State v Nicholas, ex parte Attorney General [2013] FJHC 29; HBC364.2011 (8 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA

ACTION NO: HBC 364 OF 2011

THE STATE

v

TAI NICHOLAS
Respondent

EX PARTE : THE ATTORNEY-GENERAL OF FIJI
Applicant

Mr S Sharma with Ms R Mani for the Applicant
Mr D Bahadur with Mr W Pillay for the Respondent

JUDGMENT

[1]. On 25 November 2011 the Attorney-General (the Applicant) sought leave ex parte to apply for an order of committal against Tai Nicholas (the Respondent). The application was made under Order 52 of the High Court Rules.

[2]. Under Order 52 Rule 2 (2) the ex parte application for leave must be supported by a statement setting out (1) the name and description of the applicant; (2) the name, description and address of the person sought to be committed; and (3) the grounds on which his committal is sought. The application must also be supported by an affidavit verifying the facts relied on.

[3]. The notice filed on behalf of the applicant on 24 November 2011, apart from identifying the Applicant and the Respondent, alleged that the words "You should be aware that with no judiciary there, his case has been reviewed by one Australian Judge. It is not a court per se" were said by the Respondent to scandalize the Court and the judiciary of Fiji in that they were a scurrilous attack on the members of the judiciary, thereby lowering the authority of the judiciary and the Court.

[4]. The necessary affidavit in support verifying the facts relied on was sworn by Aiyaz Sayed-Khaiyum on 22 November and filed on 24 November 2012.

[5]. On 25 November 2011 leave was granted ex parte to the Applicant and on the same day a Notice of Motion was filed seeking an order of committal of Tai Nicholas for his comments that had been subsequently published in an article on page 30 of the Fiji Times on 7 November 2011.

[6]. On 1 December 2011 further ex parte orders were made granting leave to the Applicant to effect service on the Respondent out of the jurisdiction by substituted service of the Notice of Motion, statement, affidavit and any other relevant document.

[7]. On 23 December 2011 directions were given for the filing of affidavit material by the parties. Counsel appeared on behalf of the Respondent and the proceedings were relisted for mention on 27 February 2012 for the purpose of taking a plea.

[8]. Interlocutory applications were then filed first by the Respondent on 25 January and then by the Applicant on 10 February 2012. Both applications were supported by affidavits. It need only be noted at this stage of the proceedings that both applications were struck out by consent on 12 July 2012.

[9]. However, in the affidavit sworn by the Respondent on 25 January and in a further affidavit sworn by the Respondent on 10 March 2012 there are matters deposed to therein which are relevant to the substantive application. Yet another affidavit sworn by the Respondent on 13 March 2012 was filed shortly afterwards. This affidavit also contains material that relates to the substantive application.

[10]. At the request of the then legal practitioners acting for the Respondent the substantive application for committal was listed for mention on 21 March 2012 as a matter of urgency. During the course of oral submissions Counsel for the Respondent indicated that the Respondent wanted to make an application by way of a proposal (in writing) to resolve the proceedings brought by the Applicant. On 13 April 2012 the Court delivered a written Ruling on the Respondent's proposal which was in effect rejected relying on R –v- Goodyear [2005] EWCA Civ 1754; [2005] 3 All ER 117

[11]. On 11 July 2012 the legal practitioners acting for the Respondent filed a document dated 6 July 2012 and signed by the Respondent wherein, amongst other things, the Respondent indicated that "he pleads guilty to the charges of contempt of court brought against him." On 12 July 2012 the court formally recorded the Respondent's plea of guilty. On that day directions were also given for the parties to file affidavits relating to mitigation.

[12]. An affidavit sworn by the Respondent on 2 August 2012 was filed on 7 August 2012. An affidavit sworn on 23 July 2012 by Kim Hiong Chung, current Oceania Football Confederation (OFC) President and Federation Internationale de Football Association (FIFA) Vice-President was filed on 7 August 2012. The Applicant filed a brief answering affidavit sworn by Aiyaz Sayed-Khaiyum on 22 August 2012.

[13]. On 24 August 2012 directions were given by the Court for the parties to file written submissions and the mitigation hearing was fixed for 17 October 2012. The Respondent filed his written submissions on 24 September 2012, although they were required to be filed by 21 September 2012. The Applicant filed written submissions on 12 October 2012. Those submissions should have been filed by 8 October 2012.

