Attorney General v Vaai [2009] WSSC 47 (4 May 2009)

S387/07
S388/07

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

ATTORNEY GENERAL of Samoa
Informant

AND:

ASIATA SALEIMOA VAAI
Defendant

Counsel: H J Langmead and L S Petaia for informant
F Vaai-Hoglund for defendant

Hearing: 20, 21 and 22 April 2009

Judgment: 4 May 2009

JUDGMENT OF JUSTICE KELLAM

1. Before the Court are two informations seeking orders that the defendant be committed for contempt of court. It is necessary to recite some of the background to the allegations in question.

The background facts

2. On 8 December 2006 the Samoa Democratic United Party (SDUP) and seven of its members, one of whom is the defendant in the two proceedings before me, filed two notices of motion in the Supreme Court of Samoa. Both notices were filed in response to an announcement made in the Parliament of Samoa by the Speaker of the Legislative Assembly on 13 November 2006, to the effect that as the parliamentary membership of the SDUP had fallen below the 8 persons required by Standing Order 20 of the Standing Orders of the Parliament of Samoa the SDUP was to be no longer recognised as a party in Parliament. As I understand it, the first notice of motion sought a declaration that the decision of the Speaker was unconstitutional. The substantive hearing of that proceeding is yet to take place. The second notice of motion sought interim injunctive relief restraining the Speaker from not recognising the SDUP as a political party in Parliament. Although apparently not expressed in these terms, the relief sought was really in the nature of a mandatory injunction, requiring the Speaker to be compelled to recognise the SDUP.

3. After a number of mentions in the matter, the notice of motion seeking the interim injunction finally came before the Chief Justice of the Supreme Court of Samoa on 6 March 2007. He delivered judgment on 12 March 2007. His Honour refused the plaintiff’s motion for interim injunctive relief.

The Publication in the Samoa Observer of 22 March 2007

4. On Thursday 22 March 2007 the Samoa Observer published an article in the English language under the headline "CJ ACCUSED IN POLITICAL ROW". The newspaper also contained a similar, but not identical article in the Samoan language.

5. The article in English was stated to have been written by Sarai Ripine. The article commenced with the following words:

"The leader of the Samoa Democratic United Party (SDUP) Asiata Saleimoa Vaai has accused the Chief Justice... "of being biased towards the Government". Asiata’s allegation follows Chief Justice Patu’s decision to refuse an interim injunction seeking a stay in the non-recognition of SDUP in Parliament"

6. The article then summarised the findings of the Chief Justice. It continued:

"But an unhappy Asiata accused the Chief Justice of playing favouritism. "The Chief Justice is biased toward the Government" Asiata said. He also questioned why it took so long for the Chief Justice to deliver his ruling, when this should only have waited (sic) two or three weeks".

The evidence of relevance relating to the Samoa Observer publication of 22 March 2007

7. The first information with which I am concerned relates to the statements allegedly made by the defendant to the reporter Sarai Ripine.

8. Sarai Ripine under whose name both the Samoan and the English versions of the newspaper article were published on 22 March 2007, gave evidence before me. She said that she had been a journalist for nine years and that she had worked with the Samoa Observer for the last three years. She said that on the morning of 21 March 2007 her editor, Mata’afa Keni Lesa instructed her to contact the defendant "regarding anything he wishes to say in respect of the decision by the Court" in relation to the issue of the recognition of the SDUP in Parliament. It will be recalled that the decision had been handed down nine days prior to 21 March 2007. She stated that she had spoken to the defendant on many occasions previously. She said that she had spoken to the defendant and had heard him speak sufficiently often to recognise his voice over the telephone.

9. Having obtained her instructions from the editor she said that she had gone first to the defendant’s legal office but that there was "no-one there". She said that she had asked the lady at the reception desk for the defendant’s telephone number and she had been given his home number and his cell phone number. Then she had returned to her office and attempted to telephone the defendant on his cell phone, but it had not been answered. Accordingly she had telephoned his home phone number. She said that a woman had answered the telephone. That woman had identified herself as the wife of the defendant. Mrs. Ripine had asked to speak to the defendant. Subsequently the defendant had come to the phone. She recognised his voice. She introduced herself as being from the Samoa Observer and then asked the defendant whether he wanted to say anything about the Court’s decision. She said that the conversation had taken place in the Samoan language. She said that she "then directly asked him how he felt about the decision and he directly replied by saying that the Judge was biased in his decision".

10. She said that in the course of the conversation the defendant had used both the words "fa’aa’ua’u" which she said meant "bias" in English and the word "fa’aitua’u" which she said meant "taking sides" or "favouritism" in English. She said that the conversation had taken more than 10 minutes. She said that she had made notes of the defendant’s answers to her questions, but that she no longer had the notes in her possession, they having been destroyed soon after the conversation had taken place. She said that after the interview had finished she worked on her notes and drew up the story for the newspaper. She drafted the story in the Samoan language. Having done that she said that she had had a discussion with her editor. She said that her editor had written the English version of the article, notwithstanding the fact that her name appeared as the author.

11. In cross-examination Mrs. Ripine stated she had spoken to the defendant on the telephone on previous occasions although she could not remember the number of times she had done so. She said that the conversation had taken place between "2 to 3pm" and she repeated that the conversation had taken place on 21 March 2007.

12. It should be observed that the Editor of the Samoa Observer Mata’afa Keni Lesa later gave evidence. He stated that it was "definitely not possible" for the conversation between Mrs Ripine and the defendant to have occurred between "2 to 3pm" on 21 March 2007. He said that having received Mrs Ripine’s article in the Samoan language there were a number of steps to be taken before he proceeded to publish the article. In particular he gave evidence that it was necessary to seek comment from the Chief Justice before he proceeded to publish the article. It should also be observed that the defendant gave evidence that he had had no such conversation with Mrs Ripine. Accordingly there is a total conflict in the evidence given by Mrs Ripine and her editor as to the time at which the alleged conversation with the defendant had taken place, and between Mrs Ripine and the defendant as to whether such conversation had occurred at all.

13. In any event, in the course of her cross examination Mrs Ripine confirmed her evidence that the conversation with the defendant had taken place on the afternoon of 21 March 2007. She was cross-examined about the estimate of the length of the conversation that she had given to police. She acknowledged that her police statement contained a statement that the conversation with the defendant had taken 20 to 30 minutes, but she insisted that she had told the police that the conversation had taken 10 to 20 minutes. She agreed that the statement that she had attributed to the defendant in her article was but "a fraction" of the whole conversation. Apart from the conversation which Mrs Ripine stated that she had had with the defendant, she stated that she had attended ‘several press conferences between Asiata and the media" regarding the application to the Court about the "non-recognition" of the SDUP in Parliament. She said that on those occasions the defendant had spoken about a perception of bias by reason of the "delay regarding a decision", but that such statements had been made by him before the handing down of the decision.

