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Attorney General v Lavulavu [2023] TOSC 27; CR 21 of 2023 (28 April 2023)

IN THE SUPREME COURT OF TONGA
NUKU’ALOFA REGISTRY


CR 21 of 2023


IN THE MATTER OF :


ORDER 13 OF THE SUPREME COURT RULES


AND :


THE ATTORNEY GENERAL
Applicant


AND :


ETUATE LAVULAVU
Respondent


RULING


BEFORE: Hon. Justice Tupou KC

Hearing: 24 - 27 March, 2023

Appearances: Mr. T. Maka for the Applicant

Mr. Etuate Lavulavu in person
Date of Ruling: 28 April, 2023


Background

  1. On 7 February, 2023 the Attorney General (“AG”) filed an application for the committal of Mr. Etuate Lavulavu (“the Respondent”) for contempt of Court.
  2. The application alleged that on 26 October, 2022 an interview of the Respondent was live streamed on facebook and youtube. In it, the Respondent made a number of comments about the conduct of the trial in proceedings CR 173 and 174 of 2018 against Mr. and Mrs. Lavulavu that amounted to contempt of court.
  3. The AG relied on 6 statements made by the Respondent during the interview that constituted remarks to the effect that:
    1. Justice Cooper predetermined the case;
    2. Justice Cooper’s application of the law was incorrect;
    3. Justice Cooper disregarded the Lavulavu’s arguments without any consideration of them;
    4. their convictions were not based on evidence;
    5. Justice Cooper is not allowed to disregard the testimony of witnesses; and
    6. Justice Cooper’s decision was influenced by political figures and persons of high rank.
  4. On 28th February, 2023, the Lord Chief Justice Whitten QC ruled that with the exception of the 6th charge, the 1st to the 5th charges were broadly consistent with the decision of the Court of Appeal and did not constitute a prima facie case of contempt.
  5. The Respondent pleaded not guilty to the 6th charge and the matter was fixed to be heard before me on 9 March, 2023.

Application for Adjournment


  1. On 7 March, 2023, Mr. Lavulavu filed a letter addressed to the Registrar of the Supreme Court seeking an adjournment of 2-3 months in order to prepare for the hearing. The application was opposed by the Crown.
  2. I granted the application and adjourned the matter for 2 weeks and explained to the Respondent that there was one remaining charge and that he only needed to deal with the transcript relevant to that allegation.
  3. He withdrew a request that I recuse myself. He had also identified a number of witnesses he wished to call and was informed that the court would not be involved on advising him how he ran his case. Other reasons he gave, such as the risk of revealing his defence in the re-trial of his case on 10 May, 2023 and a report from the Attorney General on certain complaints, were irrelevant.

The Applicant’s Evidence

  1. The AG called Mrs. Tupou Vainikolo who had filed a sworn affidavit on 7 February, 2023 in support of the application for contempt. She is a Crown Prosecutor with the AG’s office and had held that position for 6 years.
  2. She had analysed the interview between the Respondent and Mr. Sylvester Tonga on 26 October, 2022 titled “POLOKALAMA MAVAHE #2” that was live streamed on VPON Media & Broadcasting facebook account on link https://fb.watch/gPTcBpG73q/, and on youtube at the link https://www.youtube.com/watch?v=aQMkEUhlxx0. She watched the video on both platforms as well as a downloaded copy of the interview provided to her by Mr. Vainikolo, the system administrator in the AG’s office.
  3. She said that on 22 November, 2022 at 1:12am the relevant video on Facebook had 168 emoji reactions, 291 comments, 105 shared and 10,000 views. She attached screenshots of the facebook page showing this as annexures “B” and “C” to her affidavit.
  4. She said that words spoken by the Respondent on or around 1:42:15 minutes of the video were calculated and posed a real risk of undermining public confidence in the administration of justice.
  5. She attached a transcript of the interview in the Tongan language (in which the interview was conducted) with a translated version in the English language as annexure “D”. The words as translated were:

