Attorney General v Vaai [2009] WSSC 48 (6 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
Sentence: 6 May 2009

SENTENCE BY JUSTICE KELLAM

1. I have found the defendant guilty on one charge of contempt by scandalising the Court.

2. The contempt in this case related to a letter which the defendant wrote to the editor of the Sunday Samoa newspaper and which was published by that newspaper on 25 March 2007.

3. As stated in my written judgment in the principal proceeding the letter in question contained an assertion that it was difficult to have any confidence that the Chief Justice would act justly, fairly and independently in the particular proceeding to which the defendant referred in his letter.

4. As I have held and for the reasons expressed by me, that assertion was, on the basis relied upon by the defendant, a totally unwarranted assertion. It was not fair comment, nor was it in any way constructive, reasoned or informed.

5. Furthermore, as I have already stated, the assertion was made by a senior lawyer and politician. The assertion was not made by a disappointed lay litigant upon walking out of court and in the heat of the moment which serious as it might be would nevertheless be understandable. Rather, it was contained in a letter which was clearly a considered document written by the defendant with the full intention that it be re-published to the public at large by the newspaper in question. I have previously stated that I am satisfied beyond reasonable doubt that the relevant part of the letter was objectively calculated to impair the confidence of the people in the judgments of the Chief Justice, and thus in the judgments of the court. The relevant part of the letter was objectively aimed to excite misgivings on the part of the public as to the integrity, propriety and impartiality of the Chief Justice in the exercise of his judicial office.

6. As the informant properly submits, this is a serious example of the offence of contempt by scandalising the court. There are a number of aggravating circumstances. As stated above, the letter written to the editor was obviously a considered document. It was written by a senior lawyer and parliamentarian, who it must be concluded, would have no misunderstanding as to his obligations as an officer of the court. Furthermore in the course of giving evidence, the defendant demonstrated no sign of remorse saying as he did. "I was critical in my views and in my perceptions of the Honourable Chief Justice, but I believe that my views were valid, were not baseless, and were justified". I am unable to understand how a senior lawyer could, on the basis relied upon by him in his letter, contend seriously that was so. I am completely satisfied that his views were to the contrary, invalid, baseless and not justified in any way.

7. As Eames J said in R v Hoser [2001] VSC 80 at [8] to [10]

"Contempt proceedings are not brought in order to soothe hurt feelings of judges or magistrates. The enforcement of the contempt power is for the benefit of the community, not the judges or magistrates. The rule of law depends, to a substantival degree, on public trust in the integrity and impartiality of its judicial officers".

"From time to time judicial officers may make decisions which are wrong or unfair, and the appeal system is intended to correct injustice. No-one would pretend that the appeal system is infallible, and the system of law in a democracy must allow for close scrutiny and robust criticism of the failings of the system. But no system of justice can be unaffected by baseless and malicious allegations of bias and impropriety made against judicial officers who, by virtue of their position, are unable to respond to the criticism. People who make such baseless criticism are not performing a public service. They are undermining a vital public institution".

8. Clearly in my view, the primary motive of the defendant in making his baseless allegations against the Chief Justice was not the public interest. However, the prosecution do not assert that his statements were made maliciously. Although, I do have difficulty in understanding how a senior lawyer could consider that the allegation made by him had a proper basis, I am not satisfied beyond reasonable doubt that the allegation was born of malice. Rather it appears likely to me to be, to adopt a submission made by Mr Langmead of counsel for the informant, "more aptly characterised as a disappointed litigant’s vitriolic and groundless response to the judgment".

9. However, the absence of the aggravating factor of malice does not mean that the contempt is nevertheless not serious. On any view the assertions made, as they were by a senior lawyer and officer of the court, were reckless, disgraceful and contumelious.

I turn now to the matters put before me in mitigation

10. The defendant who is nearly 64 years of age is a married man with four children. He was one of the first Samoan persons admitted to practice at the Bar of Samoa. He has practised law for over 30 years. He is a long serving member of the Law Society of Samoa having served as President in the 1980’s. He has been a Member of Parliament for over ten years and has been engaged in political life in Samoa for many years. I accept that he is a well-respected member and Matai of the Samoan community. He has no prior convictions.