14. In the course of her cross-examination, Sarai Ripine conceded that in her article written in Samoan, she had used only the word "fa’aa’ua’u" which word she said meant "bias". She agreed that she had not used the word "fa’aitua’u" which word she considered meant "taking sides". She agreed that the word ‘favouritism’ which appeared in the English language article, did not appear in the Samoan language article. She said that there is "not much difference" between the two words, ‘fa’aa’ua’u’ and ‘fa’aitua’u’, in the Samoan language. However, she said that she recalled that the defendant had used both words in his telephone conversation with her. She said that the editor decided to use the word "favouritism" in the English language version although she had not used the word for "favouritism" in the Samoan language version.

15. Of particular relevance is the fact that Sarai Ripine conceded that her article in the Samoan language version contained a statement which when translated into English stated "Asiata stated that it is a decision which appears to show bias by the judge to the Government". Sarai Ripine agreed that the defendant had used the words ‘appears to show bias’, but she also stated that the defendant had said the Chief Justice was biased. She agreed however, that the English language version of her article did not contain any similar statement referring to the appearance of bias.

16. As stated above, the editor of the Samoa Observer gave evidence. In response to a leading question he said that "on about 21 March 2007" he had had a conversation with Mrs Ripine. He said "Basically the Court has (sic) just delivered a ruling on the Court case between the SDUP and I think the Government and what I told Sarai is to contact the leader of the SDUP at the time to get a reaction about the ruling". He said that "she came down and told what Asiata had said". He said he noted down the gist of the conversation but that he no longer had any such notes in his possession.

17. He said that the article in English was not a word for word translation of the Samoan article. The sources that he drew upon were "my conversation with Sarai, her conversation with Asiata and also the Samoan version (of the article) that was in front of me".

18. As stated above, there is a complete conflict between the evidence of the defendant, who denies having had any conversation at all with Sarai Ripine, and that of Mrs Ripine. Indeed his evidence is not only that he did not speak to her but that he "would not" have spoken to her. He said that "I can categorically say that I never spoke to her on the phone, the only people that I speak to on the phone that I know are Alan Ah Mu (another reporter at the Samoa Observer) and Keni Lesa. I do not speak to anyone that I do not know except the New Zealand international news". He said that the first time he spoke to Sarai Ripine was when "towards the middle of the year she told me that the police had spoken to (her) about the article that she wrote". In this regard it should be observed that Mrs. Ripine had made a statement to police on 10 August 2007.

Conclusion as to the evidence about the statements allegedly having been made to Mrs. Ripine on 21 March 2007

19. I accept the evidence of Mata’afa Keni Lesa that the confident and repeated assertion by Mrs. Ripine that she had telephoned and interviewed the defendant on the afternoon of 21 March 2007 cannot be correct. Indeed Mr Lesa in his evidence, conceded frankly that his memory as to precise times and dates was "not clear at all". There are a number of issues which arise as to when, if at all, the alleged conversation had between Mrs. Ripine and the defendant took place. First there is no doubt that the judgment of the Chief Justice was handed down on 12 March 2007. However, the evidence of Mrs. Ripine was that it was only on 21 March (or accepting that she was in error about that, perhaps the day before) that Mr Lesa gave instructions to her to interview the defendant. However, Mr Lesa gave evidence that the Court had "just delivered" the judgment when he told Sarai Ripine to interview the defendant. Both she and Mr Lesa gave evidence that Alan Ah Mu was the reporter who usually dealt with the defendant. The explanation given by both of them as to why Alan Ah Mu did not interview the defendant was that he "was not" or "could not have been" there that day. No satisfactory explanation for why the request to interview the defendant was made so many days after the delivery of the judgment was provided to me. It was suggested by both that there were difficulties in contacting the defendant. However, the evidence of both Sarai Ripine and Mr Lesa was that she was instructed to speak to the defendant at home if need be. There is no reason to believe that any difficulty in contacting the defendant extended over a number of days. This inexplicable evidence does raise in my mind a real doubt as to when the alleged conversation took place, and taking into account the evidence of the defendant, the possibility, at least, that it did not take place at all.

20. Furthermore, it should be noted that only one line in the article published in the English language version of the article is attributed to the defendant. That line is "The Chief Justice is biased towards the Government". Mr Lesa, conceded frankly that the statement that "an unhappy Asiata accused the Chief Justice of playing favouritism" was his own narrative. Certainly, it was a narrative based upon his discussion with Mrs Ripine. Mr Lesa said "I know she used the word "Fa’aa’ua’u" but I am not sure if she used the word "Fa’aitua’u". He said further that the words "playing favouritism" was (sic) my judgement of what Dr Vaai had told Sarai". It is thus clear that those words arose in consequence of Mrs Ripine’s hearsay statement to the editor of what had been said to her in the Samoan language. However, in all the circumstances the question of whether or not they are an accurate translation of what was actually said is open to conjecture.

21. I must be satisfied beyond reasonable doubt that the defendant used the actual words attributed to him before I can turn to the issue of whether those words can be said to constitute contempt of court. The evidence as to what was said by the defendant must be cogent, exact and certain before I could find that such words constituted contempt of court. In my view the evidence as to what, if anything, the defendant actually said is entirely unsatisfactory. First, and as stated above, the precise date and time when the alleged conversation actually took place is not established clearly by the evidence. Secondly, the evidence of Mrs. Ripine is that the conversation took "more than 10 minutes". Her previous statement to police establishes that her credibility in relation to this matter is in doubt.

22. However, even if the conversation was as short as 10 minutes the only real recollection of it by Mrs. Ripine is that she introduced herself, asked for a response to the Court judgment and obtained a response that the Chief Justice was biased towards the Government. She did not give evidence of any other question having been asked of the defendant by her. She kept no notes of the conversation, but on her evidence she wrote her article immediately after the conversation. At least on one view of the evidence the article in Samoan referred to the words "appears to show bias". The word "Faa’i’tuau" did not appear in the Samoan article and yet did appear in the English version of the article as the word "favoritism’. However the word did not appear as a quotation of something said by the defendant, but rather as a piece of narrative, which was conceded by the editor to be his narrative of what he understood had been said to Mrs. Ripine by the defendant.

23. Both parties urged me to accept the evidence of their respective witnesses as to the fact, or otherwise, of the conversation having occurred between Mrs Ripine and the defendant. Whilst I am of the view that on the balance of probabilities some conversation took place between Sarai Ripine and the defendant about the Court’s decision, I am simply unable to be satisfied beyond reasonable doubt as to the precise words which were used by the defendant in any conversation which he may have had with Mrs Ripine. I certainly cannot be satisfied beyond reasonable doubt that the words alleged to have been used in the English language version of the article are a precise translation of the words said to have been used by the defendant to her in the Samoan language. It follows that the first information should be dismissed.

The second Information

24. I move now to the circumstances and the issues raised by the second information which alleges that between 12 March and 25 March 2007 the defendant committed a contempt of court "by writing a letter to the Editor of the Sunday Samoan for publication in that newspaper, which letter was published in the Sunday Samoan on 25 March 2007". The information alleges that "the letter to the editor impugned the integrity and impartiality of the Chief Justice of Samoa and of the Supreme Court of Samoa". It is further alleged that the letter "created a real risk that public confidence in the Court and the judicial system would be undermined, and as a practical reality the letter had a tendency to lower the authority of the court and to interfere with the course of justice".