“Yes I believe that is what happened and it was not just me who saw them I was very surprised but I don’t want to talk about who it was but they are political figures, two of them and others who are in a higher level than the Judge. I think its best if I just leave it at that, but to my knowledge there are people, from what I know, who have been misleading the Court and I feel sorry for the Court. I stayed back when the Court of Appeal trial finished and the appeal judges came and delivered their judgment and I felt sorry for the Judge and I had a lot of love for the Judge. I really felt that he believed these people who were trying to mislead him from the side and that’s where the truth was lost and for other reasons that I will discuss tomorrow” 1:43:29

  1. Under cross examination the Respondent put to the witness that by the words “political figures” he meant the Probation officer and Crown counsel dealing with his case.
  2. Mr. Metuisela Vainikolo is the system administrator at the AG’s office. He is 32 yrs. old and holds a Bachelor of Arts in Information technology from Whitireia University. He is married to the first witness Mrs. Tupou Vainikolo.
  3. He too had watched the said interview and had downloaded it on 27 October, 2022. A part of the video was played showing the Respondent and another person, now known to be Sylvester Tonga. The title of the program was “Polokalama Mavahe #2 pea mo Etuate Lavulavu (Fakafofonga Fale Alea Malolo & Minisita Malolo)”. The video was tendered as P1.
  4. He produced as P2 and P3 properties of the video he downloaded. On P2 it can be seen that the video was created on 27 October, 2022 at 2:08:29 pm, modified on same date at 2:03:34pm and accessed on 23 March, 2023. He said that he had not modified the video, apart from downloading it.
  5. Under cross examination, Mr. Vainikolo said that the link to access the video was sent to him and he downloaded it. It was suggested to him that he and Mrs. Vainikolo were talking about 2 different videos. He said that the video was the same but they used different means to access it. He explained that she may have gone directly to the link to watch it. He was producing the video he downloaded.
  6. He said that it was impossible for him to modify the video between the time the link was given to him and the time he downloaded it. He was questioned if he knew the proper way to submit electronic evidence to the courts. Mr. Vainikolo said he was not sure but he had downloaded the video the normal way and the link to the source was still available to confirm the content of the downloaded video.

