Namoa v Attorney-General [2000] TOCA 14; CA 09 2000 (21 July 2000)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

APPEAL NO.9/00
BETWEEN

'ESAU NAMOA

First Appellant

KILISITINA VAEA

Second Appellant

CHRISTOPHER RACINE

Third Appellant

OCEANIA BROADCASTING NETWORK LTD

Fourth Appellant
AND

ATTORNEY GENERAL

Respondent

Coram:
Burchett J Tompkins J Beaumont J

Counsel:
Mr Edwards for the Appellants
Mr Kefu for the Respondent

Date of hearing: 12^th July 2000.
Date of judgment: 21^st July 2000.

JUDGMENT OF THE COURT

INTRODUCTION

This is an appeal from orders of the Supreme Court [Ward CJ] convicting each of the appellants of contempt of court. The contempt found by Ward CJ was the class of contempt known generally as criminal contempt, consisting of words or acts obstructing, or tending to obstruct or interfere with, the administration of justice [see Halsbury's Laws of England 4^th Ed. Vol. 9 at 3]. The particular kind of contempt is that known as scandalising the court. Halsbury [at 21] explains the relevant principles as follows:

"27. Scandalising the court. Any act done or writing published which is calculated to bring a court or a judge into contempt, or to lower his [or her] authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of court.

Thus scurrilous abuse of a judge or court, or attacks on the personal character of a judge, are punishable contempts. The punishment is inflicted, not for the purpose of protecting either the court as a whole or the individual judges of the court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the authority of the tribunal is undermined or impaired. In consequence, the court has regarded with particular seriousness allegations of partiality or bias on the part of a judge or a court.

On the other hand, criticism of a judge's conduct or of the conduct of a court, even if strongly worded, is not a contempt provided that the criticism is fair, temperate and made in good faith and is not directed to the personal character of a judge or to the impartiality of a judge or court."

By notice of motion dated 29 October 1999, the Attorney-General applied to the Supreme Court for orders calling upon 'Esau Namoa, Nailasikau Halatuituia, Kilisitina Vaea, Christopher Racine and Oceania Broadcasting. Network to show cause why they should not be committed, or be held liable, for contempt of the Court.

The notice of motion cited comments said to have been made by 'Esau Namoa and Nailasikau Halatuituia as panellists on a television programme "Check it Out", which was said to have been hosted by Kilisitina Vaea and broadcast at 11:00 am and 8:00 pm on 18 October 1999 by Oceania Broadcasting Network, which was said to be owned and managed by Christopher Racine.

The grounds relied upon by the Attorney-General were stated in the notice of motion relevantly as follows:

"(4) That during the television programme, 'Esau Namoa and Nailasikau Halatuituia made comments concerning the judgment delivered on 21 October 1996 by the former Chief Justice Nigel Hampton and Justice John Lewis, in the civil case PPEL -v- (1) Sarnuela Masirna, (2) TAMCO; PPEL -v- (1) Samuela Vakameilalo, (2) 'Aisake Tuiono trading as MALT, (3) TAMCO;

(5) That the comments were made to the effect that the Judges in the civil matter referred to in (4) were incompetent and ignorant in making their judgment;

(6) ...

(7) That Esau Namoa made comments to the effect that the Supreme Court should not have dealt with the civil matter referred to in (4) and that the judgment was wrong as both Judges are non-Tongans and that they have left the country and so we should not be bound by their judgment;

(8) That Esau Namoa made comments to the effect that the Supreme Court in the civil matter referred to in (4) had no right to make decisions regarding Tongan land, and the legal counsel involved should have informed the Court of this, so therefore the judgment is wrong.

(9) That the comments made were calculated to lower the authority of the Judiciary

(10) The comments were made maliciously and aimed to abuse the authority of the Judiciary;

(11) The comments undermined the public's confidence in the administration of justice."

As has been said, Ward CJ found each of the appellants guilty of contempt. In the cases of Mr Namoa and Mr Racine, fines of $1,500 and $1,000 respectively were ordered to be paid. No penalty was ordered in the case of Ms Vaea or of OBN. Mr Halatuituia was acquitted. The appellants now appeal against their convictions. Those appellants who were fined also appeal against the penalties imposed.