25. As distinct from the subject of the first information, there is no doubt as to the facts which relate to the second information. The defendant in giving evidence conceded that he wrote the letter, and that he wrote to the Editor with the intention of it being published. I set out the contents of the letter:

"SDUP recognition and the rule of law

Dear Editor- The Chief Justice, like other judges of the Supreme Court, is under a constitutional oath and duty to "do right to all manner of people, without fear or favour, affection or ill will".

The Chief Justice therefore, particularly as head of the judiciary, must diligently adhere to the basic principle in the administration of law that "justice must not only be done, it must been to the done". In other words justice is not just about "process"; it is also about "perception". Perception is the public "watchdog" which polices public confidence in judicial integrity and a just legal system.

It is well known in political circles that the Chief Justice was the lawyer for the HRPP and his political appointments to government posts were firstly to the Attorney General and later Chief Justice. The Samoa Observer in October 2006 publicised the opening of the newly repaired – purported to have cost "close to a million tala" – home of the Chief Justice at Lelata. Invitees to the opening included the Prime Minister and Speaker of Parliament (the Defendant in the SDUP action and this was around the time when SDUP recognition regularly appeared in the media. In his opening address the Chief Justice was quoted as thanking "Government for honouring him with such a beautiful home" (Samoa Observer 1 October 2006). HRPP affiliation connections and fraternising ought to have compelled the Chief Justice to acknowledge that perception implications allegation of bias and favouritism would arise if he were to determine the SDUP claim.

Because the SDUP claim involved litigation between a government of the HRPP and an opposition political party (SDUP) it is trying to smother, this ought to have been sufficient reason for the Chief Justice disqualifying himself from determining the SDUP claim. In my view it was reasonably foreseeable that perceptions of bias and favouritism would arise if he were to rule in favour of the HRPP and against the SDUP, as he has done, in view of the underlying connections and relationships referred to.

He did not need to be asked to step down or to disqualify himself; the situation called and cried out for his non-involvement in the determination. Regrettably, judicial precedents and history testifies to the Chief Justice presiding over conflicts of interest situations which public interest demanded or cried out for abstention and disqualification. – See Petaia v Sapolu 1990. This is most unfortunate in my view.

The Justice Department appears to believe that the answer to the allegation of bias is addressed by a publication of the written decision, which the Samoa Observer did in its 22nd of March 2007 issue. The written decision is only the process and no amount of rational reasoning in the decision could satisfy the issue of perception which is as I have said is separate from the process. It also does not exonerate a judicial violation or infringement of the standards expected of a holder of the highest office in the land, next to the Head of State.

Perusing and analysing the published written decision by the lay person throws little light if any on the issue of judicial bias, because bias allegations are not concerned with the process of making the decision, that is it’s reasoning or lack of it. It is concerned with perceptions or the propriety of an arbitrator/adjudicator making determination of a matter in the light of circumstances that a reasonable person perceived as compromising his/her partiality or impartiality.

Actions also speak louder than words. In my view this is an important public issue which had cried out for some considered solutions, particularly from the judiciary. An interim application implies urgency of action and it is therefore unacceptable that the Chief Justice took FOUR MONTHS to produce a decision on a matter which by judicial practice and tradition take no more than ONE WEEK to complete. Furthermore, publication of the written decision knowing full well that bias is not about what is written down in the decision but what is behind and not written down that cannot be ascertained from the written document is a smokescreen to fuzz the bias issue. The only comment of a legal nature that I wish to make regarding the written decision is that it is incomprehensible how the interim injunction could be considered on its own separate of the motion for the "enforcement of fundamental rights" – which is the substantive motion that contains the perpetual injunction of which an interim order was being sought, by the interim motion. No authority was cited by the Court to support such an inexplicable approach nor was the matter according to our lawyer raised by the Chief Justice as an issue to consider and make submission on as a matter of law.

Without the substantive application (the main motion and Statement of Claim) – that was ignored by the Chief Justice – an interim application has no basis to sustain a cause of action and would therefore fail; which it did. The Chief Justice therefore having chosen to ignore the main motion it was clear that his decision was going to be a rejection of the SDUP motion. Without an application for a perpetual injunction an application for an interim injunction could not be entertained, let alone be determined and rejected. It defies logic.

The Chief Justice is a professional and his chosen approach was not, in my view, an error or mistake, which judges sometimes make. It is thus very difficult to have any confidence that the Chief Justice will act justly, fairly and independently in the determination of the substantive hearing in this matter involving the SDUP. I therefore ask the Justice Department that in the interests of the rule of law and perceptions of justice, an expatriate justice should be commissioned urgently to determine this very important political issue being trampled upon by the corrupt "one party" HRPP government and now with the perception of collusion with the Chief Justice.

With regards to the future of the SDUP editorialised in your newspaper asking the question whereto next. We will continue to pursue our political goals and trust in the rule of law and the constitution of this country based on Christian principles and Samoan custom and tradition.

Asiata Saleimoa Va’ai

SDUP Leader"

26. In the above letter the reference to "HRPP" is conceded by the defendant to be, and is clearly, a reference to the governing party in Parliament, the Human Rights Protection Party. Accordingly, in relation to the second information there is no doubt about the words that were used by the defendant nor is there any doubt that the letter was sent by the defendant to the editor of the Sunday Samoan with the intention of it being published in the newspaper. The question to be then determined is whether the words used by the defendant amount to a contempt of court.

Contempt of Court is punishable under Samoan Law

27. An offence of contempt pursuant to the English Common law is punishable under Samoan law. Article 111 of the Constitutional of Samoa defines "law" as being:

"... any law for the time being in force in Samoa; and includes ...the English common law and equity for the time being in so far as they are not excluded by any other law in force in Samoa ..."

Furthermore section 7 of the Crimes Ordinance 1961 which provides that no-one shall be committed of any offence at common law, excludes expressly the power of the court to punish for contempt.

The intention of the defendant

28. As stated above, the prosecution must prove beyond reasonable doubt that the words used by the defendant were intended to be used by him and in the circumstances of this case as pleaded, were provided to the editor with the intention that they be published in the newspaper.

29. However, in my view, the weight of authority does not require proof beyond reasonable doubt of an actual intention to interfere with the administration of justice. Cases which support this view are to be found in the UK, Australia and New Zealand. In New Statesman (Editor) ex parte DPP [1928] TLR 301 at 303, Lord Hewart CJ accepted that the editor of the New Statesman did not intend to interfere with the administration of justice, but nevertheless found that he was in contempt by way of scandalising the court.

30. More recently in Ahnee v DPP [1999] UKPC 11; [1999] 2 AC 294 at 307 the Privy Council 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 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"

31. Likewise the New Zealand Court of Appeal in Solicitor – General v Radio Avon Ltd [1994] 1 NZLR 225 at 233 concluded that the need to protect the public interest in the administration of justice militated against introducing a "special requirement of mens rea into this one branch of the law of contempt".

32. In Hinch v Attorney- General [1987] HCA 56; [1987] 164 CLR 15, the High Court of Australia stated clearly that an intention to interfere with the administration of justice is not a necessary element of the offence of contempt.

