Chaudhry, Re [2019] FJHC 488; HBC313.2018 (30 May 2019)

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Ms P. Prasad, Ms O. Solimailagi and Ms M. Ali for Applicant
Mr A. K. Singh for Respondent

(iii) Directed Applicant to file and serve Affidavit in Response (if necessary) by 22 April 2019;

“245. Upon a person being convicted of any offence the court may, with his or her consent and the consent of the prosecutor, take into consideration in deciding the sentence to be imposed any other untried offence of a like character which the accused admits to having committed.”

Fiji Times Ltd v. Attorney-General of Fiji [2017] FJSC 13; CBV005.2015 (21 April 2017).

“As the appellant submitted there is authority for the proposition that offences committed after the date of the commission of the offence for which the offender stands for sentence may not be taken into account for the purpose of imposing a heavier sentence, but may be considered for the purpose of deciding whether the offender is deserving of leniency: R v Hutchins 91958) 75 WN (NSW) 75; R v Kennedy (unreported 29 May 1990 NSW Court of Criminal Appeal); R v Boney (unreported 22 July 1991 NSW Court of Criminal Appeal); and see generally R v MAK and MSK [2006] NSW CA 381; 167 A Crim. R 159 at [58] 173.”

“I would read her Honour’s remarks as reflecting a view that the later offences could and should be taken into account by her in denying leniency.”

“[11]. The task for the Court now is to determine how should its power to punish the Respondents for contempt of court under Order 52 of the High Court Rules be exercised? In my judgment this is a case of contempt of court which should be punished by a penalty that reflects the public interest, acts as deterrence and appropriately denounces the conduct of the Respondents. 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 suggest that the court does not take seriously the role of safeguarding the community from scurrilous attacks on its judiciary amounting to contempt scandalizing the court.

[12]. In determining what penalty should be imposed on each of the Respondents there are a number of factors that have been identified in the authorities that are usually considered to be relevant. 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 29) Powell J A 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 consequences of the act or statement – of the person found to have been guilty of the contempt and any other subjective factors."

[13]. Apart from seriousness and culpability, other factors that should be considered in the present case are (i) any early plea of guilty, (ii) any previous convictions, (iii) any demonstration of remorse and (iv) the personal circumstances of the Respondents.”

“The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that "it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority": per Dixon J. in R v Dunbabin; Ex parte Wil&iams [1935] HCA 34; (1935)L53 C4 at 447. The aThe authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless ks onintegrity or impa impartialrtiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment "is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable": R v Fletcher; Ete Kisch, peh, per Evatt J [1935 1; [1935] HCA 1; (1935) 52 CLR 248 248 at 257.”(Emphasis added).