[14]. When the mitigation hearing commenced Counsel for the Respondent applied for an adjournment on the grounds that he had not had sufficient time to consider the Applicant's submissions. Although the application was opposed, somewhat reluctantly and not without some adverse remarks directed at both Counsel, the Court granted the application. The mitigation hearing resumed on 5 November 2012 and was completed on the same day.

[15]. By pleading guilty to contempt scandalizing the court, the Respondent admits that the words that are quoted in the Applicant's motion were spoken by him (i.e. that they were his words) and he admits that they amount to contempt scandalizing the Court. Once that has been established, the issue then becomes how should the Court exercise its power to punish the Respondent for contempt of court under Order 52 of the High Court Rules?

[16]. The following background facts have been taken from paragraph 32 of the Applicant's written submissions. They do not appear to be in dispute. The Respondent, who has at all material times resided in New Zealand, is and was at the time of the contempt the General Secretary of the Oceania Football Confederation (OFC). On 3 March 2011 a legal practitioner in Fiji by the name of Dr Muhammed Shamsud-Dean Sahu Khan (Dr Sahu Khan) was found guilty of professional misconduct by the Fiji Independent Legal Services Commission (ILSC). On 4 May 2011 ILSC made disciplinary orders including an order that Dr Sahu Khan's name be struck from the Roll of Legal Practitioners. At that time Dr Sahu Khan was and had been for a number of years President of the Fiji Football Association. It would appear that he was at the same time occupying the position of treasurer of the OFC. He also held an office within the FIFA organization. On 4 November 2011, Simon Plumb, a reporter with the Sunday Star Times (a New Zealand newspaper) telephoned the Respondent regarding the eligibility of Dr Sahu Khan to continue to hold official positions in both OFC and FIFA. The Respondent and Simon Plumb had a telephone conversation during which the Respondent made a few comments on which he was later quoted in an article that appeared (was published) on the website of the Sunday Star Times on Sunday 6 November 2011. On Monday 7 November 2011, the Fiji Times, a prominent local daily newspaper published on page 30 in the Sports pages, the article (verbatim) by Simon Plumb with the title "FIFA probes DOC". The article contained the following words used by the Respondent:

"You should be aware that with no judiciary there, his case has been reviewed by one Australian Judge. Its not a court per se."

[17]. The Respondent has pleaded guilty to what is termed a criminal contempt in the form of scandalizing the court otherwise than in connection with any proceedings. Although the High Court Rules (including Order 52) do not apply to criminal proceedings in the High Court (Order 1 Rule 8 (2)), any contempt of court, whether civil or criminal, committed in connection with civil proceedings before the Court or committed otherwise than in connection with any proceedings is treated as contempt of court for the purpose of an application under Order 52. (See Parmanandam –v- The Attorney-General (1972) 18 FLR 90 at page 98).

[18]. That the contempt in the present case is criminal contempt becomes clear in view of the observations of Lord Diplock in Attorney-General –v- Times Newspaper Ltd [1973] 3 WLR 298 at page 316:

"One may leave aside _ _ _ 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 a "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 contempt," whether the particular proceedings to which the conduct of the contemnor relates are themselves criminal proceedings or are civil litigation between individual citizens

[19]. In summary, as a result of the decisions in Parmanandam –v- The Attorney-General (supra) and Attorney-General –v- Times Newspaper Ltd (supra), the position in Fiji is that contempt of court whether civil or criminal contempt committed in connection with any civil proceedings or contempt committed otherwise than in connection with proceedings is dealt with under Order 52 of the High Court Rules. Only contempt committed in connection with criminal proceedings falls outside the scope of Order 52 and is dealt with by the trial judge according to criminal law practice and procedure for contempt of court.

[20]. By pleading guilty the Respondent has acknowledged that his words are a scurrilous attack on the judiciary and lower the authority of the judiciary and the Court. In my judgment this is a case of contempt of court which should be punished by the imposition of a penalty to reflect the public interest, to act as a deterrence and as a denunciation of the conduct.

[21]. In determining what penalty should be imposed by the Court on the Respondent for contempt scandalizing the Court there are a number of factors that are usually considered to be relevant.