33. Finally, the Court of Appeal of Western Samoa in Petaia v Supreme Court of Western Samoa [1990] WSCA 1 at 7 adopted a definition of contempt which does not require intention as a necessary element in the following terms:

"We adopt the general definition of contempt given in Halsbury 4th Edition Vol 7 paragraph 7:

"... words spoken or otherwise published, or acts done outside court which are intended or likely to interfere with or obstruct the fair administration of justice ..." (Emphasis added)

What constitutes conduct which scandalises the court?

34. Borrie & Lowe, "The law of Contempt" 3rd Ed at 340 observes that there are two recognised categories of publications which scandalise the court; those which impugn the integrity and partiality of the court and those which amount to scurrilous abuse. The second information alleges conduct on the part of the defendant which falls into the former category. The particulars of the alleged offence, as stated in the second information, rely upon four specific passages of the letter to the editor, and upon the letter "considered as a whole" to establish the contempt. I will return to those allegations after consideration of the general principles of this branch of the law of contempt.

35. First, it must be observed that great care must be taken before a finding of the existence of a contempt by scandalising the court is made. Indeed, and although as I have said already, I am satisfied that this form of contempt is known to the law in Samoa, New Zealand, Australia and the UK, it is nevertheless a "rarely encountered species of contempt". Re Colina: Ex parte Torney [1999] HCA 57; [1999] 200 CLR 386 per Callinan J at 439. Indeed in 1985 Lord Diplock remarked that contempt of scandalising the Court was "virtually obsolescent". - Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 as 347. Those latter remarks are reflective of the concern of the courts to ensure that this form of contempt is not used to interfere with freedom of speech, the accountability of the administration of justice and the right of members of the public to criticize decisions of the court.

36. As Lord Denning MR said R v Metropolitan Police Commission. Ex parte Blackburn (No 2) [1968] 2 QB 150 at 155 every person has the right:

"...to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not".

37. The above judgment of Lord Denning was cited with approval by Hope JA in Attorney – General (NSW) v Mundey [1972] 2 NSWLR 887 at 908.

"But criticism does not become contempt because it is wrong headed, or based on the mistaken view of the facts or of the law. Nor, in my opinion, need it be respectfully courteous or coolly unemotional. There is no more reason why the acts of courts should not be trenchantly criticised than the acts of other public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merit; they cannot be propped up if their conduct does not command respect and confidence; if their conduct justifies the respect and confidence of the community, they do not need the protection of special rules to shield them from criticism. Indeed informed criticism, whether from a legal or social or any other relevant point of view, would be of the greatest assistance to them in the performance of their function. However, the law has undoubtedly imposed qualifications on the right of criticism, and they are qualifications that relate to the effective performance by courts and judges of their role in the administration of justice. Unfortunately these qualifications are ones the boundaries of which are difficult to define with precision, and indeed in respect of which courts have from time to time had different attitudes".

38. R v Dunbabin; Ex parte Williams (1935) 33 CLR 434 at 442 Rich J outlined the essence of the offence of "scandalising the court" thus:

"Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office.

The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained"

39. In Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238 (which is an example of conduct held to amount to contempt by "scandalising the court") Gibbs CJ and Mason, Wilson and Brennan JJ said (at 243):

"The principles which govern that class of contempt of court which is constituted by imputations on courts or judges which are calculated to bring the court into contempt or lower its authority had been discussed by this Court in Bell v Stewart and R. v Fletcher; Ex parte Kisch before R. v Dunbabin; Ex parte Williams was decided, and the judgment of Rich J. in the last mentioned case is consistent with what had been said in the earlier decisions. The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principles 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 (at 247). 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". (Citations omitted.)

40. Fair criticisms of court decisions are lawful and for the public good as long as the facts forming the basis of the criticisms are stated accurately, and the criticisms are fair and not distorted by malice. R v Nicholls [1911] HCA 22; (1911) 12 CLR 280 at 286; R v Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248 per Evatt J at 257-258. Hence, a public comment made fairly on judicial conduct that is truly disreputable (in the sense that the judicial conduct in question would impair the confidence of the public in the competence or integrity of the court) is for the public benefit. R v Nicholls [1911] HCA 22; (1911) 12 CLR 280 per Griffith CJ and Barton and O’Connor JJ at 286. The contempt power is not exercised to vindicate the personal dignity of a judge but rather, to vindicate the integrity of the court. R v Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 per Rich J at 442.

41. With the above principles firmly in mind I turn to consider the individual passages of the letter sent to the editor of the Sunday Samoan upon which, as well as the letter in its entirety, the informant relies.

42. The second information alleges that the following words in paragraph 5 of the letter establish a contempt:

"Regrettably, judicial precedents and history testifies (sic) to the Chief Justice presiding over conflicts of interest situations which public interests demanded or cried out for abstention and disqualification – see Petaia v Sapulo 1990. This is most unfortunate in my view".

43. In giving evidence before me, the defendant said that the word "precedents" appearing above was "probably a mistake and it should have been singular rather than plural". It is clear that the letter was referring to a decision of the Court of Appeal of Western Samoa, Petaia v The Supreme Court of Western Samoa [1990] WSCA 1. That case involved an appeal by the editor of the Samoa Times newspaper to a finding by the then Acting Chief Justice that he had been in contempt of court in relation to an article which had been published referring to a "blatant case of conflict of interest" on the part of the then Acting Chief Justice. The Court of Appeal said "while the judgment of Sapolu ACJ inferred that the conduct of the editor could be characterised as scandalising either the court or himself, we reject such inference. The situation where the Acting Chief Justice simultaneously held Judicial Office, the appointment as Attorney – General; and as well retained his position as principal of his private legal firm of Sapolu and Co; cried out for public comment". In the circumstances of that case the Court of Appeal concluded that the fact that the "Acting Chief Justice should be questioned about the obvious conflicts was a natural consequence "of the fact that he held a number of offices which placed him in an "impossible situation". By reason of those facts the finding of contempt against the editor of the Samoa Times was set aside.

44. Counsel for the informant submits that the statement referred to above "goes beyond an allegation of perceived bias, and asserts in substance that the Chief Justice is a repeat offender in failing to disqualify himself from situations of actual conflict". He submits that this statement "clearly impugns the integrity and impartiality of the Chief Justice".

45. The question of whether the statements contained in paragraph 5 of the letter to the editor of the Sunday Samoan were calculated to bring the court into disrepute, by so impugning the integrity and impartiality of the Chief Justice, must be examined in the context of the above reported case, to which specific reference was made in the letter. In the end result and although, as conceded by the defendant the word "precedents" should not have been expressed in the plural, it does not appear to me that paragraph 5 of the letter, standing alone, can be said to be in contempt of court. In my view the statement did not impute improper motives to the Chief Justice. Allowing for the error conceded by the defendant I do not conclude that the statement was little more than a comment about a case which, although some years old, was on the public record.

46. As Lord Atkins said in Amband v Attorney- General for Trinidad and Tobago 1936 AC 322.

"... no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith the public act done in the seas of justice. The path of criticism is a public way: the wrong– headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny, and respectfully, even though outspoken, comments of ordinary men".