The Respondent’s Evidence

  1. The Respondent elected to give evidence and called 2 other witnesses.
  2. He is 64 years of age and is married with children. He is from Leimatu’a, Vava’u but resides temporarily at Sopu, Tongatapu. He is the Project Manager for Interpacific Ltd of Vava’u and owns a consultancy company known as Tonga Media and Public Relation Ltd.
  3. He accepted that on 26 October, 2022, he was interviewed by Mr. Sylvester Tonga of VPON Media and Broadcasting regarding the proceedings against him and his wife, Akosita Lavulavu.
  4. The Respondent took issue with the Crown’s translation of the words “kautama fakapolitikale” and “uesia". His said that “kautama fakapolitikale” should be translated into “people interested in politics” not “political figures” and “uesia” translates into “mislead” not “influence”. He said that when he said “persons interested in politics” he was referring to the DPP, Crown Prosecutors and the Probation Officer involved in his case.
  5. To explain, the respondent produced evidence of complaints he had lodged against a number of people. Those were:
  6. I have had the opportunity to look at the documents relating to the complaints against the Crown counsel and probation officer which are D3, D6, D7 and D10. Naturally, I would not have considered the DPP, Crown Counsel and Probation officers as “outsiders” to the court. The Respondent in fact, in D3, correctly, acknowledged that law practitioners were officers of the court.[1]
  7. In my reading, the complaints against the DPP and Crown counsel related to their handling of the case against him in court. They were accused of things like fabricating evidence, submitting false evidence, false and inaccurate representations on submissions to name a few. I did not find any complaint that the DPP and Crown Counsel were people interested in politics or that he, the Respondent saw the DPP or Crown Counsel visit the Judge in the court office outside of their duties. I therefore reject the suggestion that the DPP and Crown Counsels are people interested in politics in this context or that they visited the court office or the Judge outside of their duties.
  8. As against the Probation Officer, the complaint was in relation to his pre-sentencing report filed with the court. He was accused of a variety of misconduct including bad intentions, abuse of power, lying on the report and filing a false report[2]. Nothing in the complaint stated that he was a person interested in politics or visited the Judge in the court office outside of his duties. I also reject the suggestion that the Probation Officer was a person interested in politics in the context alleged or that he visited the court office or Judge outside of his duties.
  9. He challenged the manner in which exhibit P1 was admitted and appeared to suggest there was a required procedure to be observed before the exhibit could be admitted as evidence.
  10. Semisi Hopoi is 46 years old and is married with children and resides at Ha’ateiho. He works at the Tonga National University as a senior lecturer at the ICT school. He holds a Master’s Degree in forensic cyber security and another in forensic information technology.
  11. The gist of Mr. Hopoi’s evidence was that the downloaded video produced as P1 by Mr. Vainikolo had been tampered with and therefore unfit to be used as an exhibit in Court. He said that the information contained in P2 shows that the video had been tampered with. In particular that it was created and modified on 27 October, 2022. He explained that when you play the video you have already tampered with it. I understand this to be the extend of the tampering claimed as no other evidence was led on the point.
  12. He said that in his experience, the original must be preserved and cannot be played even before it’s produced in court. Any work done must be conducted on a copy, never the original. He agreed that it would take more than half an hour to edit a video as long as the video in this proceeding. I note, the time between the creation and modification shown on P2 is nowhere near half an hour.
  13. Sylvester Tonga, filed a sworn affidavit dated 22 March, 2023 and was called during the hearing. He is 53 years old and is married with children. He lives at Birkdale, North Shore, Auckland, New Zealand. His highest qualification is a Master’s degree in journalism and public policy and is currently in his 3rd year studies for a Doctor of Philosophy. He is the owner and Manager of a registered company in New Zealand known as VPON Media and Broadcasting Ltd.
  14. Mr. Tonga explained that after the Court of appeal decision that released the Respondent and his wife from prison, the public were very interested in hearing from the Respondent in person. Coupled with what he saw as his obligation to update the public on current events, Mr. Tonga requested an interview with the Respondent.
  15. He said there was a total of about 10 programs with the Respondent. They were all conducted in the tongan language. The material interview was titled “Polokalama Mavahe #2 mo “Etuate Lavulavu” on VPON Media and Broadcasting Facebook(https://www.facebook.com/vponmedia.co.nz) & Youtube (https://www.youtube.com/@VPONMEDIA).
  16. He explained that during such interviews, the questions are spontaneous and often include questions from the public. He would pick the questions most relevant to the topic and put that to the interviewee. Naturally they are impromptu questions and are answered in the same manner.
  17. Based on a question from the public, he at around 1:41 mins of the program asked the Respondent if he believed there were persons who misled the Judge causing his decision to be biased and unfair as decided by the Court of Appeal. Translated, it reads:

“My question to you is that yesterday you raised that there are some people from the outside who have been visiting the office of the court. I want to know whether according to what you know, if there were any others who were affected by the Judge’s decision that was full of bias and unfair and those other grounds that were accepted in the Court of Appeal.”


  1. At paragraph 12 of his affidavit he confirms the Respondent’s answer is that recorded at the top of page 34 of the tongan transcript.[3]
  2. He supported the Respondent’s position that the persons interested in politics were later identified by the Respondent as the DPP, Crown counsels involved in his case and the Probation Officer.

The Respondent’s challenge to the admissibility of the Applicant’s evidence


  1. Throughout the hearing the Respondent dedicated time to point to the inaccuracy of the English translation of the transcript.
  2. On the understanding that the video will be played and produced, I encouraged the parties to address the complaints by the Respondent about the English translation and if they could not agree to identify those disagreements. This was a matter of translation only and did not, in my mind extend to the spoken tongan words at the centre of this application.
  3. The Respondent asserted that the Crown’s failure to play the video links or downloaded video mean that they should be rejected together with the transcript and evidence of the Crown’s witnesses as hearsay.
  4. In terms of proving contents of video recordings or films, I refer to Blackstone’s Criminal Practice 2023 Part F – Evidence. Chapter F8. 62 states:

“The contents of photographs and films on which a party seeks to rely may be proved by production of the original; or by production of a copy proved to be an authentic copy; or by the parol evidence of witnesses who have seen the photograph or film. In Kajal v Noble (1982) 75 Cr App R 149, Ackner LJ held that the rule, that if an original document is available in a party’s hands he or she must produce it and cannot give secondary evidence of it, was confined to written documents in the strict sense of the term and has no relevance to tapes or films. In Taylor v Chief Constable of Cheshire [1986] 1 All ER 225, a video cassette recording, made by a security camera and showing a person in a shop picking up an item and putting it into his jacket, was played to police officers who identified the person as D. The recording, after it had been returned to the shop, was accidentally erased. Evidence by the officers of what they had seen on the video was held to have been properly admitted, on the ground that what they had seen on the video was no different in principle from the evidence of a bystander who had actually witnessed the incident, and the appeal against conviction was dismissed.”


  1. Further F8.57 states:

“If the recording is not played during the course of the trial but, after retirement, the jury asks to hear it rather than rely on the written transcript, they are entitled to hear it because the recording is the exhibit and the transcript merely a convenient method of presenting it (Riaz (1991) 94 Cr App R339). However, where the prosecution opt not to play the recording but to provide the jury with an agreed transcript and agreed expert comment on it, the jury should not be allowed to conduct their own inquiry as to what is on the recording (Hagan (1997) 1 Cr App R 464).”


  1. At one point the Respondent concurred with the Tongan version of the transcript to be used to “Judge” this case and then on separate ocassions he only accepted 90% of it. I accept that as his right and I am unable to reasonably accept that there was an agreement to the transcript.
  2. Accordingly, in line with the above principles I have gone on to watch the youtube link as the primary evidence[4] provided by Mrs. Vainikolo and heard the Respondent say the words set out at paragraph 13 above at approximately 1:42:17 mins ending at 1:43:29 mins. I have also viewed exhibit P1. Again, it is the same interview and the words said by the Respondent at paragraph 13 could be heard at 1: 42:17 mins and ended at 1:43:29 on that recording.
  3. I am satisfied beyond reasonable doubt that the Crown has proven the publication of the statements made by the Respondent via the VPON Media & Broadcasting facebook and youtube platforms. The same video is recorded in P1.
  4. As for the English translation of those words, I understand the Respondent’s objection was limited to the translation of the words “kautama fakapolitikale” which he contends translates into “people or persons interested in politics” and the word “uesia” translates into “mislead”. Adopting his translation, in my view, does not sufficiently change the meaning of the words to defeat the Attorney General’s complaint .
  5. In a sense the words “people or persons interested in politics” only widens the described group to mean anyone who is interested in politics as opposed to “political figures” which could mean elected politicians or leaders. As to the translation of the word “uesia” to “mislead”, connotes a negative impact as opposed to the neutral term “influence”. When inserted the paragraph would read:

“Yes I believe that is what happened and it was not just me who saw them I was very surprised but I don’t want to talk about who it was but they are people who are interested in politics, may be two of them, and others who are in a higher level than the Judge. I think it’s best if I just leave it at that, but to my knowledge there are people, from what I know, who have been misleading the Judge and I feel sorry for the Judge. I stayed back when the court of appeal trial finished and the appeal judges came and delivered their judgement and I felt that he believed these people who were trying to mislead him from the side and that’s where the truth was lost and for other reasons that I will discuss tomorrow.”[5]


The Law

  1. The Crown cited Attorney General v Vatikani [2005] TOSC 23 where Paulsen LCJ said:

“[15] The relevant law on contempt of court has been set out by the Court of Appeal in Namoa v Attorney General and in Attorney General v Tapueluelu.


[16] Any act done or writing published calculated to bring a Court or a Judge into contempt or to lower his authority is a contempt of Court. The purpose of this form of contempt is to protect the public (not the Court or the Judge) from the mischief that will occur if the authority of the Court is undermined or impaired.


[17] Anyone is free to criticise the decisions of the Court or the conduct of any Judge, even if the criticism is outspoken, mistaken or wrongheaded, provided that it is not likely to undermine the public confidence in the administration of justice. In many cases the good sense of the community can be relied upon as sufficient safeguard against a scandalous disparagement of a Court or Judge.