In order to understand the issues that arise in the appeal, it will be necessary to summarise the findings and reasons at first instance.

THE FINDINGS AND REASONS AT THE FIRST INSTANCE

His Honour's findings and reasons in finding contempt may be relevantly summarised as follows:

• The "Check it Out" programme broadcast by OBN at 11:00 am and 8:00 pm on 18 October 1999 and hosted by its employee Ms Vaea, was concerned with the repeal of s.16 of the Land Act. The repeal of s.16 stemmed from the decision in the PPEL case that s.16 conflicted with cl.4 of the Constitution. The programme took the form of a discussion between two panellists, one of whom was Mr Namoa, a Member of the Legislative Assembly.
  

(Section 16 provided as follows:

"16. It shall be unlawful for any Tongan subject to make any mortgage agreement or other document pledging or charging or selling his growing crops of coconuts, yams, or other produce or any part thereof. Any person acting in contravention of this section shall on conviction be liable to a fine not exceeding $100 or to imprisonment for any period not exceeding 6 months."

Clause 4 of the Constitution provides:

"4. There shall be but one law in Tonga for chiefs and commoners for Tongans and non-Tongans. No laws shall be enacted for one class and not for another class but the law shall be the same for all the people of this land.")

• The topic of the repeal was a matter of intense public debate and concern and this was "Check It Out's" second programme devoted to the issue. Mr Namoa held strong and genuine personal views about the issue.
  
• The programme was directed largely at the fact that s.16 was protective of Tongans and should not be lightly discarded. As the repeal had resulted from the PPEL case, it was inevitable that the judgment would itself become the subject of some discussion and comment.
  
• The test for contempt is whether there is a real risk of undermining public confidence in the administration of justice. Untrue allegations of bias or impropriety will amount to a serious contempt because of the tendency to undermine the very basis of the judge's function.
  
• One of the themes developed in the programme arose in comments by Mr Namoa. Having mentioned that s.16 was 72 years old, Mr Namoa said (as translated in the transcript of the broadcast in evidence):
  

"It (s.16) has lasted long for there were people wise enough before and people who loved, people who paid allegiance to, this country and these people who respected His Majesty. Another thing, Kilisitina, in the history as I understand it from the Palace Office in relation to Tupou 1, with respect, he pushed the Chief Justice not to interfere with the matters relating to this country. The land is a record at the Palace Office.

When it came to the Second King, with respect, the Chief Justice was able to make judgments around this country.

When it comes to Queen Salote Tupou III, the Sun who has Fallen, she took the Judge and threw him outside, with respect, he has no involvement at all with the land of this country.

It is now Tupou IV, with respect, the same thing. Tupou IV told the judge stay there according to section 84 of the Constitution. The unfortunate thing is that the judges who delivered the judgments have left and the company PPEL has dissolved. What is the reason for submitting a law where the company has dissolved and the Chief Justice has left? That is what I am talking about. Tupou IV, this King does not accept a Chief Justice or a foreigner to come here and want to make decisions concerning the land of this country."

• The test for contempt is not whether a comment is critical or wrong in its interpretation of the case, but whether the tendency is such that it undermines the authority of the court itself. The result will depend on the jurisdiction in which it occurred. In a small community with few judges and a relatively undeveloped press and media, the test is the same but the level of criticism likely to undermine public confidence in the administration of justice is lower than in a larger community more familiar with and better able to evaluate the remarks of commentators in the media.
  
• The effect of the passage set out above is to suggest that King Tupou I had to prevent the Chief Justice from interfering in the matters of the country; and that in the time of Tupou II, the Chief Justice was able to make such judgments with the result that Queen Salote had to take the judge and throw him out from any sort of involvement with the land of this country. What is said to be of concern is the way in which these comments are worded. Having described the earlier events in derogatory terms, Mr Namoa passed on to relate it to the present court with the suggestion that the present King also does not accept the jurisdiction of the Chief Justice to make decisions in land matters. That passage followed an earlier suggestion by Mr Namoa that the previous Chief Justice needed to be advised on the jurisdiction of his own court because he had gone wrong when acting without such advice.
  