47. I turn now to paragraph 6 of the letter, upon which the informant relies as a specific instance of contempt. That paragraph stated:

"The Justice Department appears to believe that the answer to the allegation of bias is addressed by a publication of the written decision, which the Samoa Observer did in its 22nd of March 2007 issue. The written decision is only the process and no amount of rational reasoning in the decision could satisfy the issue of perception which is (sic) as I have said is separate from the process. It also does not exonerate a judicial violation nor infringement of the standards expected of the holder of the highest office in the land, next to the Head of State".

48. Standing alone the meaning of this paragraph is far from clear. Counsel for the informant argues that the last sentence of the paragraph "contains the vice of expressly alleging, in addition to circumstances which could raise an apprehension of bias, that the Chief Justice is guilty of a ‘judicial violation or infringement of the standards’ expected of him. Furthermore it is submitted that the defence of fair comment does not arise to assist the defendant in relation to that passage, rather the passage is characterised as being "a disappointed litigants vitriolic and groundless response to the judgment of the Chief Justice".

49. On one view, the statement that as a matter of principle, a written decision and "rational reasoning" in the decision, would not "exonerate a judicial violation or infringement of the standards expected" of a judge is hardly exceptional. When looked in the context of what had been said earlier in the letter it appears to me that the meaning of this paragraph is that a rational, reasoned decision does not remove the perception of bias which the defendant contended arose in the circumstances of the case. Earlier in the letter (in the second paragraph) the defendant had stated that the Chief Justice "as head of the Judiciary, must diligently adhere to the basic principle in the administration of the law that "Justice must not only be done, it must be seen to be done". No objection could be taken to that statement which might be said to be a "motherhood principle". See R v Sussex Justices [1923] EWHC KB 1; [1924] KB 256 at 259 per Lord Hewart CJ.

50. Having referred to that principle, the defendant then made a number of assertions of alleged fact in the third paragraph of the letter. The first was that it "was well known in political circles that the Chief Justice was the lawyer for the HRPP, and secondly, that his "political appointments to government posts were firstly to the Attorney General and later Chief Justice". Thirdly, he noted that in October 2006 the Samoa Observer had published a report of the opening of the "newly repaired – purported to have cost ‘close to a million tala’ – home of the Chief Justice" and that invitees to the opening of the house included the Prime Minister and the Speaker of the Parliament, whom he noted was the defendant in the proceedings about which complaint was being made. He noted that the Samoa Observer quoted the Chief Justice as thanking the "Government for honouring him with such a beautiful home". It was on the basis of these matters that the defendant asserted in paragraph 4 of his letter that "this ought to have been sufficient reason for the Chief Justice disqualifying himself from determining the SDUP claim."

51. It is perhaps appropriate to observe at this point that neither in the letter nor in his evidence before me did the defendant assert that there was any impropriety in the provision of the home to the Chief Justice. Indeed his evidence before me was to the effect that he had no knowledge of the statutory or other entitlements of the Chief Justice. Nevertheless, in his evidence he said that he considered the expenditure "extravagant" taking into account "that Samoa is a poor country".

52. However, the points about the house and about the Chief Justice’s alleged political connections were used in the letter to assert that "HRPP affiliation connections and fraternising ought to have compelled the Chief Justice to acknowledge that perception implications allegation (sic) of bias and favouritism would arise if he were to determine the SDUP claim".

53. On one view the above assertion could be seen to be unfair. The defendant made no effort to ascertain whether the provision of a house to the Chief Justice was an entirely justifiable entitlement pursuant to a transparent salary and conditions package, or otherwise. Had it been the fact that the house was provided by the Government to the Chief Justice in the absence of such a transparent emolument arrangement, the point being made by the defendant would have been one of real substance. However, in the absence of such evidence the complaint may be seen as being somewhat unfair and not a basis upon which the Chief Justice should disqualify himself.

54. Likewise the assertion that it was well known that the Chief Justice "was the lawyer" for the HRPP, would not by itself, require the Chief Justice to disqualify himself. The fact that a judge has, as a lawyer, acted previously for a particular litigant does not automatically call for disqualification. Of course, in some circumstances, it will be prudent for that fact to be declared by the judge so as to enable the parties to make appropriate submission in respect of the matter, and/or to put the previous relationship on the record as a matter of transparency. As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they may be potentially disqualified. It is common, and proper, practice for a judge who owns shares in a company which is involved in a case in which the judge is sitting to inform the parties of that fact and to give them an opportunity to raise an objection should they wish to be heard. In most cases, the outcome is that no objection is raised and, by reason of waiver, any potential problem disappears. One reason for the practice is that it gives the parties an opportunity to bring to the attention of the judge some aspect of the case, or of its possible consequences, not known to, or fully appreciated by, the judge.

55. In some circumstances (in my experience rarely) and by reason of the nature of the previous retainer, and/or by reason of the circumstances of a particular case in which the judge was involved previously as a lawyer, it may indeed be necessary for a judge to disqualify himself. However, the mere fact that the Chief Justice may have acted previously for the HRPP as a lawyer did not by itself call for his disqualification. One would expect that the defendant, being a lawyer himself, would well understand that.

56. The fact that the Chief Justice had been appointed by the Head of State to the post of Attorney General and later as Chief Justice likewise did not require the Chief Justice to disqualify himself. Each of those positions is independent of the legislature and of the executive. See Articles 41 and 65 of the Constitution of the State of Samoa. The fact that a judge has held such appointments pursuant to the Constitution cannot possibly be a basis for disqualification on the ground of apprehended bias.

57. However, because the issue of apprehended bias was raised by the defendant in his letter, and repeated in his evidence before me as being a justified perception, and because in the circumstances pertaining in Samoa, the possibility of questions of disqualification arising may not be remote, it is appropriate to consider the issue of the circumstances under which the apprehension of bias principle might arise.

58. It should be observed that there is a difference in approach between the courts of Australia and New Zealand on the one hand, and English courts on the other, as to the appropriate test. The High Court of Australia has stated that where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge the proper test is whether fair-minded people might reasonably apprehend or suspect that a judge has prejudged or might pre-judge the case. See Webb v The Queen [1994] HCA 30; (1984) 181 CLR 41 at 47 and the cases therein cited. Put another way, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 339. New Zealand courts have applied the reasonable apprehension or reasonable suspicion test where bias on the part of a juror is alleged. R v. Papadopoulos (No.2) [1979] NZCA 64; (1979) 1 NZLR 629 at 634; R v. McCallum and Woodhouse [1988] NZCA 336; (1988) 3 CRNZ 376; R v. Te Pou (1992) 1 NZLR 522 at 527.

59. However, the English courts have stated that the appropriate test has a higher threshold; ie. whether there is a "real danger of bias". In R v Gough [1993] UKHL 1; (1993) AC 646 at 670, Lord Goff stated the test in England to be as follows:

"(H)aving ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration".