[22]. One matter that the Court should consider is the seriousness of the contempt with particular reference to the effect of the language used by the contemnor. In Attorney-General for the State of New South Wales –v- Radio 2UE Sydney Pty Limited and John Laws (unreported appeal decision of the New South Wales Supreme Court No. 40236 of 1998 delivered 11 March 1998; [1998] NSWSC 28) Powell JA observed:

"In determining what, if any, is the penalty appropriate to be imposed on a person found guilty of a contempt of court, it is proper for the Court to have regard to such matters as the objective seriousness of the contempt found established, the culpability – as for example, whether the relevant statement was made, or the relevant act was done deliberately, with intent to interfere with the administration of justice, or recklessly, or as the result of gross negligence, or although intended, without any appreciation of the potential consequence of the act or statement – of the person found to have been guilty of the contempt, and any other subjective factors."

[23]. In my view this was a deliberate contempt and is a serious contempt. It is serious as a matter of principle and it is serious in so far as it is directed towards the entire judiciary and the Court in Fiji at a time of on-going constitutional development.

[24]. In the State v Fiji Times Limited and Others ex parte The Attorney-General of Fiji (unreported civil action HBC 343 of 2011 delivered on 1 October 2012) the Court set out the reasons why as a matter of principle the Court safeguards society against attacks on its judiciary and its courts. It is appropriate for this Court to quote part of that decision which is relevant to the present proceedings. At page 7 the following appears:

"That the integrity of the judiciary and the authority of the Court should be protected is premised on the principle that is clearly explained in the opening remarks of Lord Diplock's speech in Attorney-General –v- Times Newspaper Ltd [1973] 3 W.L.R. 298 at page 316:

"_ _ _ in any civilized society it is a function of the government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it are essential if citizens are to live together in peaceful association with one another."

[25]. Contempt scandalising the Court is a term applied to conduct which at the very least represents a real risk of undermining the authority of the Courts and the judiciary and which has the effect of undermining the administration of justice. In my judgment the comments made by the Respondent scandalise the Court and the judiciary in so far as there is as a result a real risk that their effect will be to undermine the authority of the courts and discourage citizens from relying on the judiciary to settle their disputes. They represent a real risk of interfering with the administration of justice in Fiji.

[26]. The ability of the court and the judiciary to effectively perform the function that is their responsibility if "citizens are to live together in peaceful association with each other" depends on whether they command the general confidence of the citizens they serve. Comments and words which tend to lower their authority or attack their impartiality fall into the category of contempt scandalizing the court. [See: "The Australian Judiciary" (Enid Campbell and H P Lee 2001) at page 182].

[27]. The second reason why this contempt should be considered as a serious contempt of court relates to the nature of the jurisdiction about which the comments were made. In my view, the observations of the Privy Council in Ahnee and Others –v- Director of Public Prosecutions [1999] UKPC 11; [1999] 2 W.L.R. 1305 support the proposition that the contempt should be considered in the context of the recent constitutional history of Fiji which renders the administration of justice in Fiji, as a developing small island state, more vulnerable than in developed nations. There is no doubt in my view that the comments made by the Respondent served to undermine the administration of justice in Fiji by lowering the authority of the court and the judiciary in Fiji. The words served to create doubt and misgivings as to the existence of the judiciary in Fiji and misgivings as to the integrity, propriety and impartiality of the Court. The comments must be regarded as a serious contempt when considered in the context of Fiji's recent constitutional history.

[28]. Turning to the issue of culpability, I accept that the Respondent was not directly responsible for the publication of his comments. However, in my judgment, the circumstances leading up to the publication of his comments in the Fiji Times on 7 November 2011 support the conclusion that the Respondent must shoulder responsibility and a degree of culpability should be attached to the Respondent. From the material set out in the various affidavits filed by the Respondent, the following facts are, in my judgment, relevant to the issue of culpability.

[29]. The Respondent knew when he made his comments to the reporter on 4 November 2011 that Dr Sahu Khan, a legal practitioner in Fiji, had been found guilty of professional misconduct on 3 March 2011 by the Independent Legal Services Commission. He also knew that on 4 May 2011 the Independent Legal Services Commission had made an order that the name of Dr Sahu Khan be struck from the Roll of Barristers and Solicitors in Fiji.