• On behalf of the Attorney-General, it is suggested that the words used and the whole tenor of the remarks are deliberately intended to demean the judges and the court. These remarks were made in Tongan and the effect must be assessed by how a Tongan speaker would take them. Words such as teke'i and Iii kitu^'a would be seen as intending disrespect. Following that, the use of the word fietu'utu'uni in the reference to the present King would be taken as critical of the judge's conduct now.
  
• The overall effect of these passages creates a real risk that they will lower the authority of the court.
  
• It seems probable that any reasonable person making such remarks must have intended such an imputation, but the Court must consider whether Mr Namoa intended it, or simply made these remarks carelessly with little or no thought of such a meaning. This is a criminal matter and the Court must be satisfied to the criminal standard of proof beyond reasonable doubt. However, the Attorney General had proved to that standard that Mr Namoa made these remarks with the intention of ,lowering the judges in the eyes of the public.
  
• The references to the fact that, because the judges have left the country, their judgment should somehow be of no effect, coupled with the suggestion that the present King does not accept a foreigner to make decisions about land, are all part of the generally derogatory tone of his comments.
  
• Mr Namoa holds an honest belief that the PPEL judgment was wrong and he is entitled to hold that belief. But whether or not he intended to be critical of the judicial system, he allowed his disagreement with the judgment to lead him into a deliberate attack on the judges who made it, and there is a real risk that his comments would lower the authority of the court.
  

On the question of penalty, his Honour said:

• In the case of Mr Namoa, when a Member of Parliament makes his views public, especially on television, on an important issue, his words carry great weight. Therefore he must ensure that his statements are accurate and temperate. Only serious cases will amount to scandalising the court by carrying a real risk of lowering its authority. Mr Namoa's is such a case, but at the lower end of the scale of contempts, and an appropriate penalty was a fine of $1,500.
  
• As the presenter and producer, Ms Vaea was responsible for censorship and there was little editorial assistance or monitoring made available by OBN. As the presenter, Ms Vaea cannot avoid responsibility for her guests' remarks, but no penalty should be ordered.
  
• Mr Racine, as the effective overall manager and owner of OBN, neglected to ensure that proper editorial procedures and controls were in place and should be ordered to pay the relatively nominal fine of $1,000. In view of the relationship between Mr Racine and OBN, no separate penalty should be imposed on OBN.
  

CONCLUSIONS ON THE APPEAL

It will be convenient to deal with the appellants' grounds of appeal in turn.

Were the appellants entitled to the protection of the constitutional guarantee of freedom of speech in s.7 of the Constitution?

Section 7 provides:

"It shall be lawful for all people to speak, write and print their opinions and no law shall ever be enacted to restrict this liberty. There shall be freedom of speech and of the press for ever but nothing in this clause shall be held to outweigh the law of defamation, official secrets or the laws for the protection of the King and the Royal Family."

On behalf of the appellants reliance is placed upon some observations by Cory JA in the Canadian case of R v Kopyto [1987] 47 DLR (4^th) 213 [Ontario Court of Appeal]. In ordering the acquittal of a lawyer charged with a statutory offence of contempt by scandalising the court, Cory JA said (at 229):

"... statements of a sincerely held belief on a matter of public interest, even if intemperately worded, so long as they are not obscene or criminally libellous, should, as a general rule, come within the protection afforded by s.2(b) of the Charter (protecting freedom of speech). It would, I think, be unfortunate if freedom of expression on matters of public interest so vital to a free and democratic society was to be unduly restricted. The constitutional guarantee should be given a broad and liberal interpretation. The comment of the appellant carne within the ambit of that protection." [Emphasis added].

However, as the passage cited indicates, Kopyto was concerned with the developing Canadian jurisprudence on the protection afforded by the language of that country's Charter. Moreover, as Cory J.A. went on to note, no absolute approach should be taken in this area. Cory J.A. said [at 241]:

"Can such an offence (of contempt by scandalising the court) meet the requirement of the Charter?

