article. After all, the article did not appear in the First Appellant Newspaper on its own accord. It could not have.
[133] In that regard, I cannot do better than to endorse the thinking and reasoning of the learned trial Judge at pages 10 to 13 of his Judgment.
[134] If liability is to be hinged to "the requirement of proof of intent" or if a defence of "good faith" is to be recognised, those would be matters for the Fijian legislature based on policy which is not a matter for us as a Court of law to decide on, although, speaking for myself, I would welcome the day the legislature would consider and respond to the second school of thought referred to at paragraph 125(2) above.
What about the liability of the Third Appellant?
[135] Mr. Apted on behalf of the Appellants strenuously argued, (as he had done before in the High Court), that, the Editor of the First Appellant (the Third Appellant) was not aware of the article in question being published and that he was not even physically present when it had come to visit the news stands and even if he had been at work it was unlikely that he would have read the story.
[136] Citing authoritative precedents, the learned trial Judge (see: pp.13 to 16 of his Lordship's Judgment) rejected those arguments employing as his Lordship did the concept of a breach of the law and liability as part of (an) organisation's management structure visiting joint responsibility on both a publisher and an editor of a newspaper (p.15 of the High Court Judgment).
Concept of vicarious (or strict) liability of an Editor of a Newspaper
[137] Although his Lordship was reluctant to determine the basis of liability (vide: p.15 of his Judgment), I have no hesitation in saying that, the third Appellant was found liable for the publication of the impugned article on the basis of vicarious (or strict) liability.
[138] If that is to be changed, then it would again be a matter for the legislature of Fiji to make a change although I must say,
in the light of the evidence placed at the trial including the affidavits filed in support of the third Appellant, the defence of
"unawareness of the impugned publication" carried relevance (if at all) to the issue of the sentence imposed on the third Appellant
and not in regard to the issue of liability.
Conclusion re liability of the Appellants
[139] In conclusion, for the aforesaid reasons, I agree and affirm the learned High Court Judge's Judgment in finding all three Appellants guilty of the contempt of scandalising (the administration of justice) the phrase "administration of justice" being substituted by me for His Lordship's reference to "the Court". (p.16 of the High Court Judgment) for the reasons I have adduced earlier in this Judgment.
Re: The Order/Judgment dated 20 February, 2013 on the Sentences imposed
[140] After the convictions and following a mitigation hearing, the learned High Court Judge imposed the following sentences on the Appellants.
On the First Appellant
[141] A fine of FJD$300,000.00 to be paid within 28 days from the date "of the Judgment".
The factors that weighed with the learned High Court Judge
[142] The following factors relevant to the instant case may be extracted from the Judgment. Powell JA in Attorney General for NSW v. Radio 2UE etal [1998] NSWSC, on which the learned trial Judge derived assistance from had taken into consideration –
1. The objective seriousness of the contempt found established.
2. The culpability – that is, whether the statement was made deliberately with intent to interfere with the administration of justice or recklessly or without any appreciation of the potential consequences of the statement and
3. Other subjective factors.
[143] The 'seriousness' of the matter was not in doubt and as the learned Judge put it, "involved a matter of principle and ... ... it was directed towards the whole judiciary of Fiji, at a time of Fiji's on-going constitutional development." (p.4 of the Judgment). I would add that it was directed at the whole administration of justice system in Fiji.
[144] This stood compounded on account of the nature of the jurisdiction to which the publication related.
[145] I have no quarrel with those views expressed by the learned Judge.
[146] In regard to the aspect of 'culpability', the learned Judge had in his convicting Judgment held that the publication was not intentional as to inter alia undermine the judiciary (or the administration of justice).
[147] He also noted in the sentencing judgment under consideration in effect, that the First Appellant being a company (a Corporate entity) liability for the publication was strict and also that the contemptuous words had not been (indeed they could not have been) drafted by the (First Respondent). (vide: p.5 of the Judgment) wherein he concluded that as "a corporate entity it's culpability can only be determined by examining the conduct of those who control its activities and who act on its behalf. As a corporate entity its liability is strict and any penalty is determined by the seriousness of the contempt along with any mitigating or aggravating factors." (p.6 ibid).
[148] The commonsensical and logical reflections coupled with the path of experience contained in that exposition leave no room for any other view.
The Law relating to Sentencing for Contempt by Scandalising
[149] There is no Contempt of Court statute in Fiji and there do not appear to be well established formulae or judicial precedents either in the matter of imposition of penalties in regard to newspaper publications which are liable to be held as contempt by scandalising the judiciary (or the administration of justice system).
