Fiji Times Ltd v Attorney General of Fiji [2017] FJSC 13; CBV0005.2015 (21 April 2017)

IN THE SUPREME COURT OF FIJI
AT SUVA

CIVIL PETITION NO: CBV 0005 of 2015
[Court of Appeal No: ABU 0011 of 2013]

BETWEEN:

FIJI TIMES LIMITED
BRIAN O’FLAHERTY
FRED WESLEY
Petitioners

AND:

THE ATTORNEY GENERAL OF FIJI

Respondent

Coram : Chandra J
Keith J

Kankani J

Counsel : Mr. J. L. Apted for the Petitioner
Ms. R. Mani and Mr. A. Prakash for the Respondent

Date of Hearing : 13 October 2016
Date of Judgment : 21 April 2017

J U D G M E N T

Chandra J

[1] This is an application for Leave to appeal from the judgment of the Court of Appeal which dismissed the appeal of the Petitioner against the decision of the High Court.

[2] The Petitioners in their petition for leave to appeal have set out the following grounds of appeal:

“The principle grounds on which this Petition is based are:

(a) The Learned Justices of the Court of Appeal erred in law in upholding the ‘nature of jurisdiction which the learned High Court Judge below had taken into consideration.

(b) The Learned Justice of the Court of Appeal erred in law in holding that the defence of truth is not part of the law relating to criminal contempt in Fiji, when the Court of Appeal had in an earlier case already decided to the effect that it was part of the law in Fiji.

(c) The Learned Justices of the Court of Appeal erred in law and in fact in holding that the reference to the Independent Legal Services Commission as ‘the Australian Judge’ which was ‘not a court per se’ was ‘scornful, spiteful and derogatory if not insulting’ and was therefore contempt of scandalizing the court punishable by the High Court.

(d) The Learned Justices of the Court of Appeal erred in law and in fact in respect of the test for contempt of scandalizing the court which they applied, and in holding that the published article in question constituted the contempt of scandalizing the court because it carried a real risk to the administration of justice since it would leave a reasonable man reading the article in doubt about the administration of justice and the existence of a judiciary in Fiji.

(e) The Learned Justices of the Court of Appeal erred in law in not accepting the Petitioners’ submissions that the basis on which the Learned Judge in the High Court had found the Article to be contemptuous had never been advanced by the Respondent for the Petitioners to answer in the High Court, so that it was unjust to convict them on that basis.

(f) The Learned Justices of the Court of Appeal erred in law in not finding that mens rea is now an essential element of the offence of contempt of court and in holding that –

• (i) Liability does not require proof of intent;
• (ii) 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;
• (iii) If an impugned publication on the face of it carries a real risk in the minds of an ordinary and reasonable reader of having the effect of undermining the administration of the 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.

(g) The Learned Justices of the Court of Appeal erred in law in holding that it was the Second Petitioner as the publisher, as a natural person who was vested with the liability for publishing the impugned Article, when the true publisher was the First Petitioner, which was the proprietor of the newspaper and the Second Respondent merely held the internal position called ‘Publisher’.

(h) The Learned Justices of the Court of Appeal erred in law in holding that the Third Petitioner was liable for publication of the impugned Article on the basis of vicarious (or strict) liability.

(i) The Learned Justices of the Court of Appeal erred in law in holding that –

(i) whether mens rea should be regarded as an essential requirement of a criminal contempt of court; and

(ii) whether a strict liability should apply to a newspaper publication and upon its publisher and editor;

were matters for the legislature, when the offence of contempt of court in Fiji is governed by the common law.

(j) The Learned Justices of the Court of Appeal erred in law in upholding the convictions of the Petitioners.

(k) The Learned Justices of the Court of Appeal erred in law and in fact by declining to consider the Third Petitioner’s appeal against his suspended custodial sentence because the period of the suspension had in fact expired and there appeared no move by him to seek a declaration before the Court of Appeal retrospectively to vindicate his cause in principle, when the third petitioner had appealed against his sentence and it was the second petitioner who had not appealed against his sentence.

(l) The Learned Justices of the Court of Appeal erred in law and in fact in not finding that the sentences imposed on the First and Third Petitioner were manifestly excessive in general and because inter alia –

• (i) the learned High Court Judge did not give adequate weight to his finding that the publication of the offending words was unintentional;
  
• (ii) the learned High Court Judge erred in law by giving undue weight to material published on page 71 of the Fiji Times of 30 June 2012 as if it had been the subject of a separate charge and conviction;
  
• (iii) the learned High Court Judge erred in law in requiring a fail-safe system to prevent contemptuous publications and in finding that because the system proved in the circumstances to be inadequate and has subsequently been improved, it did not relieve the First and Third Petitioners of responsibility and culpability;
  
• (iv) the learned High Court Judge erred in law in sentencing the Third Petitioner to a custodial sentence, when he had no personal knowledge of and involvement with the relevant article and so had no personal intention to publish the article;
  
• (v) the learned High Court Judge erred in law in holding that because the Third Petitioner had pleaded not guilty inter alia because he was not culpable at law, a claim of genuine remorse must necessarily be regarded as less worthy of credit and his apology might be viewed as qualified;
  
• (vi) the learned High Court Judge erred in law in relation to the Third Petitioner in giving weight to a previous conviction of his predecessor as Editor of the Fiji Times.”
  

[3] The Petitioners have urged that the above grounds raise the following matters of law:

“The matters of law raised by the foregoing grounds raised –

(a) far-reaching questions of law;
(b) matters of great general or public importance;
(c) matters that are otherwise of substantial general interest to the administration of criminal and/or civil justice; and or
(d) a substantial and grave injustice may otherwise occur.”

The Factual Matrix

[4] The factual matrix in brief relating to this appeal is set out as follows:

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.”

These words were part of a statement made by one Tai Nicholas who was described as the General Secretary of the Oceania Football Confederation. The reference to “his case” in the 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).

On 10 November 2011 the Respondent sought leave ex parte to apply for an order of committal against the Fiji Times Ltd, Brian O’Flaherty and Fred Wesley (the Appellants) in terms of Order 52 Rule 2 of the High Court Rules.

The Respondent alleged that the words and the statement published in the Fiji Times scandalised the Court and the Judiciary in that they were a scurrilous attack on the judiciary and the members of the judiciary, thereby lowering the authority of the judiciary and the Court.

The Appellants pleaded not guilty and the learned High Court Judge after hearing found the Appellants guilty of contempt scandalizing the Court and made the following orders:

“1. The First Respondent (Fiji Times Limited) is convicted and fined FJD$300,000.00 to be paid within 28 days from the date of this Judgment.

2. The First Respondent is ordered to pay costs to the Applicant in the sum of FJD$2,000.00 within 28 days from the date of this Judgment.
3. The Second Respondent (Brain O’Flaherty) is convicted and ordered to pay a fine of FJD$10,000.00 within 28 days from the date of this Judgment.
4. The Second Respondent is ordered to pay costs in the sum of FJD$2,000.00 to the Applicant within 28 days from the date of this Judgment.
5. The Third Respondent (Fred Wesley) is convicted and is sentenced to a term of six months imprisonment to be wholly suspended for a period of two years.
6. The Third Respondent is ordered to pay costs to the Applicant in the sum of FJD$2,000.00 within 28 days from the date of this judgment.
7. The First and Third Respondents are ordered 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.
8. The fines are to be paid to the High Court (Civil) Registry in Suva.
9. The costs are to be paid to the Office of the Attorney General in Suva.”
   

The Appellants appealed against the judgment and orders of the High Court to the Court of Appeal. The Court of Appeal by judgment dated 2 October 2015 dismissed the appeal subject to the variation of the fine imposed on the 2^nd Appellant by reducing the fine of $10,000 to $7,500.

[5] I have had the benefit of reading the draft judgment of Justice Keith with whose judgment I am not in agreement. I propose to deal with the appeal filed by the Petitioners separately. Since Justice Keith has set out the facts in detail which led to the publication of the impugned article, I shall not repeat same but would use same for the purposes of my judgment.

Applicable Law in Fiji

[6] There is no Statute Law in Fiji dealing with contempt and it is the Common Law principles that have been applied in the cases that have dealt with the subject of contempt. There have been three instances in Fiji, where contempt was considered, namely Vijaya Paramanandam v Attorney-General (1972) 18 FLR 90 (23 June 1972), Chaudhry v Attorney General [1999] FJHC 28; [1999] 45 FLR 87 (4 May 1999) and In Re Application by the Attorney General of Fiji [2009] Civil Action No.124 of 2008 (22 January 2009).

[7] In Paramanandam, the material relied upon as constituting contempt was contained in a speech made at a political meeting and in a pamphlet distributed which were derogatory. The then Supreme Court convicted the contemnor and on appeal the Court of Appeal upheld the conviction. The Court of Appeal at p.96 stated:

“The test is what any fair minded and reasonable man would understand from the speech and pamphlet, and we are satisfied that a construction so arrived at fully supports the finding of the Supreme Court that this went beyond fair criticism and amounted to a gross contempt.”

[8] In Chaudhry, the contemnor published a pamphlet which repeated suggestions that some judges and magistrates were corrupt. Mr. Chaudhry was subsequently convicted of contempt of Court. On appeal, the Court of Appeal was of the view that Chaudhury’s statement went far beyond the voicing of mere suspicions and was satisfied that his statement was serious enough to constitute a real risk to the authority and independence of the Courts. As such, the Court of Appeal upheld the decision of the High Court. The Court of Appeal dealt with the position of contempt at Common Law and considered the body of law which had developed in other jurisdictions in great detail. At page 92 the Court of Appeal went on to state :

“This summary indicates that the common-law offence of contempt scandalising 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.”