The decision in this case should not be taken as a conclusion that the offence cannot exist. It is in effect a common law offence that, as presently defined, cannot meet the constitutional requirements of the Charter, and not an offence created by statute. The courts created the offence and thus the courts, as well as the legislature, might modify it to meet the requirements of the Charter. For example if the Crown were to prove:

that an act was done or words were spoken with the intent to cause disrepute to its administration of justice or with reckless disregard as to whether disrepute would follow in spite of the reasonable foreseeability that such a result would follow from the act done or words used;

and that the evil consequences flowing from the act or words were extremely serious;

and as well demonstrated the extreme imminence of those evil consequences, so that the apprehended danger to the administration of justice was shown to be real, substantial and immediate;

then the act or words could be punishable as a criminal offence in order to ensure the functioning of the judicial process."

The appellants further seek to rely upon the following observations of Deane J. in the High Court of Australia in a defamation case, Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; [1994] 182 CLR 104, at 179:

"Whether a particular curtailment of freedom of political communication or discussion can be justified as being in the public interest in that limited sense will depend not only on the nature, extent and claimed justification of the curtailment. It may also depend, to a significant extent, on the nature or category of political communication or discussion which is involved in the particular case. Considerations which may suffice to justify an abridgment of the freedom of some categories of political communication or discussion may be clearly inadequate to justify other categories. Thus, a general curtailment of freedom of speech by laws designed to protect the privacy or the reputation of individuals may be justifiable in its application to the publication, in the course of political communication or discussion, of statements about the character or competence of some junior government employee but unjustifiable in its application to the publication of statements made about parliamentarians, judges or other holders of high office in relation to the performance of their official functions." (Emphasis added.)

Again, no absolute rule is held to exist. Moreover, in Theophanous the question was different from that here. There, a member of Parliament commenced defamation proceedings against a newspaper in respect of a letter it had published criticising the member's views on immigration. It was held, by a majority, that there is implied in the Australian Constitution a freedom to publish material (a) discussing government and political matters; (b) of and concerning members of the Parliament which relates to the performance of their duties as members of the Parliament or parliamentary committees; and (c) in relation to the suitability of persons for office as members of the Parliament. It was further held that, in the light of this implied freedom, the publication will not be actionable under the defamation laws if the defendant establishes that (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances.

None of these questions arises here.

Earlier, in Gallagher v .Durack [1983] HCA 2; [1983] 152 CLR 238, the High Court of Australia had considered, but rejected, an argument similar to that now advanced on behalf of the appellants. Gibbs CJ, Mason, Wilson and Brennan JJ said [at 243]:

"The law [of contempt by scandalising the court] endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that 'it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority': per Dixon J. in R. v. Dunbabin; Ex parte Williams .... The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment 'is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable': R. v. Fletcher; Ex parte Kisch, per Evatt J. ... . There is no reason to reconsider these principles in the light of the American authorities, which are of course decided on constitutional provisions which have no counterpart in Australia, and which in any case lay down rules not dissimilar to those of the common law."

The constitutional validity of a statutory provision making it an offence to scandalise the Australian Industrial Commission (which does not exercise judicial power) was later considered by the High Court of Australia in Nationwide News Pty. Ltd v Wills [1992] HCA 46; [1992] 108 ALR 681. Mason CJ said [at 691]:

"... scandalising the court is a well-recognised form of criminal contempt, though it was at one time said to be obsolete, and ... it consists of any act done or writing published which is calculated to bring a court or a judge of the court into contempt or to lower his or her authority. However, at common law no contempt is made out if all that the defendant does is to exercise his or her ordinary right to criticise, in good faith, the conduct of the court or the judge. Courts and judges are open to criticism ...."

Gallagher v Durack was cited by Mason CJ. It was further referred to, with approval, in the more recent decision of the High Court of Australia in Mann v O'Neill [1997] HCA 28; [1999] 191 CLR 204 [at 253, 271].