[150] Consequently, one would have to look at the general procedural law to ascertain whether any clues could be gathered in that regard.
Criminal Procedure Decree, 2009 (CPD) and the Sentencing and Penalties Decree SPD, 2009
[151] Section 240(2) of the CPD provides that:
"Any sentence which a Court may impose shall be consistent with provisions of the Sentencing and Penalties Decree 2009."
Section 244 decrees that:
"Before passing sentence the Court may receive such evidence as it thinks fit, in order to inform itself as to the appropriate sentence to be passed in accordance with the sentencing guidelines and sentencing options provided for in the sentencing and Penalties Decree 2009."
[152] The learned trial Judge is seen dealing with the matter of sentencing in the light of the general criminal law principles and within the framework of the SPD, 2009 as judicially expounded. His Lordship's reference to factors such as (i) any early plea of guilt (ii) any previous convictions (iii) any demonstration of remorse and (iv) the personal circumstances of contemnors, evidence this.
Application of the aforesaid criteria to the First Appellant
[153] No doubt, having regard to the aspects of 'seriousness' and 'culpability' in the context of the nature of jurisdiction which the learned Judge took into consideration, they were certainly relevant to the finding of 'guilt'.
[154] So was the fact that there was no early plea of guilt on behalf of the First Appellant by any authorised person (including the Second and Third Appellants). Nor was there any demonstration of remorse. There was a previous conviction as well.
Finding of guilt as against the severity or otherwise of the penalty imposed
[155] The learned Judge was struck by those factors and in the exercise of his discretion His Lordship imposed the punishment he did.
The words contained in the impugned article
[156] It is also to be noted that, there were two offensive features in the said publication. The first was the reference that, "there is no judiciary there". The second was the reference to an "Australian Judge ... not a Court per se".
[157] While the first would have had the effect in the minds of the reasonable reader of belittling the judiciary as being "non-existent", the second was to "a Commissioner appointed under the LPD" though not 'a Court' or part of 'the judiciary' but yet appointed to perform 'a quasi-judicial function' and who was very much a part of 'the administration of justice system' at the time.
Eiusdem Generis Principle
[158] Consequently, in so far as that second feature in that impugned principal article is concerned, that comment had to have an impact on the 'administration of justice system', in eiusdem generis in the prevalent socio-constitutional ethos in Fiji.
Re: The Second Publication of 30 June, 2012
[159] Apart from those factors, this is another factor that had caused much concern to the learned trial Judge. Having earlier referred to the fact that this was the second conviction the First Appellant was facing. (vide: paragraph [34] read with paragraph [47] of the Judgment/Order dated 20 February, 2013), the learned Judge observed thus:
"[47] This is its second conviction. The First Respondent and its management appear to have learnt little from the first conviction. The fine imposed for the first conviction was $100,000.00. The penalty on this occasion must reflect the fact that this is a second offence following the conviction of the First Respondent in 2009 for the same type of contempt. I might well have taken a more lenient view as to an appropriate penalty in this instance had that been the only consideration. However, in my view the penalty on this occasion must not only reflect the fact that this is a second conviction but also the penalty must in addition reflect the grave aggravating factor to which reference has already been made."
[160] His Lordship proceeded to elaborate on that view as follows at paragraph [48] of the Order/Judgment of 20 February, 2013:
"[48] In case there is any doubt as to how this Court views that matter, I shall briefly state again the reason why the Court considers the material to be an aggravating factor of a grave nature. The material that appeared on page 71 of the edition of the First Respondent's newspaper on 30 June 2012 aggravated the risk of undermining public confidence in the administration of justice in Fiji. The material consisting of the heading, the article itself and the photograph, when read together, conveyed to a fair-minded and reasonable reader the impression that the judiciary was not independent from the government, that payment by cheque of $25,000.00 from the OFC would bring about the termination of the contempt proceedings against that organisation's General Secretary (Tai Nicholas) and that the judiciary in Fiji was corrupt. As a consequence the Court is left with no choice but to impose a heavy fine."
[161] For all the aforesaid reasons I hold that, the imposition of a fine of FJD$300,000.00 was justified.