[9] In arriving at this conclusion the Court of Appeal adopted the “real risk” test applied in the New Zealand case of Solicitor-General v Radio Avon Ltd [1978] 1NZLR 225, which accorded with the general common law view reflected in Attorney General v Times Newspapers Ltd [1974] AC 273 and the minority view in the Canadian case of R v Kopyto (1988) 47 DLR (4^th) 213.

[10] In Re Application by the Attorney Genral of Fiji (hereinafter referred to as “The Fiji Times case (2009)”) involved an instance where Fiji Times had published in their newspaper a letter sent to the editor by a person purporting to be from Queensland, Australia. Contempt proceedings had been taken against Fiji Times, the Publisher and the Editor and on their pleading guilty they were convicted and sentenced on 22 January 2009. Ironically, two years later Fiji Times had to face contempt charges again, which is the present case regarding a news item from a New Zealand newspaper which was published in the Fiji Times.

[11] The difference between the approach of Fiji Times in the present case and the earlier case is that in the present case they pleaded not guilty on the basis that the derogatory statements were not contemptuous while in the earlier case they pleaded guilty as they considered the derogatory statements to be contemptuous.

[12] Hickie J in the 2009 Fiji Times Case set out the law relating to contempt fairly exhaustively citing judgments from Australia, England, Malaysia, India, Hong Kong and the earlier cases in Fiji (Paramanandan and Chaudhury). Hickie J commenced his analysis of the developments in other jurisdictions by setting out the classic description of contempt by Lord Russel of Killowen CJ in Reg. v Gray [1900] UKLawRpKQB 63; [1900] 2 Q.B. 36, 40 where he said:

“Any act done or writing published calculated to bring a court of a judge of the court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the courts is a contempt of court”.

Hickie J having set out the position regarding the law relating to contempt concluded thus:

“... ... I hope that the above provided a useful summary to assist all citizens of the Fiji Islands, including members of the legal profession, the media, politicians, academic and other commentators who may have been in doubt as to what is the law in this country on contempt by way of “scandalising a Court or a judge” so that it cannot be said for any offences which may arise in the immediate future that there was some ambiguity or misunderstanding as to the legal position. If in doubt, perhaps a useful guide has been provided by the High Court of Hong Kong, Court of First Instance, in its headnote to The Secretary for Justice v The Oriental Press Group Limited and Ors (High Court of Hong Kong, Court of First Instance, Miscellaneous Proceedings No.407 of 1998, Chan CJHC and Keith J) which was the first recorded case in Hong Kong of proceedings for contempt by way of scandalising a court or judge it summarised the law as follows (and which is an equally applicable summary as to the general current state of the law in the Fiji Islands):

“(1) A person, firm or company cannot be convicted of the criminal offences of scandalising the court or interfering with the administration of justice unless the facts establish beyond a reasonable doubt that there was a real risk, as opposed to a remote possibility, that the acts complained of would undermine public confidence in the due administration of justice in the minds of at least some of the persons who were likely to become aware of the acts complained of.

(2) The offences of scandalising the court and interfering with the administration of justice do not require proof that the alleged contemnor intended to undermine public confidence in the due administration of justice. It is sufficient if he(or she) intended to do the acts which are said to constitute the contempt.

(3) Upon the assumption that making the scandalising of the court a criminal offence amounts to a restriction on the right of freedom of expression, that restriction was

(a) for the protection of “public order (order public)” within the meaning of Art.16(3)(b) of the Bill of Rights because it was for the protection of the rule of law to the extent that the rule of law is eroded if public confidence in the due administration of justice is undermined, and

• (b) necessary for the achievement of that objective.

Accordingly, the criminal offence of scandalising the court has not been abolished or modified by the Bill of Rights.”

(Emphasis added)

[13] From the above decisions in Fiji, the law as it stood after the decision in Fiji Times (2009) was quite clear regarding contempt as being derived from the Common Law and that the test to be adopted was that of the “real risk” test. What was necessary was to show that there was a real risk that the statements made would undermine the public confidence in the administration of justice and it was sufficient to show that the contemnor had intended to do the acts which are said to constitute the contempt.

The Present Appeal

[14] In the High Court, Calanchini J dealt with the impugned statements on the basis of the identity of the publication, the readership of the publication and the nature of jurisdiction in which the words were published. He concluded that there was no issue as to the identity of the publication as it appeared in the Fiji Times newspaper which has a nationwide circulation. As regards the readership of the publication, he stated that the subject matter of the story would have attracted the attention and interest of most members of the community who follow or support soccer and those whilst browsing the sports section would have caught the reference to “DOC” in the heading.

[15] In considering the issue of the nature of the jurisdiction, which is one of the main grounds that has been relied on by the Petitioners in the present appeal, Calanchini J (at p.00302 of HCR) stated thus:

“In considering the issue of the nature of the jurisdiction, reference should be made to the decision of the Privy Council in Ahnee and Others v Director of Public Prosecutions [1999] UKPC 11; [1999] 2 WLR 1305 at page 1313”

“Their Lordship has 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.”

[16] In relation to the reference by Lord Steyn in Ahnee, of “the need for the offence of scandalizing the court on a small island is greater” Calanchini J stated:

“... ... It can be inferred that the recent constitutional history of the Island state was a matter that may have lead their Lordships to such a conclusion. It would, of course, be no less true that not only the recent constitutional history of Fiji but also its constitutional history since independence in 1970 would at times have meant that the administration of justice has been more vulnerable than in the United Kingdom. It would follow also that the need for the offence of scandalizing the court in Fiji as an Island state (albeit of more than 300 islands) is greater than in a developed State.”

[17] Having dealt with the question of jurisdiction the learned Judge of the High Court proceeded to apply the “real risk” test and stated (at p.303 of HCR):

“With the real risk test it is not necessary for the Applicant to establish that the Respondents intended to commit the offence of contempt scandalizing the court. If the publication was intentional and if the words published risked undermining confidence in or the authority of the Court or of the judiciary, there was no requirement to establish an additional element of mens rea: see Ahnee v DPP (supra) at page 1315. This proposition had previously been adopted in this jurisdiction by the Court of Appeal in Chaudhry v Attorney General of Fiji (supra) ... ... ”

[18] As to how a reader in Fiji would consider the article Justice Calanchini stated:

“I am satisfied that a fair minded and reasonable person reading the story on page 30 of the Fiji Times on 7 November 2011 would understand the words in the context of the published article to mean more than literally that there was “no judiciary there”. It is of no assistance to the Respondents to claim that readers knew that there was a judiciary in Fiji. Fair minded and reasonable readers of the Fiji Times may well be are that there were Judges performing judicial functions on a daily basis in Fiji. The fair minded and reasonable person would conclude that the Fiji Times also knows about the existence of those judges in Fiji since the paper reports on court proceedings. However it is reasonable to conclude that a reasonable and fair minded person would then ask himself why did the paper publish the words. The fair minded and reasonable person reading those words would conclude that the words must mean that those who claim to be performing judicial functions in Fiji are not in fact a judiciary at all.”

[19] Calanchini J in his judgment also considered the suggestion that the words spoken of was by a person who may have been mistaken as to the existence of the judiciary of Fiji and stated thus (at p.304 of HCR)

“The extent of the knowledge and the intention of the person who uttered the words is not relevant in these proceedings. It is the act of publication that is the gist of the present contempt. It is not the maker of the statement who is a party to these proceedings. The parties who printed and published the words and the statement are before the Court for the act of printing and publishing. I do accept that it may not have been the intention of the Respondent to undermine public confidence in the administration of justice. However the only intention that is relevant is the intention to publish the story. The material before the Court indicates that there was no effort made by the Respondents to determine prior to publication whether the words might constitute contempt by scandalizing the court.”

[20] Arriving at the final conclusion regarding the effect of the words published, Calanchini J (at p.304 of HCR) stated :

“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. I am satisfied that publication of the words represents a real risk of undermining the confidence of the people in the judiciary and in the judgments of the Courts since they have the effect of lowering the authority of the Court and its judiciary. The words generate misgiving as to integrity, ability and impartiality which are qualities fundamental to the judicial office and rule of laws. See R v Dunabin; ex parte Williams [1935] HCA 34; (1935) 53 CLR 434. I am satisfied that the offence of contempt scandalising the court has been established against the First Respondent, Fiji Times Limited.”

[21] It is clear therefore that the High Court in convicting the Petitioners applied the real risk test as set out above and also on the basis that mens rea was not a requirement.

[22] The Court of Appeal addressed the question relating to ‘the nature of jurisdiction’ in their judgment dismissing the appeal of the Petitioners and therefore it is incorrect for the Petitioners to argue that the Court of Appeal did not address this issue.

[23] At the time that the matter was argued before the Court of Appeal, the decision in Dhooharika v Public Prosecutions [2014] 3 WLR 1081 was decided and it was the contention of the Petitioners that Dhooharika had resiled from Ahnee. Dhooharika was also an appeal from Mauritius to the Privy Council. The Court of Appeal having considered the decision in Dhooharika stated thus:

“[33] It would thus be seen that the “nature of 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 appropriate; that local conditions were relevant to the need of the offence; that, having regard to the 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.”