In Nationwide News, the reasons of Deane and Toohey JJ recognise the rationale for the continued existence of this branch of the law of contempt. They said (at 727-8):

"As with a court, it is important that the Commission be constituted by members who are fit and qualified to perform the functions entrusted to them. Again, as with a court, it is important that the members of the Commission have the appearance, as well as the substance, of being fit and qualified and of acting fairly and impartially. If the members of the Commission were publicly perceived to be biased, unqualified, unfit or corrupt or customarily to act unfairly or improperly, the effectiveness of the national system of conciliation and arbitration established by the Act would be undermined and conceivably destroyed. Clearly enough, some legislative control of the kind of unfounded and illegitimate written or oral attack upon the Commission or its members which would be calculated to bring the Commission or its members into unwarranted disrepute can, in accordance with the traditional standards of our society, be justified as being in the public interest for the reason that it is necessary to enable the effective discharge of the important functions of conciliation and arbitration for the prevention and settlement of inter-State industrial disputes. Such disputes can be disruptive of an ordered society and destructive of the legitimate claims of individuals to live peacefully and with dignity in such a society."

It follows, in our view, that in Australia this form of contempt remains part of the common law. Implied constitutional rights of the kind found to exist in Theophanous do not detract from the operation of this branch of the common law.

The position is, we think, similar in Tonga. That is to say, whilst certain constitutional rights of free speech exist in both jurisdictions, in neither country, does the existence of this freedom detract from the operation of the common law rules with respect to contempt by scandalising the court. We do not understand the decision of this Court in 'Akau'ola v Attorney General (3/97) to have decided otherwise, and if anything it is to the contrary. It follows, in our view, that s.7 of the Constitution has no relevant application here.

Was there evidence that Mr Namoa made the comments attributed to him by the primary Judge?

At first instance, the Attorney-General initially led secondary evidence in affidavit form of what was broadcast. When the appellants disputed the accuracy of some of this material, the Attorney-General tendered a translated transcript of the programme broadcast on 18 October 1995. This included the passage we have set out above [at p 5] commencing with the words "It ... has lasted ..." in our summary of his Honour's findings and reasons. On behalf of the appellants, issue is now taken with some of the translation as follows:

• In respect of the passage in the fourth and fifth lines of the first paragraph, it will be recalled that the transcript reads:
  

"... in relation to Tupou I, with respect, he pushed the Chief Justice not to interfere with the matters ..."

• It is common ground that "pushed" is a translation of "teke'i", a word, as his Honour noted (see our summary at p.6 above) which was one of the three words particularly relied upon by the Attorney-General as indicating, in this context, disrespect. On behalf of the appellants, it is submitted that a better translation is "went against".
  
• In respect of the passage in the third paragraph, the transcript reads (in the same terms as his Honour quoted):
  

"... she took the Judge and threw him outside ..."

Again, as his Honour noted, the Attorney General relied on the special nuance to be found in the words "lii kitu'a". On behalf of the appellants, it is submitted that a better translation of the emphasised words would be: "and dismissed him".

• In respect of the passage in the final paragraph, the transcript reads (in the same terms as his Honour quoted):
  

"Tupou IV, this King does not accept a Chief Justice or a foreigner to come here and want to make decisions concerning the land of this country."

The words emphasised are a translation of the word "fietu'utu'uni", which is also especially relied upon by the Attorney as indicating somebody who is "bossy" or authoritarian. On behalf of the appellants, it is submitted that, the word is better translated by a statement indicating somebody who was "not tolerant".

We propose to proceed, for present purposes, upon the basis that the meanings of the three words or phrases contended for by the appellant be adopted.

Did Mr Namoa's comments constitute a contempt by scandalising the court?

It will be convenient to set out here the central passage relied upon by the Attorney, substituting the above meanings of the three words or phrases mentioned contended for by the appellants. The passage will then read:

"It has lasted long for there were people wise enough before and people who loved, people who paid allegiance to, this country and these people who respected His Majesty. Another thing, Kilisitina, in the history as I understand it from the Palace Office in relation to Tupou I, with respect, he (pushed) went against the Chief Justice not to interfere with the matters relating to this country. The land is a record at the Palace Office.

When it came to the Second King, with respect, the Chief Justice was able to make judgments around this country.

When it comes to Queen Salote Tupou III, the Sun who has Fallen, she took the Judge and (threw him outside) dismissed him with respect, he has no involvement at all with the land of this country.