[18] In an action for contempt by scandalising the Court, what must be proved beyond reasonable doubt is the publication of material that is calculated, in the sense of likely, to bring a Court or a Judge into contempt or lower their authority in the eyes of the community. There is no requirement that it be proved that they were in fact so undermined.


[19] In reaching its conclusion the Court must take into account the whole of the material and the context in which the material is published...”


  1. In the same case, His Honour rejected the notion in Attorney General v Namoa that the level of criticism likely to undermine public confidence in the administration of justice is lower in a small community with few Judges and a relatively undeveloped press and media. His Honour proceeded on the basis that regardless of the characteristics of the community, the legal test remain the same. I agree. Presently, a large percentage of the local community have access to smart phones and the internet, rendering such notion outdated.
  2. Of particular relevance to this instant case is paragraph 21 of Vatikani citing R v Editor of the New Statesman, exp DPP [1928]44 TLR 301 stating that:

“It is well established that an allegation that a Judge is partial or biased is calculated to bring that Judge into contempt. Such allegations are serious because they undermine confidence in the basic function of a Judge.”


  1. Here, the words spoken by the Respondent plainly impute bias and impartiality. In Vatikani again, Paulsen LCJ quoted Scott CJ in Tapueluelu, at paragraph 19

where he said:


“Once publication of contemptuous words has been proven it only remains for it to be proved that the words carried a real risk that confidence in the Courts would be undermined.”


  1. Having found that the publication of the contemptuous words proven, the question is “whether there is a real risk of undermining public confidence in the administration of justice.”
  2. Mr. Tonga’s question as phrased effectively held the Respondent to a comment he had made the day before about “people from the outside who had been visiting the office of the court”. The question aimed at the Supreme Court Judge’s decision he said was described as unfair and full of bias by the Court of Appeal. Clearly, the decision against the Respondent that went to appeal was Justice Cooper’s and those were the proceedings discussed in the video at the relevant point. Plainly, the reference was to Justice Cooper, it could not be to any other Judge.
  3. Considering the Respondent’s answer in the context of the interview, the question posed, the plain and literal meaning of the spoken words, the clear imputation was that outsiders were visiting the court office and those outsiders were people interested in politics and persons who occupied a position higher than the Judge, those people misled the Judge and the Judge believed them resulting in the loss of truth.
  4. A listener or viewer, in my view, would understand from the statements made by the Respondent that Justice Cooper’s decision to convict him was driven by outside forces, namely, persons interested in politics and persons above his level; that Justice Cooper in believing those persons is not impartial; that the Supreme Court is not an independent institution and is susceptible to political influence and authorities higher than the court.
  5. The statement strikes at the core function of a Judge and his oath to perform truly and with impartiality his duties as a judge, sufficient to shake the “confidence of ordinary people in the proper, safe and efficient administration of Justice”.[6]
  6. As to proof of the real risk, LCJ Paulsen in Vatikani said:

“It must be proved beyond reasonable doubt that the words are likely to bring a Court or a Judge into contempt or lower their authority in the eyes of the community. In a case such as this, it will be necessary to prove to the required standard that a publication has a wide circulation in the area where it is claimed confidence is impaired.”


  1. In this respect, I am satisfied with Mrs. Vainikolo’s evidence supported by a screenshot of the interview on the VPON facebook page showing 10,000 views, 291 comments and 168 emojis[7] and Mr. Tonga’s acceptance of that evidence, that the Crown had proven the VPON Media & Broadcasting you tube and facebook platforms are widely accessed here and abroad.
  2. Having considered the evidence and submission from both parties and for all of the above reasons, I am satisfied beyond reasonable doubt that the statements made by the Respondent scandalised the Court.

Result

  1. I am satisfied beyond reasonable doubt that the charges against the Respondent has been proved. I find him guilty of the offence of contempt of Court.
  2. I will hear counsel on penalty and costs.

P. Tupou KC

JUDGE


NUKU’ALOFA

28 April, 2023

[1] Pg.2 para.4
[2] D.10, pg.7-8
[3] Refer para.13 above
[4] Also consistent with the best evidence rule
[5] Consistent with the Respondents version presented in his closing submissions
[6]AG v Fusitu’a & ors [1997] TLR 18
[7] Annexure C of her affidavit

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