60. The English approach was restated in Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] 1 All ER 65 at 73, in the following terms:

"In practice, the most effective guarantee of the fundamental right [to a hearing before an impartial tribunal] is afforded not ... by the rules which provide for disqualification on grounds of actual bias, nor by those which provide for automatic disqualification, because automatic disqualification on grounds of personal interest is extremely rare and judges routinely take care to disqualify themselves, in advance of any hearing, in any case where a personal interest could be thought to arise. The most effective protection of the right is in practice afforded by a rule which provides for the disqualification of a judge, and the setting aside of a decision, if on examination of all the relevant circumstances the court concludes that there was a real danger (or possibility) of bias."

61. However, notwithstanding Australian and New Zealand authority the test to be applied in Samoa has been stated to be the ‘real danger of bias’ test. In Sonny Stehlin v Police (1993) (Unreported judgment of the Court of Appeal) Cooke P in delivering the judgment of the Court of Appeal said:

"The doctrine of disqualification for alleged bias has to be applied somewhat robustly in a jurisdiction the size of Western Samoa. Indeed, the present tendency of case law around the world, including a recent decision of the House of Lords (R v Gough [1993] UKHL 1; [1993] 2 All ER 724) is in the direction of robustness in this regard.

62. In Faasootauloa Pati v Charlie Westerlund (2000) (Unreported Supreme Court of Samoa) the Chief Justice accepted and applied the real danger of bias test. Furthermore, in Peniamina v The Land and Titles Court (Unreported 6 December 2004) Casey J in delivering the judgment of Court of Appeal of Samoa stated that the "Chief Justice correctly adopted the approach advocated by Lord Goff in R v Gough ...asking whether, in the relevant circumstances disclosed ... there was a real danger of bias on the part of the Judge.

63. In Webb v The Queen (ibid at) Deane J discussed the principle of disqualification by reason of apprehended bias in some detail. He stated that there were at least four distinct, though sometimes overlapping, main categories of such cases. He said:

The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings.) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third e.g., a case where a judge is disqualified by reason of having heard some earlier case: see, e.g., Livesey v. New South Wales Bar Association ([1983] HCA 17; 1983) 151 CLR 288; Australian National Industries v. Spedley Securities (1992) 26 NSWLR 411 and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.

64. The third category referred to by Deane J in the preceding paragraph is the category relied upon by the defendant in his letter as establishing the requirement that the Chief Justice should have disqualified himself. He said that there was no need for the Chief Justice "to be asked to step down or to disqualify himself; the situation called and cried out for his non–involvement in the matter".

65. In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [8], Gleeson CJ, McHugh, Gummow, and Hayne JJ said:

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

66. The defendant in his letter set out the matters upon which he relied as establishing apprehended bias on the part of the Chief Justice. I have summarised those matters in paragraph 49 above. However, as explained above, I do not consider that the defendant’s letter articulated a logical connection between the matters raised by the defendant and the ‘feared deviation’ by the Chief Justice from deciding the case on its merits. Nor do I consider that that the facts stated by the defendant, as opposed to what might be insinuated from them, are such that the fair minded and informed lay observer would reasonably suspect that the Chief Justice would decide the case otherwise than on its merits. Certainly I do not conclude that those facts establish a real danger of bias in accordance with the approach of the English Courts which has found favour in the decisions of the Supreme Court of Samoa.

67. Neither did the letter written by the defendant make any allowance for, or discuss, the particular and relevant circumstances which may arise in Samoa. In giving evidence before me the defendant conceded that the two other permanent judges of the Supreme Court of Samoa would have most likely been disqualified from hearing the case by reason of family association with him. In such circumstances, as the defendant conceded, it was almost inevitable that the Chief Justice would be the judge allocated to hear the application for injunctive relief, which of course was said by the defendant, to be of urgency. The principles to be applied were articulated with clarity by the majority in Ebner at [19] and [20] as follows:

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

68. The above observation is particularly relevant to the circumstances which apply in the Supreme Court of Samoa, which has three permanent judges, who may be supported on relatively rare occasions only, by the appointment of an acting judge from another jurisdiction.

69. Indeed, it might well be argued that in some circumstances in the Supreme Court of Samoa, and an application for interim injunctive relief could well be argued to be one of them, the doctrine of necessity may apply even if a perception of bias could be established to exist. In Peniamina v The Land and Titles Court the Court of Appeal of Samoa expressly approved the application of the doctrine of necessity in the circumstances of that case. The learned authors of Judicial Review of Administrative Action (5th ed.), De Smith, Woolf and Jowell at4p.544 state the following:

"A person who is subject to disqualification at common law may be required to decide the matter if there is no other cont tribunal or if a quorum cannot be formed without him. Hem. Here the doctrine necessity is applied to prevent a failure of justice."

70. Sir William Wade in the 7th edition of his work: Administrative Law at p.476 expressed the principle as follows:

"In all the cases so far mentioned the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply. But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down."

71. Obviously the doctrine does not apply where it is not necessary that the disqualified person or entity should make the decision. Hence if it is possible, and practicable, to appoint another person or entity to make the decision then the doctrine does not apply. However, this is not an inflexible rule and there may be circumstances where the doctrine should apply because not to do so, would result in enormous cost or substantial delay. See observations of Lord Brougham in Thellusson v. Rendlesham [1859] EngR 741; (1859) 7 H.L.Cas. 429 at 430-31; [1859] EngR 741; 11 E.R. 172 at 173. I raise this matter to demonstrate that the letter to the editor, which it must be remembered was written by a well experienced and qualified lawyer, may be seen to have been deficient in its consideration of the issues which related to the hearing of the application for interim relief. A full and fair discussion of the issues which concerned the defendant may well have included discussion of the above issues.

72. Furthermore, the assertion that the Chief Justice had political connections prior to holding office as Chief Justice and the fact that he had the Prime Minister and the Speaker to his home in October 2006 (and publicly so), and prior to the issuing of the proceedings in question, would appear to ignore the realities of life in a small community. In a country the size of Samoa, and indeed in much larger countries, it is inevitable that the head of jurisdiction will have associations of varying degrees with leading dignitaries in the community, including members of the Executive. In addition, and perhaps remarkably, no application was made by the defendant to the Chief Justice to recuse himself from hearing the proceedings. The letter may have been regarded as more balanced and fair had such an application been made to the Chief Justice and refused with or without reason.