[24] Although the Privy Council in its judgment allowed the appeal in Dhooharika, the grounds on which the appeal was allowed were on the question of the Appellant not being given an adequate hearing and if the Appellant had been given an opportunity to be heard, the question of good faith on the part of the Appellant as a defence could have been determined. However, the Privy Council did not depart from the principles laid down in Ahnee relating to contempt.

[25] There was no error committed either by the High Court or the Court of Appeal on the question of the nature of jurisdiction and the Petitioners contention on that score fails.

[26] The Petitioners also contended that the Court of Appeal erred in law in holding that the defence of truth was not part of the law relating to criminal contempt as the Court of Appeal had in the earlier case of Chaudhry (supra) suggested that the defences of honest and fair comment and justification or truth may be available in Fiji. It may be noted here, that the defence of honest and fair comment was considered not necessary to take a decision in that case.

[27] The offending part of the article in the present case was not truthful as the judiciary was in place in Fiji at the time that the article was published. The Petitioners therefore could not have availed of truth as a defence in the present case in any event.

[28] That being the case, except for laying down the principles that would apply in contempt cases the consideration of this ground is not relevant. However, the views expressed in Chaudhury (supra) and the Court of Appeal in the present case regarding the position of whether truth is a defence is not relevant regarding the outcome of this case as it was not a defence taken up by the Petitioners, and would be best left to be dealt with in an appropriate case.

[29] The Petitioners contended that the Court of Appeal erred in law and in fact in holding that the reference to the Independent Legal Service Commission as “the Australian Judge” which was “not a court per se” was “scornful, spiteful and derogatory if not insulting” and was therefore contempt of scandalising the court punishable by the High Court.

[30] The Independent Legal Services Commission had been established under the Legal Practitioners Decree, 2009 and was part of the judicial system in Fiji. Mr. Connors, an Australian, who had earlier served as a High Court Judge in Fiji, had been appointed as the Commissioner of the said Commission and the statement referred to him, as the Commissioner who had taken the decision regarding Dr. Sahu Khan. No doubt, he was an Australian, but he was the appointed Commissioner of the said Commission under the said Decree.

[31] The statement had to be read as a whole and in the context in which the entire article would be read. It could convey to a reader that the disciplinary decision had been given against Dr. Sahu Khan by an Australian Judge sitting in an Institution which was not a court as there was no judiciary in place. Even if one considers the Independent Legal Services Commission as a separate entity, nevertheless it is part of the system administering justice in Fiji. Counsel argued citing Badry v DPP [1982] 2 All ER973, that contempt would not apply to statements regarding quasi-judicial bodies, considering the Independent Legal service Commission as a quasi-judicial body. In Badry’s case the Privy Council held that contempt was not applicable regarding statements made about a Commissioner appointed under the Commissions of Inquiry Ordinance (Mauritius).

[32] The decision in Badry can be distinguished from the position in the present case. In the present case although there was reference in the statement regarding the Commissioner appointed under the Legal Practitioners’ Decree, what the statement conveyed was that, since there was no judiciary in Fiji an Australian had been appointed to inquire into the matter regarding Dr. Sahu Khan.

[33] Counsel’s argument has been by taking the statement relating to the ILSC out of context of the entirety of the article which had to be read as a whole. The impact of the statement was on the administration of justice in Fiji since it stated that there was no judiciary in Fiji, which statement was in fact untrue as the judiciary was in place at that time.

[34] What was necessary to be seen was what effect such a statement would have on a reasonable reader in Fiji, to cause a doubt in his mind regarding the existence of the judiciary, and the administration of justice in Fiji. To my mind such a statement would undermine the administration of justice and the Court of Appeal too has considered it to be so. Therefore there was no error either in law or fact committed by the Court of Appeal in treating the statement as being contemptuous.

[35] The Petitioners further contention was that the Court of Appeal erred in law in not finding that mens rea is now an essential element of the offence of contempt of court. In support of this contention the Petitioners relied on the judgment in Dhooharika (supra).

[36] In Ahnee’s case (which was relied on by the learned High Court Judge) the element of mens rea was not considered to be a requirement in contempt of court matters. In Ahnee’s case on the issue of mens rea at p.1315 it was stated:

“Counsel for the contemnors submitted that the Supreme Court was wrong to hold that mens rea was not an ingredient of the offence of scandalising the Court. The publication was intentional. If the article was calculated to undermine the authority of the court, and if the defence of fair criticism in good faith was inapplicable, the offence was established. There is no additional element of mens rea. The decision of the Supreme Court on this point of law was sound.”

[37] The learned High Court J in the present case held (HCR p.303) that”

“With the real risk test it is not necessary for the Applicant to establish that the Respondents intended to commit the offence of contempt of scandalizing the court. If the publication was intentional and if the words published risked undermining confidence in the authority of the Court or of the judiciary, there was no requirement to establish an additional element of mens rea: See Ahnee v DPP (supra) at page 1315. This proposition had previously been adopted in this jurisdiction by the Court of Appeal in Chaudhry v Attorney General of Fiji (supra) at page 91”

“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 ....”

[38] Therefore in Fiji up until the time that the High Court gave its decision in the present case mens rea was not an ingredient of the offence of contempt. Therefore on that score the judgment of the High Court could not be faulted as what was applied was the law that was applicable in Fiji at that time. The contention of the Petitioners is that the Court of Appeal erred in not considering mens rea to be an ingredient of the offence of contempt when it gave its decision as Dhooharika’s case had resiled from Ahnee’s case.

[39] The question then arises as to how did Dhooharika’s case differ from the position in Ahnee. Dhooharika did not decide that mens rea was a necessary ingredient. A reading of the decision in Dhooharika would give the impression that the Privy Council had elaborated on the aspect of good faith spoken to by Lord Steyn in the judgment in Ahnee. In Dhooharika, Lord Clarke stated at p.1096:

“48. ... ... As Lord Steyn made clear in Ahnee’s case, if the defendant acted in good faith, he is not liable. Since the court is here concerned with a criminal offence, the burden must be on the prosecution to establish the relevant facts beyond reasonable doubt. There can be no legal burden on the defendant. Thus, at any rate once the defendant asserts that he acted in good faith, the prosecution must establish that he acted in bad faith. If the prosecution establish that he either intended to undermine public confidence in the administration of justice or was subjectively reckless as to whether he did or not, that would in the opinion of the Board, be evidence of bad faith. It is perhaps for this reason that Lord Steyn expressed the view that the defendant had to act otherwise than in good faith, that is in bad faith, and that there was no further element of mens rea required.”

[40] It is on this basis that the Petitioners have professed the argument that the Court of Appeal erred in not considering mens rea as an ingredient when considering the position set out in Dhooharika, and that even the High Court had not applied Ahnee’s decision in the manner that it should have been applied. In support of this contention the Petitioners have submitted that the thrust of their case before the High Court was that the Article in question was published in good faith.

[41] The Petitioners in support of this argument have relied on the evidence of Rashneel Kumar (Sports Reporter) that he selected the article from the internet because it was about Dr. Sahu Khan and would be of local interest, and the evidence of Manoj Kumar (Sports Editor) to the effect that he included the article for publication because of the focus on Dr. Sahu Khan. That it was supported by the headline which he deposed that he inserted above the story in substitution for the original New Zealand headline. Dr. Sahu Khan had been a Senior Practitioner in Fiji, and had been involved in soccer administration in Fiji and apparently been a prominent figure about whom the public would have been interested in reading about. Manoj Kumar had stated further that, he had not sought legal advice on the article because he believed that it had already undergone legal scrutiny in New Zealand. In his affidavit, he had also stated, that Tai Nicholas (who had made the statement in the said newspaper article) was wrong in what he had stated about the Fiji Judiciary. He further stated that he did not foresee any risk that the publication of the article might create a risk of undermining public confidence in the administration of justice. That he considered the question, but thought that there was no risk.

[42] The above cited evidence is what the Petitioners are relying on to state that the article was published in good faith. The Petitioners have failed to state that Manoj Kumar had deposed in his affidavit that, since he was pressed for time he read only the first six paragraphs of the article and skimmed through the rest of it, whereas he should have read through the whole article, not skimming through it, to see whether it would be offensive or not, specially when there was a mechanism in place to consider those matters which he was aware of. The belief on his part that the New Zealand newspapers would have scrutinised it legally was not good enough to see whether it was in order to publish it in Fiji.

[43] In his affidavit, he had also stated, that Tai Nicholas (who had made the statement in the said newspaper article) was wrong in what he had stated about the Fiji Judiciary. The Editor, the 3^rd Petitioner had stated in his affidavit to Court that Tai Nicholas was mistaken and was ignorant of the real situation, while the 2^nd Petitioner in his affidavit to Court stated that Tai Nicholas had been ill-informed. Having said so, they continued with the case and up till the present appeal with the position that the statements in question were not contemptuous.

[44] The evidence of Manoj Kumar was to the effect that he did not read through the entire article, that he did not go through the normal scrutiny process that was in place within his organisation, and thought that if New Zealand papers had published it, it would have undergone legal scrutiny in New Zealand. This evidence spells of utter neglect of procedures and also not being concerned about what the article really contained. He should have foreseen the risk of the kind of harm that would be done by publishing such statements. Such conduct to my mind would amount to recklessness which his organisation has to bear the brunt of. The affidavit of the Chief Editor (Fred Wesley) stating that it was a Sunday and that he was not at work and that he would not have seen it until it was published, is nothing but a weak excuse to absolve liability. In such a situation, to say that the article was published in good faith is unacceptable.

