Attorney-General v Tapueluelu [2013] TOSC 48; CV 53 of 2013 (26 September 2013)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV 53 of 2013

BETWEEN

ATTORNEY GENERAL
Applicant

AND

1. MATENI TAPUELUELU
2. LAUCALA POHIVA
Respondents

SENTENCE

[1] The facts of this matter sufficiently appear from my judgment dated 30 August 2013 and need not now be repeated.
[2] Both the Crown and Mr 'Etika have filed careful and comprehensive written submissions for which I am grateful.
[3] Following delivery of the judgment, the Respondents published a fulsome apology in a prominent position in the 9 September edition of the Kele'a. Mr Adsett invites me to take this apology into account as mitigation and I do so. He also suggests that the law of contempt is a "gray area" which might to some extent excuse its breach.
[4] Mr 'Etika points out that neither Respondent has any previous conviction for any offence, including contempt of court. He emphasised the Respondents' contrition and determination to avoid committing this offence again.
[5] In the Crown's submission, the contempt here was "at the medium end of offending, bordering on the serious" while Mr 'Etika suggested that the offending "has its place at the lower end of the severity scale".
[6] As pointed out in my judgment, the central allegation against the magistrate, that he was subject to the control of the executive, was wholly false and furthermore implied that the magistrate had not only breached his oath of office but that he had also breached clause 15 of the Constitution. In my opinion that is no need to depart from the assessment of Ward CJ in Namoa, a reported case with which the Respondents should have made it their business to be familiar:

• "untrue allegations of bias or impropriety will amount to a serious contempt".

[7] Taking all these factors into account I am of the view that an adequate financial penalty must be imposed. The Respondents are husband and wife and jointly responsible for the publication of this contempt. Each Respondent is to pay a fine of $2500.00 and each is given to two months to pay. In default of payment, a period of one month imprisonment must be served by each Respondent. Both Respondents must also pay the costs of these proceedings within two months. These will be taxed if not agreed.
[8] Before leaving this matter, I wish to refer to paragraph II 4(6) and (7) and IV 56 and 57 of the Crown's submissions. While I am grateful for the research put into these submissions, it is not proper for the Crown to recommend or request that any particular sentence be imposed. I refer to Supreme Court Practice Direction 1/1999, a copy of which is attached to these remarks, and which is still in force. I also respectfully refer counsel to Attorney General v Jim Chong-Shing [1991] LRC 832 in which the role of the prosecutor in sentencing is discussed in considerable detail.

DATED: 26 September, 2013 JUDGE