It is now Tupou IV, with respect, the same thing. Tupou IV told the judge stay there according to section 84 of the Constitution. The unfortunate thing is that the judges who delivered the judgments have left and the company PPEL has dissolved. What is the reason for submitting a law where the company has dissolved and the Chief Justice has left? That is what I am talking about. Tupou IV, this King does not accept a Chief Justice or a foreigner to come here and (want to make) not be tolerant in making decisions concerning the land of this country."

Did these remarks amount to a contempt by scandalising the court? In addressing this question, we must bear in mind that, as a criminal matter, the Court needs to be satisfied beyond doubt before convicting.

It will be recalled that, as Halsbury has stated, there will be a scandalising of the court if "any act (is) done ... which is calculated to bring a court or a judge into contempt, or to lower his [or her] authority ... ." (See also, to the same effect, 'Akau'ola at 3). What is the meaning of "calculated" in this context? In Nationwide News, Mason CJ said [at 685-6]:

"The word 'calculated' in s 299(l)(d) may mean either 'intended', 'apt' or likely'. For the purposes of the present case little, if anything, turns on which of these possible meanings is correct. But it is as well that I should record my opinion that likely' is the meaning of the word 'calculated' in the context in which it appears in s 299(1)(d). In this respect, I agree with the view taken by Pincus J in Howard v Gallagher. It is significant that s $3(1) of the Commonwealth Conciliation and Arbitration Act 1904 (Cth), a legislative ancestor of the present provision, took the form: 'No person shall wilfully ... by writing or speech use words calculated ... to bring the Court into disrepute.

In that context, 'calculate' could not mean 'intended'."

In our opinion, the remarks made by Mr Namoa in the passage set out above were likely [i.e. calculated] to bring the Supreme Court and its Judges into contempt, or to lower their authority, in the eyes of the community. We have reached this conclusion by taking into account (1) the whole of the remarks; and (2) the context in which the remarks were made.

It is likely, we think, that a television viewer hearing these remarks in their context [that is, a public discussion of political issues] would understand that Mr Namoa, as a member of Parliament, was indicating that in the history of this country, the Monarch exercised a significant influence over the way in which the Judges, foreign Judges including Chief Justices, adjudicated upon land matters. A statement to the effect that the Monarchy exerted such authority is likely, in our view, to lead members of the community to conclude that the credibility of the Court as an independent institution, the third arm of government, has been seriously compromised. Once there is a public perception that the exercise of an important jurisdiction of the Court may not be impartial, there will be a loss of public confidence in the Court as an independent institution, with the consequence that the community will have a lower regard for its authority to adjudicate without fear, favour or goodwill.

The matter may be tested by considering the likely reaction to Mr Namoa's remarks by a person who is a potential litigant, whether as plaintiff or defendant, in the Land Court. This should be considered bearing in mind that the rationale for this branch of the law is, as Halsbury states, to protect the public, especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the tribunal's authority is undermined or impaired. In our opinion, it is likely that such a person would, to a significant extent, lose confidence in the Land Court's capacity to adjudicate impartially. To this extent, it is likely that the Court's authority would be impaired. In this sense, we are satisfied, beyond any reasonable doubt, that Mr Namoa's observations scandalised the Court.

THE LIABILITY OF OTHER APPELLANTS

Again, the principles in this area are well established. Halsbury [op. cit. at 20] states:

"24. Liability for contempt. Where a publication is intended or likely to prejudice the fair trial or conduct of proceedings, a contempt may be committed by any person responsible for the publication of the matter of which complaint is made. Thus the following persons may be held liable for contempt: editors, newspaper proprietors, publishers, printers, distributors and, in certain circumstances, reporters."

The other appellants fall into one or other of these categories. Each, in his, her or its own way, should be held severally responsible for the broadcast. The respective degrees of responsibility ought to be reflected in the particular penalties to be imposed on each of them.

PENALTY

As has been seen, in dealing with penalty, his Honour considered the position of each individual appellant. The penalties that were imposed were, we think, within a proper exercise of the judicial discretion. We are not persuaded that any ground for appellate interference has been made out.

ORDERS

The appeal will be dismissed, with costs.

NUKU’ALOFA: 21 JULY 2000

Burchett J,
Tompkins J,
Beaumont J