73. A further assertion which may be seen as being unfair was made in the letter that the Chief Justice took "FOUR MONTHS" to produce a decision "which by judicial practice and tradition take no more than ONE WEEK to complete". In fact the written decision handed down by the Chief Justice on 12 March 2007 made it clear as to why it took four months from the date of the commencement of proceedings until delivery of the judgment. First, the plaintiffs in the proceeding had sought an ex parte injunction. Not surprisingly, taking into account the mandatory nature of the order sought against the Speaker of the house, on 14 December 2007 the Court ordered that the defendant be served with the notice of motion. The matter was listed for mention on 19 December 2006 when counsel appeared on behalf of the Speaker and informed the Court that the plaintiffs’ motion was opposed. The matter was then adjourned to 22 January 2008, being the earliest available date after the Christmas break. Proceedings were then adjourned to enable both counsel to file written submissions. Soon thereafter two of the named plaintiffs advised the Court that they did not wish to be parties to the proceedings, they having resigned as members of the SDUP. A mention was then arranged for 7 February 2008, but counsel for the plaintiffs was unable to attend. A further mention was then fixed for 8 February 2008 at which counsel for the plaintiffs was again unable to attend. The Chief Justice then directed the matter to be taken out of the list and no further action to take place until counsel for the plaintiffs became available. On 2 March 2008 counsel for the plaintiffs and counsel for the Attorney General met with the Chief Justice in Chambers. The matter was then adjourned to 6 March 2008 to enable counsel for the plaintiffs to obtain instructions as to the matter of the two named plaintiffs who wished to withdraw from the proceedings, and for counsel for the plaintiffs to provide any relevant case law upon which he relied. That afternoon the plaintiffs filed a memorandum making "further submission to the effect that the plaintiffs’ proceedings raise a serious question to be tried". No relevant case law was filed. Judgment was handed down on 12 March 2008. In all the above circumstances, the assertion that the Chief Justice took four months to "produce a decision" might be seen as being unfair. The reasons for the delay between the commencement of the proceeding and the publication of the judgment were spelt out with clarity in the judgment of the Chief Justice. In particular, the fact that the order sought was ex parte, the fact that two named plaintiffs sought to withdraw from the proceeding and the fact that counsel for the plaintiffs became unavailable at various times, all appear to be relevant to the delay.

74. I have referred to much of the relevant parts of the letter to the editor, and the issues which arise in respect thereof so as to put paragraph 6 into some context. It may be that the defendant intended, and that some who read the article would conclude, that the Chief Justice had committed a "judicial violation or infringement" by "not acknowledging that perception implications allegation of bias and favouritism would arise" in circumstances whereby he did not recuse himself from hearing the SDUP case. As I have pointed out above, a number of aspects of the letter might be said to be unfair criticism of the Chief Justice and/or of his published judgment particularly in the light of the fact that the defendant is a lawyer and could be expected to have some understanding of the legal basis of the doctrine of disqualification by reason of apprehended bias. However, the fact that a criticism of a decision of a court might be couched in unfair terms does not, regrettable as the criticism might be, establish contempt. As said by their Lordships in the Privy Council case of Ahnee v Director of Public Prosecution [1999] UKPC 11; [1999] 2 AC 294 the offence of contempt by scandalising the court is an offence which is to be narrowly defined.

75. Their Lordships said further at 306:

"There must be a real risk of undermining public confidence in the administration of justice. The field of application of the offence is also narrowed by the need in a democratic society for public scrutiny of the conduct of judges, and for the right of citizens to comment on matters of public concern. There is available to a defendant a defence based on the "right of criticising, in good faith, in private or public, the public act done in the seat of justice" ......... Given the narrow scope of the offence of scandalising the court, their Lordships are satisfied that the constitutional criterion that it must be necessary in a democratic society is in principle made out".

76. In all the circumstances I am not satisfied that paragraph 6 of the letter, standing alone can be said to be contempt of the nature now under consideration. The latter sentence of the paragraph stated a principle and did not contain an accusation against the Chief Justice. It did not, as is submitted on behalf of the informant, expressly allege misconduct on the part of the Chief Justice. Indeed as submitted by counsel for the informant, resort has to be made to the drawing of an inference to ascertain the meaning of the words used. Counsel for the informant submits that "It is a reasonable inference that the defendant intended to refer to the failure of the Judge to recuse himself, notwithstanding the absence of any application in that regard. However the words used fail to make that clear." I agree that that may have been the intention of the defendant but I also agree that the words used did not make that clear. However the relevant issue is what the words actually said and whether or not those words were likely to interfere with or obstruct the fair administration of justice. Whilst, by reference to what was said earlier, it may be inferred to be a criticism of the Chief Justice I must be satisfied beyond reasonable doubt that the words used created a real risk of undermining public confidence in the administration of justice. The fact that inference is required to establish the contempt alleged, and the fact that the actual words used need to be interpreted in a particular manner to establish the contempt do not assist in establishing that there was such a real risk.

77. I turn now to paragraph 8 of the letter upon which the informant relies as establishing a contempt on the part of the defendant. It contained the following words:

"Without the substantive application (the main motion and Statement of Claim) - that was ignored by the Chief Justice - an interim application has no basis to sustain a cause of action and would therefore fail; which it did. The Chief Justice therefore having chosen to ignore the main motion it was clear that his decision was going to be a rejection of the SDUP motion. Without an application for a perpetual injunction an application for an interim injunction could not be entertained, let alone determined and rejected. It defies logic". (Emphasis added).

78. I suspect that most readers of the Samoa Observer would have considerable difficulty in understanding the above passage, as indeed do I. However, the gravamen of the complaint advanced on behalf of the informant is that the words "ignored" and "chosen to ignore" reflect bias on the part of the Chief Justice. However, the fact is that his Honour did not deal with the "main motion". More to the point, he quite deliberately did not deal with the substantive application. He explained why in the following terms:

"On 8 December 2006, the first plaintiff, the Samoa Democratic United Party (SDUP), and the second plaintiffs who are/were its members filed an ex parte motion for an interim injunction. The purpose of the interim injunction sought in the plaintiffs motion is to restrain the defendant, the Honourable Speaker of the Legislative Assembly, from not recognizing the first plaintiff as a political party in Parliament and the second plaintiffs as its members in Parliament pursuant to an announcement made by the Speaker in Parliament on 13 November 2006. Another motion was filed by the plaintiffs on 8 December 2006 for the enforcement of certain fundamental rights provided in the Constitution but that separate motion was not the subject of these proceedings which is for an interim injunction. The Court is therefore not concerned with the plaintiffs motion for the enforcement of fundamental rights in these proceedings.

79. Paragraph 8 of the letter may be said to fail to reflect fairly what it was that the Chief Justice said in his judgment. It may reflect a misunderstanding on the part of the defendant as to the reasoning expressed by the Chief Justice as to why he was not dealing with the principal application, or indeed a complaint that the Chief Justice was in error, but in my view that is not sufficient to establish that the paragraph was calculated to undermine the authority of the Court, at least not to the requisite standard of beyond reasonable doubt.

80. I turn now to paragraph 9 of the letter upon which the informant relies as establishing a contempt on the part of the defendant. That paragraph was as follows:

"The Chief Justice is a professional and the chosen approach was not, in my view, an error or a mistake, which judges sometimes make. It is then very difficult to have any confidence that the Chief Justice will act justly, fairly and independently in the determination of the substantive hearing in this matter involving the SDUP. I therefore ask the Justice Department that in the interests of the rule of law and perceptions of justice, an expatriate justice should be commissioned urgently to determine this very important political issue being trampled upon by the corrupt "one party" HRPP government and now with the perception of collusion with the Chief Justice".

81. From an impartial perspective, the above statement can be read only as an imputation of improper motives on the part of the Chief Justice. The statement that it is "very difficult to have any confidence that the Chief Justice will act justly, fairly and independently" in the determination of the case, is a most serious allegation. Considered both in isolation, and in conjunction with the whole of the letter, the only meaning of those words which is open is that by reason of his alleged connections with the HRPP and by reason of him having not dealt with the substantive application at the same as the interim injunction application, the Chief Justice would not (or at the minimum, is unlikely to) bring a just, fair and independent mind to the determination of the proceedings. The assertion that that there was "the perception of collusion" between the Chief Justice and the "corrupt ‘one party’ HRPP government" was baseless. The matters raised previously in the letter did not provide any basis for the assertion of any such perception.