[45] Ironically, another newspaper in Fiji, the Fiji Sun reported the same matter relating to Dr. Sahu Khan taken from the New Zealand paper by omitting the references to the judiciary in Fiji. Both newspapers, Fiji Sun and Fiji Times had published the article in different ways and by publishing it they had endorsed what was being said in the article. This again shows that the Fiji Times, was opening itself to legal scrutiny by publishing the entirety of the article which had the effect of scandalising the administration of justice in Fiji. Therefore the argument that the article was published in good faith is unacceptable.

[46] Then the question arises as to how this position of absence of good faith relates to mens rea, if mens rea is a requirement. As discussed above, absence of good faith would infer that there was bad faith as referred to in Dhooharika, and such bad faith was seen in the form of a reckless disregard of whether the statements were contemptuous or not in the present case in the circumstances above referred to.

[47] I dealt with this matter in the above manner as there was much argument on the effect of Dooharika as having changed the position in Ahnee. However, since Dhooharika is a case from Mauritius which went up to the Privy Council and was decided in 2014 there is no binding effect of that decision in Fiji and I would rest my decision on the law that was applicable in Fiji prior to the High Court decision in this case, which was that the intention of the contemnor was not a requirement to establish liability for contempt and what was necessary was whether there was a real risk of undermining the judiciary or the administration of justice by publishing such statements. In any event, it is well established that under the common law, mens rea is not an element of the offence of contempt of Court and that is the position in Fiji.

[48] It was not the case of the Petitioners that the article written by Mr. Tai Nicholas had not been endorsed by them. They could not take that stand as the Sports Editor had given a new heading to the Article, which he stated was to attract readers in Fiji, although it was an article that appeared in a New Zealand newspaper. In that context as to whether Mr. Nicholas was in Fiji, or whether he was from Fiji, or whether his name was not a Fijian name and as to whether he had his own agenda regarding the Oceanic Football Confederation are not matters that are relevant in dealing with the liability of the contemnors in the present case. Mr. Nicholas may have been wrong, ignorant or mistaken to say it lightly in making the offending statements, but that would not absolve the liability of the contemnors if they had without proper scrutiny published his statements which were contemptuous.

[49] Petitioners Counsel also argued that the principle of editorial responsibility had wrongly been applied in convicting the second and third petitioners based on the argument that mens rea was an essential ingredient of the offence of contempt. It was shown earlier, that mens rea was not an essential ingredient of the offence of contempt, therefore this argument fails.

[50] However, since the question of editorial responsibility was argued with much vigour, I would discuss that aspect too for purposes of completeness. In instances where the Publisher and Editor have taken up the position that they were not aware of the publication, as in the present case, the Courts in England have held them responsible.

[51] In R v. Odhams Press Ltd [1956] 3All ER 494 at 497, Lord Goddard CJ stated:

“These cases clearly show that lack of intention or knowledge is no excuse, though it may have great bearing on the punishment which the court will inflict, and in our opinion they dispose of the argument that mens rea must be present to constitute a contempt of which the court will take cognisance and punish. The test is whether the matter complained of is calculated to interfere with the course of justice, not whether the authors and printers intended that result, just as it is no defence for the person responsible for the publication for a libel to plead that he did not know the matter was defamatory and had no intention to defame.”

[52] In Attorney General v Lingle [1995] 1 SLR 698, the Supreme Court of Singapore at p.711 held that:

“As editor he was liable for contempt of court because he was the person who exercised ultimate and overall control (R v Evening Standard Co Ltd. Ex p A-G [1954] All ER 1026 ) The editor is liable even if he had no knowledge of the publication. In R v Evening Standard, ex p DPP (1924) 40 TLR 833, Lord Hewart CJ said at p.836:

“.....nobody who knew anything of the organization and management of a newspaper office could be ignorant of the fact that the work of newspapers was very often done in circumstances of great hurry by many different minds not always fully aware of what others might be doing. The result was a composite thing, but there must be central responsibility. It was impossible to say that men occupying responsible positions should be excused because they themselves were not personally aware of what was being done.”

[53] In the same case, the Court in dealing with the position of a publisher stated at p.712,

“As publisher and chief executive, he equally bears responsibility for a publication which appears in his newspaper. He has the obligation to devise a system to avoid any contempt of court (R v Thomson Newspapers Ltd & Ors, ex p A-G [1968] 1 All ER 268.

[54] Counsel for the Petitioners argued that Lingle’s case was wrongly decided as far as the liability of a publisher was concerned on the basis that in Thomson’s case which was cited as authority in Lingle, it was Times Newspapers Ltd that was imposed a fine and not Thomson Newspapers Ltd. The case there was against Thomson Newspapers Ltd as Printer, Times Newspapers Ltd as Publisher and the Editor. Court imposed the penalty on Times Newspapers Ltd as the Publisher as being sufficient in the case, and considered it not necessary to impose any penalty on the Printer and the Editor. Therefore the reliance on Thomson’s case in Lingle was correct.

[55] The learned High Court Jude referred to English authorities and also considered the New Zealand case of Solicitor General v Radio Avon Ltd [1978] 1 NZLR 225. In the Radio Avon case the Court discussed whether or not strict editorial liability that applied to newspapers would apply to broadcasting due to the difficulty in deciding where central responsibility lay in broadcasting, which therefore accepted that there was strict editorial liability regarding newspaper publishers and editors. The Petitioners citing Radio Avon argued that the position discussed there regarding broadcasting should apply to the present case. That position is clearly distinguishable from the present case as it is regarding the liability of a publisher and editor of a newspaper and not regarding broadcasting. Radio Avon case clearly confirmed the position of strict editorial liability regarding newspaper publishers and editors. The High Court in convicting the 2^nd and 3^rd Petitioners applied the English Common Law principles, which the Court of Appeal affirmed.

[56] In view of this position the judgment of the High Court and the Court of Appeal regarding the conviction of the 2^nd and 3^rd Respondents cannot be faulted.

[57] The other issues raised by the Petitioners related to the sentences imposed. The learned High Court Judge exercised his discretion in imposing the sentences on the Petitioners and considering the seriousness of the contempt, the sentences cannot be said to be unreasonable. This is so specially because this was the second occasion where the Fiji Times was involved in publishing a contemptuous statement. In those circumstances there is no merit in those grounds of appeal regarding sentence. Further, penalty should act as a deterrent to newspapers publishers and editors when publishing statements, specially regarding matters relating to the judiciary and the administration of justice for which the public has a high regard and respect.

Concluding Remarks

[58] It would be relevant to state that the Petitioners had changed their stance that they took up before the High Court when the appeal came up before the High Court. Before the High Court they accepted the decision in Ahnee’s case and the other authorities which had decided that mens rea was not an ingredient in the offence of contempt. The Petitioners maintained that the statements appearing in the newspapers did not amount to contempt as there was no real risk of undermining the court or the administration of justice.

[59] Before the Court of Appeal the Petitioners relying on their interpretation of Dhooharika argued that mens rea was an ingredient of the offence of contempt and that Dhooharika had resiled from the position in Ahnee. The Court of Appeal however did not accept that position.

[60] Before this Court when arguing the appeal, Counsel for the Petitioners stated that the publication of the statements was not a serious contempt, that it appeared in page 30 of the newspaper, in the sports section and not in a prominent page like the front page or the first few pages or the back page. He further submitted that, it was a Sunday when both the Publisher and the Chief Editor were not at work, that the Sports Editor was looking for material to complete the pages and so on. He also submitted that the publication had occurred inadvertently. Obviously, Counsel was trying to play down the seriousness of the charge of contempt which was in fact, an indirect admission that the statements were contemptuous as there are no degrees of contempt like serious or mild or not so serious.

[61] The High Court judgment cannot be faulted on the basis of the interpretation given by the Petitioners in Dhooharika as, that judgment of the Privy Council had not been pronounced when the High Court gave its judgment. In fact the High Court applied the law that was applicable in Fiji at the time of the commission of the offence and adopted the decision in Ahnee as that decision too was in line with the law that was applied in Fiji. On that basis, the fact that the Court of Appeal affirmed the judgment of the High Court cannot be faulted.

[62] Even if it is argued that the Courts can develop the Common Law and therefore Dhooharika’s case should be made use of in Fiji, that case being a Privy Council case is not binding as far as Fiji is concerned and is only of persuasive value. Further, in my view Dhooharika did not set down the proposition that mens rea is an ingredient in the offence of contempt, it only elaborated on the concept of good faith which was extended to mean lack of bad faith, being a possible defence where appropriate. I would rely on the law that was being followed in Fiji until the judgment in the High Court was delivered and refrain from applying the extended interpretation given to Dhooharika.

[63] A further matter that would be relevant to set out is the fact that the Petitioners, either in the High Court or the Court of Appeal or before us did not take up the position that the statements were not endorsed by them. They always took up the position that the statements in question were not contemptuous. In Dhooharika the defence taken up was different in that the newspaper merely reported the views expressed in a report. The appeal was successful on the basis that the impugned statements were merely reported in the newspaper and that there was no endorsement of the statements by the newspaper. This was not the position of the Petitioners in the present case.