Re: the penalties imposed on the Second and Third Appellants as the publisher and Editor in Chief respectively
[162] As the learned High Court Judge observed the Second Appellant, as the Publisher, in his affidavit of 19 December, 2011 acknowledged his obligation to ensure that contemptuous and defamatory matter was not published. Simply saying that he was not at work on the material day, among other matters, such as lack of human resources he had pleaded in his said affidavit was not sufficient to excuse him of his responsibility and culpability. However, the fact that in the earlier conviction he was not holding office in the First Appellant's establishment, I am inclined to accept as being a mitigating factor that stood in his favour.
[163] I am inclined to make a variation in regard to the fine imposed on the Second Appellant which I vary from FJD$10,000.00 to FJD$7,500.00.
[164] I am in respectful agreement with the learned trial Judge that, the Third Appellant, as the Editor in Chief shared responsibility jointly with the Second Appellant and that, his culpability as Editor was in even less doubt.
[165] In so far as he is concerned, the custodial sentence imposed on him being rendered academic since then, given the time lag between the finding of 'guilt' (on 1 October, 2012) and the passing of the suspended sentence of 2 years imprisonment effective until a 2 year period which would have ended on 1 October 2014, I think it would be an exercise in futility for me to go into it, given the additional fact that, in appeal there was no move to seek a declaration by him before this Court, retrospectively, to vindicate his cause in principle.
The matter of tendering apologies
[166] The learned trial Judge refused to accept the tendering of apologies. In the circumstances of this case, the Second and Third Appellants having pleaded not guilty at the inception at the trial, one could say that it had nothing to do with showing remorse although, in contrast, tendering an apology had appealed to Lord Denning which had resulted in not sentencing the editor to prison, not even finding him guilty but only making an order to pay costs. (See: the attitude His Lordship adopted in commenting on R v. New Statesman [1928] 44 TLR 301 endorsing that approach after 40 years, in R v. Commissioner of Police for the Metropolis [1968] 2 QB 150.
[167] But, as would be reflected on record the stage at which the issue of apologies came to surface stands on a different footing in the instant case as compared with those cases as recounted above.
Final Reflections and Conclusion - Matters for the Legislature of Fiji
[168] Finally, there are several matters that, I would like to reflect and comment on.
(i) Should 'mens rea' be regarded as an essential requirement for a per se publication that may affect the minds of an ordinary reasonable reader as constituting the undermining of confidence in regard to "the judiciary" as an institution and in a broader sense, the administration of justice system?
(ii) Interconnected as it were to that query, should the legislature of Fiji recognise the concept of strict liability on the part of a Newspaper publication? and consequently should the said liability visit upon a publisher and an editor of a Newspaper as well on the basis of strict and/or vicarious liability?
(iii) Is the State of Fiji, on account of it being "a small country" and its "nature of jurisdiction" to continue with the present position? What would suit "the circumstances of Fiji and its inhabitants" as envisaged in Section 24 of the High Court Act?
(iv) For those reasons, is there a need to introduce a Contempt of Court Act requiring perhaps the defences 'of truth' and/or 'fair comment' and/or 'good faith' and/or 'Public Interest' which would consequently bring into the fold questions on burden of proof as well?
(v) How should a via media be struck (if such an Act is to be passed) between the concepts of "freedom of expression", "media freedom" and "media responsibility" as being responsive to an "ordinary and reasonable reader" of a publication of news as decreed in Article 17 of the Constitution of Fiji?
[169] The Phillimore Committee on Contempt of Court in the UK recommended that 'truth' should be a defence if the publication was for the public benefit. So has the European Court of Human Rights in the context of the notion of scandalising (Report of the Committee on Contempt of Court CMND 57994, 1974, para. 166) The High Court of Australia in effect has been in favour of it when it made reference to "fair comment publicly made" Nationwide News Pty Ltd. v. Willis [1992] 177 CLR1, pp.38-39.
[170] In contrast however the Law Commission of Canada in 1982 had felt that 'truth' should not be available as a defence for it may result in "guerrilla warfare" against the Judiciary. (Report on Contempt of Court, 1982, p.26).
[171] In that context and the plethora of issues addressed hereinbefore, what path ought the legislature of Fiji take?
[172] These are questions to which this Court cannot provide answers being questions for the legislature to address.
Fernando JA
[173] I agree with the reasons and the conclusions arrived at by Almeida Guneratne JA.
Kumar JA
[174] I also agree with the reasons and the conclusions arrived at by Almeida Guneratne JA.
Orders of the Court
.........................................................
Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL
.........................................................
Hon. Justice Anthony Fernando
JUSTICE OF APPEAL
.........................................................
Hon. Justice Kamal Kumar
JUSTICE OF APPEAL
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