82. As stated in Ahnee v DPP at 306, the "classic illustration" of the offence of scandalising the court "is the imputation of improper motives to a judge". Indeed, their Lordships observed that "the need for such an offence on a small island is greater". Of course they were referring to the island of Mauritius and not Samoa, but the imputation of improper motives against the Chief Justice of a very small Supreme Court can be anticipated to have considerable weight in undermining the whole of the Court.

83. In giving evidence in his defence, and on numerous occasions, the defendant stated that things that he had said in the letter were merely his perception, or alternatively reflected "a perception that could be drawn from what happened". He said in evidence in chief that his intention in writing the letter was to "address two problems". He said:

"I saw one issue of recognition and one of the rule of law; .... The letter or what was published in the Observer clearly happened; I have referred to a previous court case that his Honour had been involved in for reasons of conflict of interest and I referred to the decision itself and how it was arrived at. To the perception then, in my view, it was then that there was bias and I called for an overseas judge in my view, because I had on several occasions spoken in Parliament and expressed the view that our Supreme Court needs a European judge. Because Samoa is a big family and everybody is connected in some way or another. So that is why this issue, as far as I saw it, the conflict of interest could be avoided by the commissioning of an overseas judge to hear the case. Then I say in the letter, now because of those reasons I form these (sic) from the point of view of our party; I would have no confidence that our matter could be fairly determined any further by the Chief Justice. So that is essentially what my letter addressed and at the end, I referred to the editorial that was published on the 22nd where the editor had asked the questions about SDUP – where to next? And so I made reference to that, I said: as far as I am concerned we keep carrying on under the rule of law. I certainly wasn’t attacking the administration of justice. I was critical in my views and my perceptions of the Honourable Chief Justice, but I believe that my views were valid, were not baseless, and were justified."

The submissions of the defendant as to the second information

84. The first submission made on behalf of the defendant is that the informant failed to establish that the letter to the editor was likely to interfere with the proper or fair administration of justice. Counsel for the defendant relies upon Solicitor – General v Radio New Zealand [1993] NZHC 423; [1994] 1 NZLR 48 at 56 when it was said that "... the Court must consider all the circumstances of the publication. ... Relevant factors include the statements published, the timing of their publication, the size of the audience they reached, the likely nature, impact and duration of their influence". In this context, it is submitted that the ordinary, reasonable English speaking Samoan would not have had their confidence in the administration of justice undermined by the letter to the editor.

85. First, it is submitted that a reasonable English – speaking Samoan person would not understand the letter, containing as it does "legal points, legal jargon, technical language, perceptions, not the simplest English, complex vocabulary". It is thus contended that such reasonable reader would not have formed an adverse view of the administration of justice because the letter was difficult to read, and to understand, and thus there was no real risk of an interference with the administration of justice.

86. Secondly it is submitted on behalf of the defendant that the letter was written as an act of free speech, contained genuine criticism, was written in good faith, and was true, informed and constructive and contained fair comment. For the above reasons it is argued that the charge contained in the second information has not been made out beyond reasonable doubt, or in the alternative that the defendant has a good defence to the charge.

The submission of the informant as to the second information

87. As stated above the informant submits that the contents of each of paragraphs 5, 6, 8 and 9 of the letter, and collectively together with the contents of the whole of the letter have the inherent tendency to impair the confidence of the people in the Supreme Court of Samoa. I have dealt already with paragraphs 5, 6 and 8 and concluded that I cannot be satisfied beyond reasonable doubt that the publication of those particular paragraphs establishes the contempt alleged against the defendant. However, the submissions of the informant as to paragraph 9 are that the assertions made by the defendant that:

"... the Chief Justice is a professional and his chosen approach was not, in my view, an error or mistake, which sometimes judges make. It is thus very difficult to have any confidence that the Chief Justice will act justly, fairly and independently in the determination of the substantive hearing in this matter involving the SDUP."

is a clear contempt. It is submitted that this passage removes any doubt as to the position taken by the defendant. The conduct referred to in paragraph 8 of the letter is referred to as the "chosen approach" of the Chief Justice and not an error or mistake. It is submitted that by necessary implication, the conduct of the Chief Justice complained of was that he intentionally chose a path of legal error, to achieve the result of the rejection of the SDUP motion for interim relief and for that reason the expressed difficulty in having any confidence in the Chief Justice acting justly, fairly and independently in the substantive hearing arose.

Conclusion

88. Whilst it is true that much of the letter was couched in terms of perception and therefore to some degree may be regarded as being fair comment, the assertion that by reason of his "ignoring" the motion dealing with the substantive motion, a lack of confidence arose in the capacity of the Chief Justice to act justly, fairly and independently in the case was an unwarranted assertion. It was not fair comment nor can it be said to be constructive, reasoned or informed.

89. Paragraph 9 contained a clear and unequivocal assertion that on the basis of his decision of 12 April 2007 there can be little confidence that the Chief Justice will act impartially in the determination of the substantive proceeding. As Hope JA stated in Attorney General of NSW v Mundey at 910 – 911:

"... it may and generally will constitute contempt to make unjustified allegations that a judge has been affected by some personal bias against a party, or has acted male fide, or has failed to act with the impartiality required of the judicial office".

90. The assertion made above was made in a considered letter, written by a well qualified, well-known lawyer and politician. In my view this is a relevant matter to the consideration of whether the words used constitute a contempt of court. The public and political status of the defendant at the time of writing his letter is such that the intended audience, the readers of the Sunday Samoan would be likely to attribute weight and substance to it.

91. In all the circumstances I am satisfied beyond reasonable doubt that the assertion contained in paragraph 9 of the letter to the editor of the Sunday Samoan was a statement calculated objectively to detract from the authority and influence of judicial determinations. It was a publication that I am satisfied to the requisite standard was "calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the court as a whole or that of its judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial office". R v Dunbabin [1935] 53 CLR at 442 per Rich J. Although I accept that some readers of the letter may have found parts of it difficult to understand, as is submitted on behalf of the defendant, I am nevertheless satisfied that the reasonable English speaking reader of the Sunday Samoan would understand clearly that what was stated in paragraph 9 of the letter reflected a lack of confidence that the Chief Justice would act justly, fairly and independently in the determination of the SDUP case. It thus excited misgivings as to the integrity, propriety and impartiality of the Chief Justice and did so with no reasonable basis. It cannot be said that it was fair comment or that it was warranted in all the circumstances. It may have been the opinion of the defendant that the Chief Justice would not bring an impartial mind to bear upon the case but there was no proper basis upon which that assertion could be made publicly. It may have been the opinion of the defendant that the Chief Justice should have dealt with the substantive application at the same time as the motion for injunctive relief but that did not justify the assertion that because he did not do so he would not act justly, fairly and independently in the hearing of the substantive application.

92. It follows that the offence of contempt of court alleged by the second information is proved.

HONOURABLE JUSTICE KELLAM