[64] I would echo the views expressed in Singapore as being relevant to Fiji being a small country like Singapore. In Attorney-General v Dhee Soon Juan [2006] 2 SLR 650 (at paragraph 25) the Supreme Court states that:

“Conditions unique to Singapore necessitate that we deal more firmly with attacks on the integrity and impartiality of our courts. To begin with, the geographical size of Singapore renders its courts more susceptible to unjustified attacks.”

[65] In Dhee Soon Juan (supra) at paragraph 27 The Supreme Court went on to state:

“As rightly pointed out by Yon Pung How CJ in Re Tan Khee Eng John [1997] 3 SLR 382 at [13 – [14]:

“The power to punish for contempt of court allows a court to deal with conduct which would adversely affect the administration of justice. Clearly, courts in different jurisdictions may hold different ideas about the principles to be adhered to in their administration of justice, and correspondingly about the sort of conduct which may be inimical to the effective administration of justice. ... ...

... I do not think it would be useful or practicable in this case to adopt blindly the attitude evinced by the English courts. We must ask ourselves what is important to us here in Singapore.” [Emphasis added]

Conclusion

[66] As this appeal involved important questions of law I would grant leave but as far as the appeal is concerned which I have considered, I would dismiss the appeal with costs fixed at $5000 to be paid together by the Petitioners to the Respondent.
Keith J

[67] Introduction

“Scandalising the Court is undoubtedly the most controversial area of common law contempt. Although not prosecuted in England since the 1930s, there have been regular and recent convictions in Australia, New Zealand, Hong Kong, and Singapore, while a case was very recently brought in Scotland. In the United States, in contrast, it long ago fell foul of the 1^st Amendment and is dismissed as ‘the English foolishness’; in Canada, it also appears to be now considered an unconstitutional restriction on freedom of expression.”

(Borrie and Lowe: The Law of Contempt, 4^th ed, 2012, para 11.2)

[68] The offence of scandalising the court was abolished in England in 2013, but in the present case, it is accepted that the offence still exists in Fiji. The principal legal issue which this appeal raises relates to what the ingredients of the offence are, given that the offence has not been underpinned in Fiji by statute, and its ambit is governed by the principles of the common law.

[69] The case relates to an article which appeared in the 7 November 2011 issue of The Fiji Times. Proceedings for contempt were brought by the Attorney-General against the proprietor of The Fiji Times (Fiji Times Ltd), the general manager of The Fiji Times (Brian O’Flaherty) who was also referred to as its publisher, and its editor-in-chief (Fred Wesley). All three were found guilty of contempt by Calanchini J in the High Court. He sentenced them as follows:

• Fiji Times Ltd was fined $300,000.00
• Mr O’Flaherty was fined $10,000.00
• Mr Wesley was sentenced to 6 months’ imprisonment suspended for 2 years.

They were also each ordered to pay $2,000.00 towards the Attorney-General’s costs. They appealed to the Court of Appeal against both their conviction and sentence. Apart from reducing Mr O’Flaherty’s fine to $7,500.00, the Court of Appeal dismissed their appeal. They now apply for special leave to appeal against their conviction and sentence to the Supreme Court.

The Facts

The Fiji Times

[70] The Fiji Times is Fiji’s oldest newspaper. It is in the English language. It has been published for almost 150 years. It is a significant part of national life in Fiji. It is one of the newspapers published by Fiji Times Ltd (“FTL”), which for many years was owned by Australian media interests. In September 2010, ownership of the company changed, and it is now owned by Fijian business interests.

Mr O’Flaherty

[71] Mr O’Flaherty comes from South Africa. He has many years’ experience in the newspaper industry. He worked as the general manager of The Fiji Times in the 1990s, and became its general manager again in December 2010. In that capacity, he was not on the editorial side of the business. His responsibilities related to management and the commercial side of the operation, other than was necessary for the editorial section of the newspaper to function effectively as part of the organisation. Whether the fact that he was also called the publisher of The Fiji Times meant that he had a wider role than he claimed was a moot point, not really resolved by the findings of the courts below. However his post is to be characterised, though, he resigned from that post about a month before the publication of the article in question, and was serving out his notice period at the time.

Mr Wesley

[72] Mr Wesley has worked as a journalist for many years. He has been with The Fiji Times since 2004 and has held a number of senior editorial posts. He became editor-in-chief in October 2010, and in that post he was responsible not just for The Fiji Times but for FTL’s other publications as well. However, he performed the editorial function for The Fiji Times only. He had what he described as only “general direction” over FTL’s other publications.
The background to the publication

[73] The background to the publication appears from the affidavit of the newspaper’s sports editor, Manoj Kumar, and the reporter who found the story. The Attorney-General did not challenge their account. On the afternoon of Sunday 6 November 2011, Mr Kumar realised that he needed another reporter to ensure that there were sufficient stories for the following day’s edition. He called a sports reporter who was not due to work that day, and asked him to come to work. When the reporter arrived, Mr Kumar told him that he needed three or four stories urgently. One of the stories the reporter found on browsing the internet was an article in The Sunday Star Times, a newspaper in New Zealand. He only read the first three paragraphs of the article, but he realised that it was of local interest and he told Mr Kumar about it. He said that it was about the former president of the Fiji Football Association, Dr Sahu Khan. Mr Kumar told him to put the story into the sports folder in the newspaper’s computer system, which the reporter did.

[74] Mr Kumar looked at the story. He only read the first six paragraphs and skimmed through the rest of the article because he was pressed for time. They were behind their schedule for an adequate number of sports stories. He saw where it had previously been published, and that it was about an investigation by the Federation Internationale de Football Association, known throughout the world as FIFA, into Dr Khan in connection with his position as the deputy chairman of the disciplinary committee of the Oceania Football Confederation (“the OFC”), given that he had recently been “disbarred” by the Independent Legal Services Commission in Fiji from practising as a lawyer.

[75] Mr Kumar decided that the article should be published, save that the heading should be changed to give the article a local angle. The Sunday Star Times’ headline had been “Fifa probe as controversy whacks Oceania again”. Mr Khan changed it to “FIFA probes Doc” in bold typeface on one line, followed by a sub-heading on the next line in less bold typeface “Former Fiji FA president Sahu Khan under scrutiny”. He assumed that the story, which was to be published verbatim, had been checked in New Zealand both for its accuracy and its compliance with legal requirements. The article appeared in the most prominent position on page 30 of The Fiji Times on the following day in the newspaper’s Sports Section. The journalist and the newspaper whose names appeared in the byline were Simon Plumb and The Sunday Star Times. I assume that Mr Plumb was one of The Sunday Star Times’ journalists. Not that that matters. All that matters for present purposes is that he was not a journalist with The Fiji Times.

The article

[76] The article read:

“FIFA is probing the deputy chairman of its disciplinary committee and treasurer of the Oceania Football Confederation, Dr Muhammad Shamsud-Dean Sahu Khan.

Almost a year since former OFC boss and Fifa vice-president Reynald Temarii – the target of a World Cup vote-rigging sting by Britain’s Sunday Times – controversy has returned to the Auckland-based confederation.

Former lawyer Sahu Khan has been disbarred by the Independent Legal Services Commission in Fiji and banned from holding a practising certificate for 10 years.

He is appealing the decision.

Article 58.1 of Fifa’s Statutes declares senior disciplinary committee members must possess legal credentials: ‘The Disciplinary Committee shall consist of a chairman, deputy chairman and the number of members deemed necessary. The chairman and the deputy chairman shall have legal qualifications.’

In response to Sunday Star-Times inquiries, Fifa stopped short of declaring a formal investigation, but over two emails sent to this newspaper, said it is ‘awaiting further information’ and ‘will look at the situation’ concerning Sahu Khan.

‘As was announced at the last executive committee meeting on 21 October, Fifa is currently reviewing the lists of all its standing committees. This process will be conducted over the coming weeks and presented to the Executive Committee on 16-17 December,’ said a Fifa statement.

‘In the meantime, Fifa will look at the situation of Dr Sahu Khan based on the information and the facts collected.’

In February Sahu Khan, a former Fijian Football Association president of almost 25 years, was elected OFC treasurer by the executive committee.

Tai Nicholas, OFC general secretary, denied Sahu Khan’s status as an OFC executive committee member was in any way compromised by his professional position.

Nicholas, who said he had not discussed the situation with Fifa, said until all appeal options are exhausted, Sahu Khan will be considered innocent by both Fifa and the OFC.

‘He (Sahu Khan) has communicated the problems that he’s been having regarding the court proceedings in Fiji,’ Nicholas told the Star-Times.

‘Sahu Khan is still a member of the disciplinary committee. He only went to a disciplinary (meeting) two weeks ago and Fifa did nothing or said nothing.

‘Technically it’s not (a breach of Fifa statutes) as he’s still got a legal qualification, he’s just debarred from Fiji. I understand he’s going to be admitted to the New Zealand Law Society, for example, or the Australian Law Society.

‘Obviously there’s an appeal. If we’re honest, there’s debate around the coup regime, who are ostracising lawyers who are involved with the constitutional reforms.

‘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.

‘I think it makes sense to see out the appeal. I think we’ve got to give the benefit of the doubt until the time his appeal is exhausted.’

The Star-Times lodged a request with Nicholas to seek direct comment from Sahu Khan, but did not hear back.