Name of Case	Facts	Penalty
Parmanandam case	The material constituting the contempt was contained in a lengthy speech made at a political meeting, part of which was subsequently published in a pamphlet alleging: “the NFP platform[is] to clean the judiciary once and for all”, magistrates were being appointed as Judges which called into question whether they may be “sacrificing a principle or a rule, or a particular rule of law, for the sake of expediency or for the sake of promotion”, questioning the appointment of an Australian as Chief Justice with his position being paid by the Australian government and how this reflected upon Fiji’s independence, questioning appointments to the Court of Appeal when “their future appointments in sessions depend entirely upon” the Chief Justice, and that “TWO SUVA LAWYERS WERE CONDEMNED IN ABSENTIA IN A COURT OF LAW” by the Chief Justice which the Court of Appeal found “was a clear imputation that the Chief Justice had disregarded basic and elementary principles of justice” and was imputation that was false. Contemnor apologises to both Supreme Court and Court of Appeal.	Six months imprisonment reduced to three months by Court of Appeal.
Chaudhry case	The material constituting the contempt was published in a pamphlet which repeated suggestions that some judges and magistrates were corrupt. This was published in the Daily Post on 14 July 1997 under the heading “Judiciary Corrupt” and was as follows: “There has been public suspicion since the coups that many in our judicial system are corrupt. In several cases well known lawyers have been identified as receiving agents for magistrates and judges. A number of lawyers are known to arrange for them to appear before their preferred magistrates or judges.”	Court costs to be paid within 7 days fixed at FJ$500
The Fiji Times case (2009)	On 22 October 2008, the following letter to the Editor was published on page 6 of The Fiji Times as follows: “Court ruling A DARK day in the annals of Fiji’s judiciary and legal history was brought about by the totally biased, corrupt and self preserving judgment handed down by Anthony Gates, John Byrnes [sic] and Devendra Pathik [sic] in the Qarase vs Bainimarama case. I do not know Mr Qarase nor am I a member of the SDL but I know when an unjustice [sic] has been committed and I believe that the injustice in this case must be condemned by all law abiding citizens ... *The judiciary was tainted from the day* Justice Daniel Fatiaki was forcefully removed and Anthony Gates unashamedly usurped his position. *Gates’ efforts to legalise the immunity is laughable given the immunity was designed to protect him also.* Thank you Mr Qarase and keep up the good fight against oppression, tyranny and injustice. *VILI NAVUKITU* *Queensland, Australia*” The contemnors pleaded guilty.	Parties pleaded guilty. The editor-in-chief of the Fiji Times was sentenced to a term of imprisonment of three months which was suspended upon him entering into a good behaviour bond for 12 months. The publisher was discharged without conviction upon entering into a good behaviour bond for 12 months. Fiji Times Limited was ordered to pay a fine of FJ$100,000.00. Fiji Times Limited was ordered to enter into a $50,000 bond for 2 years on behalf of its Chairman.
Nicholas case	The contemnor was quoted in an article that appeared in the website of the Sunday Star Times on 6 November 2011 containing the following 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.’” Contemnor pleaded guilty to the offence of contempt of court.	Fined $15,000 and $3500 costs. Ordered to arrange for an apology directed to the judiciary of Fiji.
The Fiji Times case (2017)	On Monday 7 November 2011, an article entitled “FIFA Probes Doc” was published on page 30 of the Fiji Times. 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 is not a court per se.’”	Fiji Times Limited was fined FJ$300,000.00. The Second Respondent (Brian O'Flaherty) was ordered to pay a fine of FJ$10,000.00. (Reduced to $7,500.00 by Court of Appeal). The Third Respondent (Fred Wesley) was sentenced to a term of six months imprisonment.
ATS case	The contemnor had brought a claim against the defendants seeking a declaration that the Articles of Association of Air Terminal Services (Fiji) Ltd which permitted the removal of directors as oppressive and prejudicial and that the contemnors removal as a director was illegal, oppressive, null and void. The Defendants filed a strike out application. Before the court delivered its judgment on the strike out application, the contemnor filed an ex parte application to stop an AGM. The application was heard and dismissed on the day it was filed. The contemnor then went ahead and made various statements and interviews regarding the outcome of the case, the judge who was nominated to hear the case and the entire Fijian judiciary. The video was made publicly accessible on the social networking site Facebook.	Costs in the sum of $9000.00 to the Applicants and convicted as charged for contempt of scandalising the court and sentenced to immediate imprisonment of a period of three (3) months.

Is the corrupt and pliant judiciary full of Sri Lankan monkeys and locals who need a job!

Questions and comments for the corrupt and thoroughly incompetent Fiji CJ Anthony Gates!...

Since the abrogation of the 1997 Constitution, our judiciary has been compromised...”

On 5 September 2018 at 5.26 pm, the Respondent posted a statement containing the following words:

Why aren’t local judicial officers sent for overseas training? Come on corrupt CJ Gates we want answers and now!

Fiji bench members sent for criminal judicial training to the UK, overseas judges only, poor locals jhinga Maro in Fiji.”

“Another reason why the corrupt Fiji judiciary will be an election issue!

It should be noted that no Judge who has gone to Fiji from the AG’s chamber has even been appointed as a District Court Judge in Sri Lanka far less a High Court, Appeals Court or Supreme Court Judge and that gives an indication of their relative lack of seniority in the AG’s department when we send them to Fiji”

Further, on 11 September 2018 at 6.43 am, the Respondent posted statements containing the following words:

“More on the corrupt Fiji judiciary run by Sri Lankan regime lackeys! ...

