Attorney General v Nicholas [2002] FJHC 328; HBC364.2011 (13 April 2002)

IN THE HIGH COURT OF FIJI
AT SUVA

ACTION: HBC 364 OF 2011

BETWEEN:

ATTORNEY-GENERAL OF FIJI
Applicant

AND:

TAI NICHOLAS
Respondent

Mr S Sharma with Ms M Devi for the Applicant
Mr H Nagin for the Respondent

RULING

On 25 November 2011 I granted leave ex parte to the Applicant to apply for an Order of Committal against the Respondent. The order had been sought for contempt of the Court as a result of the Respondent's comments published in the Fiji Times wherein the Respondent was quoted as saying: "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." The Applicant alleged that those words scandalized the Court and the Judiciary in Fiji and was a scurrilous attack on the members of the Judiciary thereby lowering the authority of the Judiciary and this Court.

On 1 December 2011 I gave further directions for the service out of jurisdiction of the Notice of Motion and other documents on the Respondent.

The Notice of Motion was listed for inter partes mention on 23 December 2011. On that day directions were given for the parties to file affidavit material and the proceedings were relisted for the purpose of taking a plea on 27 February 2012.

In the meantime, on 25 January 2012 the Respondent filed a summons seeking orders (a) that the ex parte orders made on 25 November 2011 be set aside and (b) that the ex parte orders made on 1 December 2011 also be set aside. The basis of the application concerned the jurisdiction of this Court to deal with the application against the Respondent. An affidavit in support was filed on the same day.

An affidavit sworn by the Respondent on 25 January 2012 was then filed on 30 January 2012. This affidavit related to the substantive issues rather than the interlocutory application.

On 10 February the Applicant filed a summons seeking an order for leave to amend the statement required under Order 52 and the Notice of Motion. There was also filed on the same day an affidavit in support.

On 27 February 2012 directions were given for the filing of further affidavit material in respect of both interlocutory applications. The applications were listed for hearing on 28 March 2012. On 15 and 16 March two additional affidavits were filed on behalf of the Respondent.

Then, by letter dated 20 March 2012, the legal practitioners acting for the Respondent wrote to the Senior Court Officer of the High Court stating:

"We act as Solicitors for the Respondent, Mr Tai Nicholas.

Our Mr Nagin who is handling this matter for the Respondent has had vacuous without prejudice discussions with Mr Sharvada Sharma, the acting Solicitor-General and Counsel for the Applicant, with a view to coming to an amicable resolution of the whole matter. This will be beneficial to all concerned.

We write to request if Counsel from both sides in the matter could appear before the presiding judge in this matter this afternoon at around 3.30pm or any other convenient time on Wednesday 21 March 2012.

We look forward to your usual co-operation."

The letter was copied to the Acting Solicitor-General. The parties appeared before me at 3.00pm on 21 March 2012 in court. During the course of submissions Counsel for the Respondent handed to the Court a typed document which, amongst other things, set out what was termed as a proposed order by the Respondent. At this stage it need only be noted that the proposal included a plea of guilty. From the first inter partes mention and in all the affidavit material filed by or on behalf of the Respondent, the position of the Respondent appeared to be indicative of a plea of not guilty. When asked what was the position of the Applicant, Counsel indicated that the Attorney-General was prepared to accept the proposed plea but would leave the matter with the Court.

The nature of the alleged contempt in this case can be determined by reference to the speech of Lord Diplock in Attorney-General –v- Times Newspapers Ltd [1973] 3 All ER 54 at page 71:

"One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the Court made on him in that action. This is classified as "civil contempt." The order is made at the request and for the sole benefit of the other party to the civil action. All other contempts of course are classified as "criminal contempts," whether the particular proceedings to which the conduct of the contemnor relates are themselves criminal or civil litigation between individual citizens. This is because it is the public interest in the due administration of justice, civil as well as criminal, in the established courts of law that it is sought to protect by making those who commit criminal contempt of court subject to summary punishment."

It is clear that the present application relates to contempt that falls into the category of "criminal contempt." There is no suggestion of disobedience to an order of the Court by any person. It is also clear that the contempt falls within Order 52 as it was alleged to be contempt of court committed otherwise than in connection with any (existing) proceedings (See Order 52 Rule 1(2) (b)).

Although described as "criminal contempt," prosecution for committing the contempt is under Order 52 of the High Court Rules which are civil procedure rules. However there is in my judgment no doubt that the standard of proof is the criminal standard of beyond reasonable doubt. As the Court of Appeal in Mahendra Pal Chaudhary –v- Attorney-General of Fiji (1999) 45 FLR 87 observed at page 92:

"This summary indicates that the common law offence of contempt scandalizing the Court involves attacks upon the integrity or impartiality of judges or Courts, the mischief aimed at being a real risk of undermining public confidence in the administration of justice, which must be established beyond reasonable doubt."

It is in the context of these observations that I have concluded that it is inappropriate for me to consider the proposed disposition of the matter. To the extent that the proposal submitted in writing by Counsel for the Respondent may reasonably be regarded as a process which is sometimes referred to as "plea bargaining", I consider it appropriate that the parties to the present proceedings consider the guidelines provided by the Court of Appeal in R –v- Goodyear [2005] EWCA Civ 1754; [2005] 3 All ER 117.

I should also indicate that the allegation of contempt is contempt in the form of scandalising the members of the Judiciary of Fiji and the Courts of Fiji. It does not involve scandalising either the Government or the Attorney-General of Fiji. The role of this Court in proceedings such as the present therefore differs somewhat from the role of the Court in conventional criminal proceedings.

There is no need for a formal order. Any costs incurred are to be costs in the cause.

In the meantime, the two interlocutory applications are listed for mention on Friday 27 April 2012 at 9.30a.m.

W D Calanchini
Judge

13 April 2012
at Suva