Nicholas confirmed Fifa legal committee member and OFC legal consultant,

Shabina Sahu Khan, is a direct relative of Dr Sahu Khan.” (Emphasis supplied)

The italicised words are the ones which the Attorney-General contended amounted to contempt of court.

The publication of the story elsewhere

[77] The Fiji Times was not the only newspaper in Fiji to have picked up the story. So too had The Fiji Sun. It reproduced verbatim the article in The Sunday Star Times in the Sports Section of its issue of 7 November 2011 under the heading “Dr Sahu Khan on FIFA radar”. It also gave The Sunday Star Times as its source, though unlike The Fiji Times it included a photograph of Dr Khan as well. But crucially it did not include the words complained of by the Attorney-General, nor the previous sentence beginning “If we’re honest ...”

The position of Mr O’Flaherty and Mr Wesley

[78] Neither Mr O’Flaherty nor Mr Wesley had been aware of the story before it was published or the decision to reproduce the words attributed by The Sunday Star Times to Mr Nicholas in their entirety. Mr O’Flaherty had not been at work on the Sunday, and he would not have been shown a copy of the article even if he had been. The same is true of Mr Wesley. He had not been on duty that weekend. It was his deputy who had been. Even if he had been on duty on the Sunday, it is unlikely that he would have read the article before it was published.

The meaning of the words complained of

The test to be applied

[79] A civilized community cannot survive without effective machinery for the enforcement of its laws. The task of enforcing those laws falls on the courts and on the judges who preside over them. It has always been recognised as vital to the rule of law for respect for the judiciary to be maintained and for their dignity to be upheld. If it were otherwise, public confidence in the administration of justice would be undermined, and the law itself would fall into disrepute. That is the rationale for the branch of the law of contempt known as “scandalising the court”. As Richmond P said in delivering the judgment of the Court of Appeal in New Zealand in Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at p 230:

“The justification for this branch of the law of contempt is that it is contrary to the public interest that public confidence in the administration of justice should be undermined.”

[80] However, the offence of scandalising the court does not exist simply to protect the judiciary. It is not intended to vindicate the judge as a person. It exists to maintain public confidence in the courts and the judges. Accordingly, the law distinguishes between criticism and scurrilous abuse of a judge. That is why legitimate criticism, however trenchantly expressed, is always permissible, but scurrilous abuse of a judge – in other words, a personal attack on a judge in abusive language which vilifies the judge rather than simply points out his errors – is not. The reason why such abuse constitutes a contempt of court is because of the effect it may have on public confidence in the administration of justice.

[81] Since this branch of the law is all about how the public sees those responsible for the administration of justice, it is not what the speaker or writer meant by the words used that matters. The test for what the words complained of meant has to be what “any fair minded and reasonable man would understand” the words to mean. That is what the Court of Appeal said in Vijaya Parmanandam v Attorney-General (1972) 18 FLR 90. Both Calanchini J and the Court of Appeal adopted that test in the present case, and they were correct to do so, though to talk these days about the “reasonable man” is both a little old-fashioned as well as assuming that the views of women are of little consequence. I prefer to say that the test is what the fair-minded and sensible observer would have thought had been meant.

The application of that test

[82] The Court of Appeal had little doubt about the application of that test. The only substantive judgment was given by Guneratne JA. The other two judges agreed with his judgment. Guneratne JA said at [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?”

In other words, the “fair minded and reasonable” man would have thought that Mr Nicholas was saying that justice was not being administered in Fiji because there was no judiciary in place. Calanchini J had taken a different view in the High Court. Since there was a functioning judiciary in Fiji at the time the article was published, he thought that Mr Nicholas must have meant something else. So at page 11 of his judgment, Calanchini J said:

“The fair minded and reasonable person reading those words would conclude that the words must mean that those who claim to be performing judicial functions in Fiji are not in fact a judiciary at all.”

I take Calanchini J to have meant by that that the “fair minded and reasonable man” would have thought that Mr Nicholas was saying that Fiji’s judges had not been validly appointed. Indeed, there is a passage in the judgment he gave when passing sentence which suggests just that. At [17] he said:

“So why would the Respondents publish the words if it were not to challenge the very existence of a judiciary duly appointed according to law. In other words, its legitimacy.” (Emphasis supplied)

For reasons which I shall come to later, I think that it would have been more accurate for Calanchini J to have asked why Mr Nicholas would have said the words, rather than why The Fiji Times would have published them, bearing in mind that the Attorney-General’s case has never been that The Fiji Times was purporting to endorse what Mr Nicholas had said. But leaving that aside, Calanchini J’s view about what the “fair minded and reasonable man” would have thought the words meant is clear.

[83] I agree with the Court of Appeal that the words “with no judiciary there”, ie in Fiji, if taken literally, would have been understood to mean that there were no judges in place in Fiji. That had been true for a short time in Fiji’s recent turbulent constitutional history. On 10 April 2009, the day after the Court of Appeal’s seminal decision in Qarase and ors v Bainimarama and ors [2009] FJCA 67, the Revocation of Judicial Appointments Decree 2009 was promulgated. Its effect, amongst other things, was to remove all judges from their posts. Six days later, the Administration of Justice Decree 2009 was promulgated. Amongst other things, it gave the President of Fiji responsibility for the appointment of judges. The first appointment which the President made was to appoint Gates J (who had been the Acting Chief Justice of Fiji prior to 10 April 2009) as the Chief Justice of Fiji. That was on 22 May 2009. Some of the judges who had been in post prior to 10 April 2009 were re-appointed within a short time after that, and many new judges were appointed in due course. So although for a period of six weeks or so in 2009 there was no judiciary in Fiji, the fact is that this had long since ceased to be the position by November 2011 when the article in question was published, and there were by then many validly-appointed judges in post.

[84] The fact that there were, and had for a long time been, validly-appointed judges in post presiding over the courts would have been known to any fair-minded and sensible reader of The Fiji Times on 7 November 2011. They would have read about the cases which were reported in the press and occasionally mentioned in television broadcasts. They would have realised that Mr Nicholas’ words, if taken literally, were nonsense. Indeed, they might have thought that they were such nonsense that he must have meant something else. What might that have been? Perhaps they would have thought that what he had really meant was not that there were no judges in Fiji, but that there were no judges in Fiji worthy to be called judges, because, for example, the judges who were in post were either incompetent or not independent or both. Or perhaps they would have thought what Calanchini J concluded they would have thought, namely that such judges as there were in Fiji had not been validly appointed.

[85] I might have concluded that the first of these possibilities had been what a fair-minded and sensible reader would have thought Mr Nicholas had meant were it not for what Mr Nicholas went on to say. That was that the Independent Legal Services Commission which had ordered Dr Khan to be “disbarred” was not a court, and that it had been presided over in Dr Khan’s case by an Australian judge. The only reason for Mr Nicholas to have referred to the nationality of the judge who had presided over Dr Khan’s case was to reinforce the point that there were either no Fijian judges in post or none who had been validly appointed. And the only reason for Mr Nicholas to have said that the Commission was not a court was to reinforce the point that there were no judges in Fiji, or at least no validly-appointed ones, since, if the Commission had been a court, you would have expected it to be presided over by a judge. So although what Mr Nicholas was saying about there being no, or no validly-appointed, judges in post was nonsense, it was what he also said which in my opinion would have led the fair-minded and sensible reader to think that that was what Mr Nicholas had meant even though it was nonsense.

[86] Having said that, there are a couple of passages on this topic in Guneratne JA’s judgment which I ought to mention specifically. At [52] when referring to Mr Nicholas’ comments about an Australian judge having presided over Dr Khan’s disciplinary proceedings and about the Commission not being a court per se, he said that the remarks were “scornful, spiteful and derogatory if not insulting”. And at [130] he called the remarks “belittling” of a “quasi judicial officer”. I do not think that fair-minded and sensible people would have read Mr Nicholas’ remarks in that way. They would not have thought that the Australian judge had been the subject of a personal attack by Mr Nicholas, or that the remarks had been offensive of him. What they would have thought Mr Nicholas meant was that (a) the fact that Dr Khan’s disciplinary proceedings had been presided over by a judge did not mean that there were judges – and validly-appointed judges at that – in post in Fiji since the disciplinary proceedings had not taken place in a court, and (b) the fact that that the disciplinary proceedings had been presided over by an Australian judge confirmed that there were no, or no validly-appointed, Fijian judges in place.

The risk of confidence in the administration of justice being undermined

[87] Most jurisdictions (Canada being a notable exception in R v Kopyto (1988) 47 DLR (4^th) 213) require there to have been a real risk, and not just a remote possibility, that public confidence in the administration of justice will be undermined: see, for example, Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at p 234 (Richmond P) in New Zealand, Ahnee v Director of Public Prosecutions [1999] UKPC 11; [1999] 2 WLR 1305 at p 1314B (Lord Steyn) in the Privy Council on appeal from Mauritius, and Secretary for Justice v The Oriental Press Group Ltd and ors [1998] 2 HKC 627 at [54] (Chan CJHC and Keith J) in Hong Kong. In Kopyto, the court went further and held that in addition to the risk having to be a real one, it had to be substantial and immediate as well. I still prefer the less rigorous test, though as we shall see, my view about the proper outcome of this appeal does not depend on which of these tests should be the appropriate one.