The Sri Lankan Court of Appeal now in Suva, dispensing supreme injustice in Fiji.”

Meanwhile, President of the Fiji Court of Appeal, Bill Calanchini is being trained at Cambridge while resident justice Sri Lankan Suresh Chandra is heading to Brazil to be trained at the ripe old age of 70.

Why train them at the end of their judicial careers unless they’re so unqualified and inexperienced?

on 13 September 2018 at 6.07 pm, the Respondent posted a statement containing the following words:

This time it concerns CR aka Yohan Liyanage aka Monkey Face! Gross waste of taxpayer monies investing in this bum!”

“Remember the corrupt Fiji Judiciary which is the number one threat to democracy today!

The practices and removal of the corrupt Judiciary will be a key election issue.”

Fiji’s illegal lying thieving CJ. Any wonder the people have no faith in the Judiciary! More to come.”

Further, at 10.26 am, the Respondent posted a statement containing the following words:

Also, at 8.29 pm, the Respondent posted a statement containing the following words:

I stand by my posts on the corrupt Fiji judiciary! The regime is rattled as I have made the corrupt Fiji judiciary an election issue!

Post regime change there will be a major change overhaul of the judiciary and boy aren’t some of them going to be answering some serious questions and that include Anthony Corrupt Thieving Lying Gates!

And let’s see how the corrupt Fiji judiciary can explain being a judge in its own cause! This and matters of jurisdiction will make this a case where the corrupt and pliant judiciary will see that picking a fight with me will come with devastating consequences!

On 29 October at 8.19 pm, the Respondent posted statements containing the following words:

“Ratu Naiqama case on constitutional redress was heard 14052016 by Gates, no judgement delivered yet he has time for the Rabuka appeal by FICAC.””

Why is Rabuka appeal rushed through and FFP Minister Mahend Kanwa Reddy’s appeal still somewhere in the court system despite his case being much older (15 May 2018 when appeal appealed filed by FICAC) than SLR’s case.

Why did the corrupt CJ Anthony Gates not abide by the statutory service 3 clear days service prior to the matter being listed for first call re FICAC appeal against Rabuka acquittal?

Section 18A of the PPRD only applies only to a charge and not an appeal and that is what the corrupt judiciary is doing with the Reddy case so why rush the SLR appeal?

18A. A court must promptly make a decision with respect to a charge filed for an election related offence under this Act, the Electoral (Registration of Voters) Act 2012 and the Political Parties (Registration, Conduct, Funding and Disclosures) Act2013.”

Why the rush to proceed against Rabuka and not against Mahendra Kanwa Reddy – whose acquittal for a supposed election related offence – was also appealed by FICAC? Why the double standards by the judiciary?

How the Court of Appeal and Supreme Court judges disbelieved the corrupt CJ Anthony Gates in the Qaranivalu appeal.

(ii) Publication of the comments by the Respondent was done deliberately with intent to interfere with administration of justice;

(iv) The comments were aimed at undermining the public confidence in administration of justice in Fiji and Fijian Democracy;

(v) The comments (most of it) “are very damaging and calculated to tarnish the reputation, integrity and dignity of the Fijian Judicial System;

(vi) Publishing photos of Chief Justice at that time and Chief Registrar have exposed them to ridicule and embarrassment in the eyes of the public which puts fear in fair-minded person as to state of administration of justice in Fiji in the hands of two senior judicial officers;

(vii) Respondent has not shown any remorse for his action and not sought any leniency from this Court;

(i) The Respondent, Rajendra Chaudhry be imprisoned for fifteen (15) months from date of his arrest;

(iii) The Respondent, Rajendra Chaudhry do pay fine in the sum of Fifty Thousand Dollars ($50,000.00) within twenty-eight (28) days from date of this Judgment;

(iv) The Respondent, Rajendra Chaudhry pay to the Applicant cost for sentence hearing assessed in the sum of Three Thousand Dollars ($3,000.00).

High Court of Fiji

Chaudhry, Re [2019] FJHC 488; HBC313.2018 (30 May 2019)