[30]. Furthermore, when the Respondent answered the telephone call on 4 November 2011 he became aware that the caller was a reporter employed by a New Zealand newspaper based in Auckland called the Sunday Star Times. The Respondent knew the reporter whose name was Simon Plumb. The Respondent was informed by the reporter as to the purpose of the call. It was an inquiry by the reporter as to the eligibility of Dr Sahu Khan to be a member of OFC (of which the Respondent was and is the Secretary) and to be a member of the FIFA Disciplinary Committee as its Deputy Chairman. The Respondent understood that his comments "were to be published in an article" in the Sunday Star Times. This happened on Sunday 6 November 2011. The Respondent acknowledged in his affidavit sworn on 25 January 2012 that he made that statement to the reporter in answer to questions concerning the disciplinary proceedings in Fiji.

[31]. In my judgment the Respondent knew or ought to have known that the Sunday Star Times also published on line. He knew or ought to have known that as a result his comments would be published on line. Under those circumstances and taking into account the notoriety acquired by Dr Sahu Khan as a result of the disciplinary proceedings, his position as a former senior member of the legal profession in Fiji and his position in the soccer fraternity in Fiji, the Respondent knew or ought to have been aware that comments coming from him as secretary of the body responsible for soccer in the region would almost certainly be picked up from the on line publication and published in Fiji. This occurred on 7 November 2011. The telephone conversation was not simply a private conversation between two individuals. This was an interview over the telephone by a reporter known to the Respondent about a controversial figure who was well known to the Respondent and in Fiji. The Respondent knew or ought to have known the risks involved in taking part in a telephone interview under those circumstances. At the very least the Respondent was reckless as to the probability that his comments would be published in Fiji. Whilst it may be that the Respondent had no intention in his mind to commit the contempt, in my judgment, that fact is of little significance. It may be sufficient to enable the Respondent to escape committal which he might otherwise have been contemplating. Whilst the lack of intention may involve the proposition that the Respondent did not say to himself as he spoke to the reporter "now I shall utter contemptuous words," it does not mean that the Respondent had no intention of making the comments which he did in fact make and which he has in his affidavit admitted making. His comments did not accidentally come out of his mouth. The Respondent, in my judgment, made a considered decision to make the comments and he should not have done so. (See Attorney-General for NSW –v- Radio 2UE (supra per Meagher JA). He was an experienced regional soccer administrator and ought to have appreciated the consequences of making such comments to a reporter.

[32]. In paragraph 2 of an affidavit sworn by a Ritesh Chandra Singh on 12 March 2012 there is a reference to an official statement setting out the position of OFC concerning Dr Sahu Khan. A copy of that document appears as annexure A to the affidavit. It is claimed that the official statement was in existence on 4 November 2011 and was sent by the Respondent to the newspaper later on the same day as the interview. If that were the case, it was hardly necessary for the Respondent to give a telephone interview and to make the contemptuous remarks about the entire judiciary and the Courts of Fiji. The official statement ought to have been the only response by the Respondent to the reporter.

[33]. In keeping with the principles that are generally applied in sentencing proceedings, it is appropriate to consider the issue of genuine remorse and the plea of guilty. In my judgment these two matters can be considered together since a plea of guilty, especially an early plea of guilty, is regarded as one of the indicators of genuine remorse. These two matters are ordinarily referred to as mitigating factors.

[34]. Considering first the Respondent's plea of guilty, I accept that a plea of guilty is a mitigating factor that is taken into account by the Court when determining an appropriate disposition. The extent to which the plea works in favour of a contemnor depends upon the point in time when the intention to plead guilty was made known to the Court. It is therefore necessary to examine when it was that the Respondent in the present proceedings conveyed that intention to the Court. It was certainly not when the Respondent filed his Notice of Intention to Defend on 25 January 2012. Although the basis of the defence at that time appeared to be jurisdictional, the filing of the Notice by the Respondent was not consistent with an intention to plead guilty. There was nothing in the affidavit material filed on behalf of the Respondent prior to 21 March 2012 that could be construed as being consistent with a plea of guilty. Although there was an initial admission that he had spoken the words, the Respondent initially denied that they were contemptuous and at the same denied that he had intended to scandalize the Court. On the other hand he appeared to be attempting to shift responsibility and culpability alternatively to the reporter, the Sunday Star Times and the Fiji Times.