[88] In this context, the view which you take about what the words complained of would have meant to the fair-minded and sensible observer becomes critical. The answer to the question whether there was a real risk of public confidence in the administration of justice being undermined could well be different if Mr Nicholas’ words had been understood to mean that there were no judges in Fiji worthy to be called judges rather than if they had been understood to mean simply that there were no, or no validly-appointed, judges in place in Fiji. If I had concluded that Mr Nicholas’ words had been understood to mean that there were no judges in Fiji worthy to be called judges, I might have agreed with Calanchini J (page 11 of his judgment) that

“ ... publication of the words represents a real risk of undermining the confidence of the people in the judiciary and in the judgments of the Courts since they have the effect of lowering the authority of the Court and its judiciary. The words generate misgivings as to integrity, ability and impartiality which are qualities fundamental to the judicial office and the rule of law.”

But different considerations apply when the question is whether a real risk of public confidence in the administration of justice being undermined arose as a result of Mr Nicholas’ words having been understood to mean that there were no, or no validly-appointed, judges in place in Fiji.

[89] The Court of Appeal did not discuss whether there had been a real risk that public confidence in the administration of justice would be undermined by Mr Nicholas’ words, on the footing of how it thought those words would have been understood by the “fair minded and reasonable man”. It assumed that there had been such a risk. It is to that assumption that I now turn.

[90] Two things would, or at any rate should, have been apparent to the readers of the article. First, they would have thought that Mr Nicholas was not himself from Fiji:

• The article referred to him as the general secretary of the OFC, so he could have come from any of the states who were members of the OFC.
• His name was not a Fijian one.
• He could not have been in Fiji when he spoke to the journalist: otherwise he would have said “with no judiciary here” rather than “with no judiciary there”.
• His remarks were made to a journalist based in New Zealand.
• Readers would, I think, have thought it unlikely that a Fijian would have said something so unpatriotic and so obviously wrong.

Secondly, Mr Nicholas had his own agenda. He was defending the fact that Dr Khan was still the deputy chairman of the OFC’s disciplinary committee, even though he had had his practising certificate as a legal practitioner suspended for 10 years. Readers of the article would therefore have realized that Mr Nicholas could well have said what had been attributed to him about the judiciary because he wished to play down the impact of Dr Khan’s suspension.

[91] In those circumstances, what would the fair-minded and sensible readers of the article have thought? In my opinion, they would have known that the claim that there were no, or no validly-appointed, judges in post was nonsense, and they would have thought that Mr Nicholas’ words were the comments of someone who had heard of the revocation of judicial posts at some time in Fiji’s past but who was not familiar with what was going on in Fiji at the time of the article and had no idea that there were judges back in post in Fiji. Not only that. The fair-minded and sensible readers of the article would also have thought that these were the comments of someone who was doing his best to lessen the impact of Mr Khan’s suspension on his continuing to be the deputy chairman of the OFC’s disciplinary committee. In other words, they would, in my view, have been likely to treat what was being attributed to Mr Nicholas as the ill-informed remarks of a man who had an axe to grind. In those circumstances, it is unlikely, I think, that they would have taken what Mr Nicholas had said seriously when he had his own interests to serve. In the light of that, was it really open to the lower courts to conclude that the fair-minded and sensible reader of the article would have thought less of the judiciary? I think not: in view of the context in which the words complained of were used, it cannot sensibly be said that there was a real risk that public confidence in the administration of justice in Fiji would be undermined by what Mr Nicholas had said. A remote and fanciful risk possibly, but not a real one.

[92] A real risk of public confidence in the administration of justice being undermined by the words complained of is a necessary ingredient of the offence of scandalising the court. That has to be proved beyond reasonable doubt. For the reasons I have given, I do not think that it was reasonably open to the lower courts to be sure of that. All the more so, if the proper test is whether there is, not just a real risk that public confidence in the administration of justice will be undermined, but that this risk has to substantial and immediate as well.

[93] In reaching this conclusion, I have not overlooked the comment made by Lord Steyn in Ahnee at p 1314A that “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”, so that the “need for the offence of scandalising the court on a small island is greater”. Lord Steyn did not say why, but he was presumably concerned that judges in a small country might be more likely to be influenced by uninformed attacks on their independence or competence than their counterparts in larger countries which are more likely to have more developed judicial systems.

[94] I do not regard what Lord Steyn said in Ahnee as helpful for present purposes. I say that for two reasons. First, the Privy Council has gone back on what he said. In Dhooharika v Director of Public Prosecutions [2014] 3 WLR 1081, another appeal from Mauritius, Lord Clarke said at [41] that “the Board would no longer distinguish between small islands and larger territories merely on grounds of size”, though “local conditions [would still be] relevant to the continued existence of the offence”. I agree with that approach. Secondly, and more importantly, Lord Steyn’s comments were made, as Lord Clarke recognised, in the context of determining whether the offence of scandalising the court still existed in Mauritius. That is to be contrasted with the present case where the question is whether the relatively small size of Fiji when compared with other countries can or should be taken into account when deciding whether there was a real risk of public confidence in the administration of justice being undermined by the words said to constitute the offence. That focuses, not on whether judges in Fiji are more likely to be influenced by adverse comments about them, but on whether members of the public are more likely to think any the less of judges in Fiji as a result of such comments than what members of the public in more developed countries might think about their judges. I do not believe that to be the case, and in any event it has not been suggested that there are “local conditions” in Fiji which might support such a view.

[95] My conclusion about the risk posed by the article to public confidence in the administration of justice makes it unnecessary for me to consider the other issues which the appeal has raised. However, since Chandra and Chitrasiri JJ take a different view about the risk the article posed, I must briefly address the other critical issue on which outcome of the appeal turns.

The necessary mental element

[96] There is no doubt that, to be convicted of the offence of scandalising the court, the defendant must have intended to do the acts which constitute the contempt. In the present case, that is not an issue, at least so far as The Fiji Times is concerned. Since The Fiji Times intended to publish the article about Dr Khan, and since that was the article in which the alleged contempt was included, The Fiji Times must be regarded as having intended to do the acts which constituted the contempt. But does the offence require mens rea in relation to the consequences of those acts? In other words, does the offence require proof of an intention to undermine public confidence in the administration of justice? It is argued on behalf of the Attorney-General that it does not. The petitioners’ legal team argues that it does.

[97] Calanchini J thought that it did not. As he said on page 11 of his judgment,

“I do accept that it may not have been the intention of the Respondents to undermine public confidence in the administration of justice. However the only intention that is relevant is the intention to publish the story.”

Guneratne JA appears to have said much the same thing. In the passage in his judgment under the heading “The defence of absence of Mens Rea”, he expressly approved at [133] Calanchini J’s thinking and reasoning on pages 10-13 of Calanchini J’s judgment, having previously said at [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.”

Indeed, the fact that Guneratne JA thought that the appeal had to be dismissed despite Calanchini J’s express finding that an intention to undermine public confidence in the administration of justice had not been proved suggests that he too did not think that proof of that was necessary.

[98] However, it is possible that Guneratne JA thought otherwise. At [134] he added:

“If liability is to be hinged to ‘the requirement of proof of intent’ ..., [that] would be [a] matter ... for the Fijian legislature based on policy which is not a matter for us to decide on ...”

Similarly, having posed at [168(i)] the following question,

“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?”

Guneratne JA said at [172] that this was one of the questions “to which this Court cannot provide answers being questions for the legislature to address”. Indeed, the argument in the Court of Appeal turned on what the Privy Council had decided in Dhoohariha, but Guneratne JA did not analyse that the part of the judgment in Dhooharika where the mens rea of the offence of scandalising the court was discussed. In the circumstances, it looks as if Guneratne JA and the other members of the court who agreed with his judgment may simply have thought that until Fiji’s legislature considered the matter, the view reached by Calanchini J should not be departed from.

[99] In the High Court, the petitioners’ legal team accepted that an intention to undermine public confidence in the administration of justice did not have to be proved. In my view, they were right to do so. In those jurisdictions in which the law relating to the offence of scandalising the court was governed by the common law, the view had always been taken (with one notable exception) that such an intention was not required: see, for example, the cases in England and Wales of R v The Editor of The New Statesman ex p The Director of Public Prosecutions (1928) 44 TLR 301 and R v Odhams Press Ltd ex p The Attorney-General [1956] 3 All ER 494 at p 497F-G, the case in Australia of The Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887 at p 911F, the Radio Avon case in New Zealand at pp 232 and 233, the Oriental Press Group case in Hong Kong at [58] and the decision of the Privy Council in Ahnee at p 1315C-D. The one exception has been the case in South Africa of S v Van Niekerk 1970 (3) SA 655 (T) at p 657, though that has never been followed elsewhere so far as I can tell.

[100] By the time the case got to the Court of Appeal, the Petitioners’ stance had changed. That was because the Privy Council had by then given judgment in Dhooharika. The facts of that case need to be borne in mind in order to understand the context in which the Privy Council addressed the issue of mens rea. The editor of a newspaper in Mauritius interviewed DH, a disbarred barrister and former member of the National Assembly who was a director of a company which had been involved in litigation in which at times the Chief Justice had been the judge. In the interview DH accused the Chief Justice of misconduct and demanded an investigation into what he claimed was the Chief Justice’s abuse of his authority. The newspaper published an extensive account of this interview, setting out DH’s allegations, together with a photograph of the Chief Justice. It also published an article and an editorial based on the interview. The editorial conceded that the newspaper was not in a position to judge whether the Chief Justice had been guilty of misconduct, but it said that the allegation should be judged by a tribunal, and it concluded that “in alleged cases of misconduct, it is incumbent on the accused judge to defend his integrity by agreeing to appear before a competent court named by the President of the Republic”. The editor was convicted by the Supreme Court of Mauritius of contempt, the offence being that of scandalising the court. One of his grounds of appeal in his appeal to the Privy Council was that the prosecution had to prove that he had intended to undermine public confidence in the administration of justice, or had at least been reckless as to whether the publication of the articles in question would have that result.

[101] The judgment of the Privy Council was given by Lord Clarke. He dealt with this issue at [43]-[49]. At [44] and [45] he referred to the many cases in which courts had concluded that an intention to undermine public confidence in the administration of justice did not have to be proved. At [46] he noted that that view might have to be revised in the light of a series of three cases in England and Wales in the 1980s and 1990s. And at [47] he said that the editors of a respected textbook on the law of contempt had expressed the view (writing as they then were before the offence of scandalising the court had been abolished in England and Wales) “that in England and Wales it would probably be necessary to prove an intention to interfere with the administration of justice”. He added that they had relied on what Lord Atkin had said in Ambard v The Attorney-General for Trinidad and Tobago [1936] AC 322 at p 335:

“Provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.”

[102] With that preamble, Lord Clarke went on to say at [48]:

“The Board agrees. As Lord Steyn made clear in Ahnee’s case, if the defendant acts in good faith, he is not liable. Since the court is here concerned with a criminal offence, the burden must be on the prosecution to establish the relevant facts beyond reasonable doubt. There can be no legal burden on the defendant. Thus, at any rate once the defendant asserts that he acted in good faith, the prosecution must establish that he acted in bad faith. If the prosecution establish that he either intended to undermine public confidence in the administration of justice or was subjectively reckless as to whether he did or not, that would in the opinion of the Board, be evidence of bad faith. It is perhaps for this reason that Lord Steyn expressed the view that the defendant had to act otherwise than in good faith, that is in bad faith, and that there was no further element of mens rea required.”

[103] As I have said, the Court of Appeal did not discuss these passages, but two points should be made about them. First, the cases which have held that an intention to undermine public confidence in the administration of justice need not be proved were all decided in jurisdictions in which the law of contempt was governed by the common law. That is to be contrasted with the three cases decided in England and Wales in the 1980s and 1990s. They were all decided after the law of contempt had been underpinned by statute – in the case of England and Wales, by the Contempt of Court Act 1981. So those three cases are not a reliable guide as to what the requirements of the offence of scandalising the judiciary is under the common law. Secondly, what Lord Steyn had said in Ahnee about bad faith related to the right of people to comment on matters of public concern. He accepted that there did not have to be an intention to undermine public confidence in the administration of justice for the offence of scandalising the judiciary to be proved. But it would nevertheless be a defence to such a charge if the article complained of amounted to criticism of the judiciary in good faith: see the passages at pp 1314B-C and 1315C-D.

[104] This, then, was what the Privy Council in Dhoorarika was agreeing with. It was agreeing that under the common law an intention to undermine public confidence in the administration of justice did not have to be proved. Instead what had to be proved – at least in a case in which the defendant was asserting a right to comment on a matter of public concern – was either that the defendant had not been acting in good faith, or that he had been reckless about the risk which the article complained of posed to public confidence in the administration of justice being undermined. That did not mean that the presence or absence of an intention to undermine public confidence in the administration of justice was no longer relevant in such a case. The presence of such an intention was evidence from which bad faith might be inferred, whereas its absence was evidence from which a lack of bad faith might be inferred.

[105] The argument advanced on behalf of the Attorney-General was that the Privy Council must be regarded as having limited the requirement of bad faith to those cases in which the defendant is asserting the right to comment on a matter of public concern, and the present case was not such a case. I agree that if you simply look at what Lord Clarke said at [48], there may be some support for that contention. But here Mr Dhooharika’s particular defence becomes critical. His defence was that he was simply reporting the views of DH. At no stage did he adopt DH’s views as his own or as the views of the newspaper. Indeed, the editorial showed that he was not equipped to adjudicate on them. That reflects the position of the petitioners in the present case. By publishing the article about Dr Khan which contained Mr Nicholas’s comments about the legal system in Fiji, The Fiji Times was doing no more than reporting what Mr Nicholas had said. There was no suggestion by Ms Mani for the Attorney-General that by reporting what Mr Nicholas had said The Fiji Times was in any way endorsing his views.

[106] The Privy Council concluded at [54] and [55] that Mr Dhooharika had not acted in bad faith at any time, and that was one of the reasons why his conviction for contempt of court was quashed. There are two possibilities. One is that the Privy Council did not think that the requirement of bad faith should be limited to cases in which the defendant was asserting the right to comment on matters of public concern. The other is that it thought that Mr Dhooharika’s case was such a case. The crucial point is that whichever of those two possibilities is the correct one, his case was in all relevant respects indistinguishable from the present one. If the Privy Council thought that Mr Dhooharika’s conviction had to be quashed, they would inevitably have come to the same conclusion in respect of the petitioners in the present case.

[107] The only remaining question is whether the requirement of bad faith which the Privy Council identified in Dhooharika should be part of the law of Fiji. Ms Mani did not argue that it should not be. As I have said, she only argued that it was limited to cases in which the defendant was asserting the right to comment on a matter of public concern. In my opinion, the requirement of bad faith should be part of the law of Fiji – at any rate in a case such as the present where the words complained were said, not by a reporter or journalist, but by someone else and where the newspaper reproduced those words simply as part of its mission to report the news. If it had a particular agenda in reproducing words which could well undermine public confidence in the administration of justice, that would be a different matter altogether, and it would almost certainly lead to a finding of bad faith. However, since there was no suggestion that the Fiji Times was endorsing Mr Nicholas’ views, this was not a case in which a finding of bad faith could have been made. I would have allowed the petitioners’ appeal on this ground as well.

[108] In the interests of completeness, I should add that Ms Mani contended that if we were minded to depart from established principles of the common law, the appropriate course for us to take was to decline to do so, but instead to leave it to the legislature to decide what the ingredients of this form of contempt should be. In the event, the view I have formed does not involve any departure from established principles of the common law. In my opinion, it is still the case that an intention to undermine public confidence in the administration of justice does not need to be proved. It is simply that, as hinted at in previous cases, bad faith has now expressly been held to be an ingredient of the offence – at least in cases like the present one. Although it is always open to the legislature to legislate in this area, there is no basis for saying that it is inappropriate for the common law in this area to continue to be developed by the courts

The other issues on the appeal

[109] There are other issues which the appeal has raised. They include the liability of Mr O’Flaherty and Mr Wesley. Should they have been held liable for contempt when they had not known about the article until after it had been published? In Mr O’Flaherty’s case, should he have been held liable for contempt if his responsibilities had been limited to management and the commercial side of the operation? And were the sentences passed on the three petitioners ones which could reasonably have been imposed on them? However, in view of the conclusions I have reached on the two principal issues on which the liability of all the petitioners depended, it has been not been necessary for me to express my own view on these additional questions. However, my disinclination to articulate where I stand on those issues should not be taken as amounting to my approval of the approach of the lower courts to them.

[110] What I can say is this. On any view, the real villain of the piece was Mr Nicholas. He should not have told the journalist on The Sunday Star Times what he did. Some people might criticise The Fiji Times for publishing what he said, but for the reasons I have endeavoured to give, I believe that no offence was committed by them. We were told at the hearing that Mr Nicholas himself had been prosecuted for contempt and had pleaded guilty. The irony is that he, or at any rate his lawyers, must have thought that there was a real risk of the administration of justice being undermined by what he said. My conclusion about the outcome of this appeal means, of course, that I have not let that fact influence my approach to this appeal, but many people would say, I think, that if anyone had to be convicted, his conviction met the justice of the case.

Conclusion

[111] For these reasons, I would have given each of the petitioners special leave to appeal. That is because the case raised a far-reaching question of law, namely whether an intention to undermine confidence in the administration of justice is required for the offence of scandalising the court. In accordance with the Supreme Court’s usual practice, I would have treated the hearing of the petition for special leave as the hearing of the appeal. I would have allowed the appeal, I would have quashed the finding of guilt made against all three petitioners, and I would have set aside the sentences imposed on each of them and the orders for costs made against each of them. Finally, I would have ordered the Attorney-General to pay $5,000.00 to each of the petitioners towards their legal costs both here and below. However, since Chandra and Chitrasiri JJ take a different view about the outcome of the appeal, the orders of the court have to be the ones which they propose.

Kankani J

[112] I had the opportunity of reading the draft judgment of Chandra J. Accordingly, I agree with the reasoning and conclusions.

Orders of Court:

1. The application for leave to appeal is allowed.
2. The appeal of the Petitioner against the Court of Appeal judgment is dismissed.
3. The Petitioners shall jointly and severally pay a sum of $5000 as costs to the Respondent.

Hon. Mr. Justice Suresh Chandra

JUDGE OF THE SUPREME COURT

Hon. Mr. Justice Brian Keith

JUDGE OF THE SUPREME COURT

Hon. Mr. Justice Chitrasiri Kankani JUDGE OF THE SUPREME COURT

Solicitors:
Munro Leys for the Petitioners
Office of the Attorney-General, Suva for the Respondent