[35]. A plea of guilty was offered as part of a package of proposals submitted by the Respondent when the matter was called before me on 21 March 2012 at the request of the legal practitioners acting for the Respondent. As a form of plea bargaining and based on the principles set out by the Court of Appeal in R v Goodyear (supra) for dealing with such a proposal, I rejected the Respondent's application for the court to consider the making of a consent order to finalise the proceedings. That Ruling was delivered on 13 April 2012. It can be concluded with some certainty that the plea of guilty was not formally entered until 11 July 2012.

[36]. On that day the Respondent filed a document that indicated that the Respondent was changing his plea to guilty to avoid the need for a full hearing. The plea was entered more than five months after the documents had been served and only after a number of interlocutory proceedings before the Court. The sentencing hearing commenced on 17 October 2012, just three months after the guilty plea had been entered. It may be said, as the Respondent has claimed, that by pleading guilty, he saved the Court's valuable time by not requiring a full hearing of the application. However, on the other hand, it was neither a timely plea of guilty nor was it one that was made at the first possible opportunity.

[37]. Finally, I should indicate that in my view a plea of guilty is a plea of guilty. It is apparent that the plea has been entered following receipt of legal advice. The reason for the plea being made is of no concern to the Court. The relevant facts set out in the affidavits filed by the parties are not substantially in dispute. To the extent that material in the Respondent's written submissions attempts to offer an explanation as to why he has pleaded guilty, that material is really only relevant to the extent that it is consistent with the facts that are relied upon by the Applicant as constituting the criminal contempt scandalizing the Court. Furthermore to the extent that there are some instances of inconsistent statements in the affidavit material filed by the Respondent I prefer to accept the material that the Respondent deposed to as being true and correct in his first affidavit filed on 25 January 2012. It appears to me that there has been a gradual but discernable retreat in terms of accepting responsibility and culpability by the Respondent as reflected in the material contained in affidavits subsequently filed on his behalf. I am left with the conclusion that, although I accept that the Respondent has pleaded guilty as a mitigating factor, it does not carry as much weight as might otherwise have been the case. I have also concluded that as an indication of remorse it carries even less weight.

[38]. Turning to the issue of remorse the Respondent relies on a letter dated 20 November 2011 addressed to the Applicant. It is difficult for me to determine to what extent the letter should be regarded as indicative of remorse. It seems to me that its contents are completely misconceived. The Respondent stated in the letter that he wants to provide an explanation about his comments about "The Fiji Government." However, these proceedings were commenced by the Applicant under Order 52 for comments which the Respondent has admitted making and which he has pleaded guilty for contempt scandalizing the Court. The Respondent's comments were about the Court and the entire judiciary of Fiji, not about the Government of Fiji and not about the Attorney-General. The Applicant was not claiming that the Government had been scandalized. The letter is notable for its political platitudes directed towards the Government of Fiji without one meaningful indication of any apology, regret or remorse for having scandalized the Court and challenged the very existence of the entire judiciary in Fiji. As I have indicated, its contents were entirely misconceived. It was not made clear to me whether the letter was drafted and forwarded on the advice of legal practitioners or whether it was a decision taken by the Respondent himself. In any event, I attach little weight to it as an indication of genuine remorse.

[39]. Attached to that letter was a draft press release which it would appear the Respondent was prepared to issue as an apology. Once again it purports to apologise to the Government, not to the judiciary as a whole nor to the Court. In every day parlance, the government does not include the judiciary. The judiciary is separate from, and independent of, the Government. In the sense in which the Respondent used the word, government is a reference to the executive.

[40]. The draft press release is more concerned with the Government's support for soccer in Fiji and the current state of the sport in Fiji. It does not make any reference to the contempt of court nor to the proceedings commenced by the Applicant. Consequently it also carries very little weight as an indication of remorse.

[41]. There are some qualified references to regret in the affidavit material which indicate that the Respondent does have some remorse for the very serious matter that is the subject of these proceedings. However, on the other hand, at no stage has the Respondent publicly apologized to the members of the judiciary and to the Court.

[42]. One obvious mitigating factor that clearly counts in favour of the Respondent is the fact that he has no previous conviction for contempt. Furthermore I was informed from the bar table by Counsel appearing for the Respondent that the Respondent has no prior convictions of any description whatsoever. It can fairly be said that he is of good character in that sense.

[43]. Finally, turning to the personal circumstances of the Respondent. I was informed by Counsel that the Respondent is 44 years old and was born in the Cook Islands. He was educated in New Zealand and has resided in that country for many years. He is married with two children aged 17 and 12. They are both attending school. The Respondent has held a number of administrative positions in the organization of regional soccer. He was appointed to his present position in 2004. His current salary is NZ$60,000.00 which together with benefits and bonus payments amounts to a package of around NZ$90,000.00. I was not provided with any further material concerning the financial position of the Respondent.

[44]. Considering all of the above matters I must now determine an appropriate disposition. I have already indicated that punishment in the form of a penalty is warranted in this case. This is not a case where the mere ordeal of court proceedings and an offer to pay costs with an apology is sufficient. Such an approach would send an entirely inappropriate message that the Court is not serious about safeguarding society from scurrilous attacks on the entire judiciary in the form of contempt scandalizing the Court.

[45]. The submissions, both written and oral, presented by Counsel for the Respondent, to the extent that they were concerned with mitigation, were directed at urging the Court to dispose of the matter by a conditional discharge that required the Respondent to pay the Applicant's costs, albeit on a higher scale. It appeared that there was also an offer to have published an apology. The foundation for this submission was the various mitigating factors that have already been discussed.

[46]. The Applicant submitted that the penalty must reflect the gravity and seriousness of the contempt of scandalizing the Court. The penalty must also serve as a deterrence against any repetition of such contempt. The Applicant also sought an order for costs.

[47]. In determining an appropriate disposition it is necessary for me to consider what guidance, if any, is provided by Order 52 of the High Court Rules. These proceedings were commenced under Order 52. The application was for an order of committal. The Respondent has pleaded guilty. The very nature of the proceedings indicates that if the application is granted, imprisonment is an option. The decision of the Court of Appeal in Parmanandan –v- Attorney-General (1972) 18 FLR 90 is authority for the proposition that a person found guilty of contempt scandalizing the Court under Order 52 of the High Court Rules is liable to be convicted and sentenced to a term of imprisonment.

[48]. However under Order 52 Rule 6 the Court may order that the execution of the order of committal shall be suspended for such time and on such conditions as may be specified. It is also apparent that under Order 52 Rule 8, the Court may, rather than make an order of committal, when a person has been found guilty of contempt of Court, order the person to pay a fine or to give security for his good behavior.

[49]. In addition to Order 52, it is necessary to consider what, if any, guidance may be derived from the Sentencing and Penalties Decree 2009. Section 3 (1) states:

"This Decree applies to all courts exercising jurisdiction in relation to criminal offences."

[50]. The position in relation to proceedings under Order 52 is ambiguous and the anomaly was succinctly explained by Grant CJ in a ruling in In re Parmanandan (unreported No. 90 of 1972 delivered 9 May 1972) when he noted:

"I am in no doubt that a contempt of Court consisting of scandalizing the Court is a criminal contempt as distinct from a civil contempt and that the Order of the Full Court amounts to a conviction of the Applicant (R –v- Gray [1900] UKLawRpKQB 63; [1900] 2 QB 36; Izora –v- Reg. [1953] AC 327).

The procedure for moving the Court to deal with that offence was indeed a civil one, namely Order 52 Rule 1 _ _ _ and to the extent that the procedure adopted was civil in nature but the contempt committed criminal in nature the matter may be described as hybrid".

[51]. In this case it is not necessary for me to decide whether the Sentencing and Penalties Decree is directly applicable. It is sufficient for me to indicate that there are provisions that provide some guidance when deciding upon an appropriate disposition. In particular I consider section 15 (the range of sentencing orders) and section 16 (conviction or non-conviction) to be relevant to the determination of an appropriate disposition in this case.

[52]. In considering the range of sentencing options available to me, I have concluded that committal (i.e. imprisonment) is not an appropriate penalty in this case. It is generally accepted that a sentence of imprisonment is a more serious sentence which should not be imposed unless the Court is satisfied that a lesser sentence will not meet the objectives that the Court is seeking to achieve. Furthermore a sentence of imprisonment is regarded as a penalty of last resort taking into account the general objectives that the imposition of any penalty is designed to achieve. In this case I am satisfied that the imposition of a lesser penalty will be sufficient to indicate to the Respondent the seriousness of his conduct, to deter others and to act as effective denunciation.

[53]. In my view a fine is the appropriate disposition in this case. The Court has a discretion as to the amount of the fine. That discretion must, however, be exercised fairly and in accordance with accepted principles. The fine should not be excessive. The fact that the Court has incomplete material before it to determine the financial circumstances of the Respondent does not prevent the Court from imposing a fine. In determining what is an appropriate amount of the fine, I should consider penalties imposed in this jurisdiction for a similar offence, at least recent relevant cases. Unfortunately, there are no recent cases in Fiji where a fine has been imposed on an individual for contempt scandalizing the Court. The penalties imposed by the Court in 1999 in Fiji are not indicative of the seriousness with which the Court in more recent times has viewed such cases. The sentencing judgment of Hickie J in In re Application by the Attorney-General against the Fiji Times and Others (unreported No. 124 of 2008 delivered 22 January 2009) provides a clear indication as to how the Courts now view contempt scandalizing the Court. In that case the editor of the newspaper that published the contemptuous words was sentenced to three months imprisonment suspended for two years. The company that published the newspaper was convicted and fined $100,000.00. Through its Chairman the company was required to enter into a bond in the sum of $50,000.00 to be of good behavior for a period of two years. I have also taken into account fines imposed by Courts in other jurisdictions for contempt of court. [Hinch –v- Attorney-General (VIC) [1987] VR 72 and (1987) 164 CLR 16; Attorney-General for the State of New South Wales –v- Radio 2UE Sydney Pty Limited and Another (unreported 40236 of 1996 delivered 11 March 1998; [1998] NSWSC 28); DPP –v- Frances and Another (No.2) (unreported, Supreme Court of South Australia, 25 August 2006; [2006] SASC 261)]. Although the contempt in those cases was not the same type of contempt as in the present case, in all criminal contempt cases, the mischief targeted is the real risk of undermining public confidence in the administration of justice. After a careful reading of the authorities and the submissions, I consider a fine of FJ$15,000.00 to be appropriate in this case.

[54]. The issue then is whether the penalty is imposed with or without formally recording a conviction. This is an option available to a court under the provisions of the Sentencing and Penalties Decree. Under section 15 (1) (f) when a court finds a person guilty of an offence it may, inter alia, with or without recording a conviction, order the offender to pay a fine.

[55]. Pursuant to section 16 (1) of the Decree, in deciding whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including (a) the nature of the offence; (b) the character and past history of the offender; and (c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects. It is therefore appropriate at this stage to determine whether the Court should exercise its discretion in favour of the Respondent.

[56]. First, in relation to the offence. I accept that the Respondent did not instigate the interview over the telephone with the reporter. Secondly I accept that the Respondent did eventually plead guilty. On the other hand, as previously noted, the contempt in this case was deliberate and serious. This is reflected in the penalty that has been imposed.

[57]. In relation to the character and past history of the Respondent, there is, as already noted, material to indicate that the Respondent is of good character.

[58]. Finally, the issue of the impact of a conviction on the employment situation of the Respondent. Although I accept that the affidavit material indicates that a conviction recorded against the Respondent may have consequences for his ability to travel (visa requirements), I do not accept that his position as General Secretary of OFC would necessarily become untenable or that he will be prevented from performing his principal duties and functions.

[59]. I have therefore concluded that the penalty imposed should be with conviction. The seriousness of the contempt, unambiguously aimed, as it was, at all the Judges of the Courts in Fiji, outweighs any consideration in favour of not proceeding to a conviction.

[60]. I make the following orders:

1. The Respondent is convicted on his own plea of guilty to contempt scandalizing the court pursuant to proceedings commenced by the Applicant under Order 52 of the High Court Rules.

2. The Respondent is sentenced to pay a fine of FJ$15,000.00 within 28 days from the date of this judgment. The fine is to be paid to the High Court (Civil) Registry, Suva.

3. The Respondent is ordered to pay the costs of the Applicant which are fixed summarily in the amount of FJ$3,500.00 within 28 days from the date of this judgment. The costs are to be paid to the Office of the Attorney-General in Suva.

4. The Respondent is to arrange for an apology directed to the judiciary of Fiji to be first drafted and submitted to the Court for approval prior to being published in the Fiji Times within 28 days from the date of this judgment.

W D Calanchini
Judge

8 February 2013
At Suva