11. It is argued on his behalf that the letter was written at a time of "political turmoil" and it is pointed out that the finding of contempt related to one paragraph only of the letter. The latter argument is indeed so, although it ignores much of what was said in my judgment as to unwarranted, and unfair assertions contained in the balance of the letter which do the defendant no credit. It is further argued on his behalf that he had no intention to impugn the impartiality of the court and it is submitted that the language of English being his second language some allowance should be made for the fact that the words used by him did not reflect any such intention. I am not convinced beyond reasonable doubt that the defendant directly intended to impugn the integrity of the court but I am satisfied to that standard that by using the words he did he was reckless as to whether he did so or not. He is an intelligent man with a legal background. Mature and insightful refection on what he had written should have revealed at least the risk of committing a contempt. However as stated I do not find his contempt to be intentional.

12. There are three other significant matters of mitigation.

13. The first of those matters is that taking into account this is a summary proceeding there has been an inordinate delay between the date of the act of contempt, the filing of the information and the matter being determined. I do not attribute blame to any party in this regard, the cause no doubt being in principal by reason of the requirement to have an overseas judge sit. Nevertheless the fact is that since August of 2007 the defendant has had the prospect of these proceedings hanging over his head. I accept the submission that that has been an ordeal for him.

14. The second matter which is of some significance is that the defendant was the only person charged with the offence. There is no evidence that he was "targeted" as was submitted, perhaps in loose language, by his counsel. It may well have been that he was perceived by the informant as being the principal offender, being the author of the letter, but I can understand that the defendant could hold a sense of grievance that he alone was charged with the offence.

15. The third matter of considerable weight is that through his counsel the defendant in open court made the following apology "A very sincere and very humble apology to the Chief Justice of Samoa, the Supreme Court itself and to the public". Taking into account, the previous background of the defendant, his high standing as a member of the Samoan Community, and what it was that the defendant said on oath as to his religious convictions when giving evidence before me, I do accept that the apology is given in contrite and sincere humility. Late as the apology undoubtedly is, the fact that counsel stated that the defendant "unreservedly apologised" in the terms set out above is a matter of significance.

16. Counsel for the defendant has urged upon me a disposition which would not result in a conviction being registered against the defendant. She submits that the finding of guilt which has already been made "brought shame to him, to his family and to his constituents". She submits that an appropriate disposition in all the circumstances is a disposition under s.104 of the Criminal Procedure Act 1972 which reads as follows:

104. Power of Court to discharge defendant without conviction or sentence –

(1). if, after inquiry into the circumstances of the case, any Court having jurisdiction to try any person for any offence is of the opinion that, although the charge is proved:

(a). The offence was in the particular circumstances of so trifling a nature that it is inexpedient to inflict any punishment or any other than a nominal punishment; or

(b). Having regard to the age or some other special circumstance of the offender, the entering of a conviction would of itself be a hardship out of proportion to the particular circumstances of the offence committed; it may discharge that person without convicting him, unless a minimum penalty is expressly provided for the offence by any enactment".

I should make it clear that I certainly do not consider the offence to be trifling or in any way warranting a nominal punishment.

17. There can be no doubt that such disposition would be merciful indeed taking into account the seriousness of the contempt. That said however, a relevant matter arises by reason of s.104 (6) of the Act which states:

"A Court discharging any person under this section may, if it is satisfied that the charge is proved against him, make any order for the payment of costs, damages, or compensation, or for the restitution of any property, that it could have made under any enactment applicable to the offence with which he is charged if it had convicted and sentenced him, and the provision of every such enactment shall apply accordingly".

18. It is appropriate to note that the Informant "strongly opposes" such a disposition, and although imprisonment is not sought, it is submitted that a substantial fine and an order for indemnity costs should be imposed upon the defendant. There is weight in the argument of the informant that the seniority of the defendant as a lawyer and the culpability that such seniority brings to this particular offence calls for such a disposition.

19. I have given careful consideration to the balance of interests, which are before me. On the one hand a most serious contempt has been committed by a senior lawyer and parliamentarian and a prosecution has properly been brought in the case of information 388/07, to protect the public interest in the administration of justice. On the other hand, I have before me a man in the autumn of his years who has led an unblemished and public life. There remains a possibility at least that the Law Society will consider it appropriate to take disciplinary action against the defendant on the basis of the finding of guilt already made by me. I make no comment as to whether that is or not appropriate. Nevertheless, the fact of that possibility is conceded by the informant to be a matter of relevance to the penalty, and if it does occur may prove to be a significant extra burden upon the defendant.

20. Finally, there is the matter of the unreserved public apology announced in Court this morning. Just as the high profile of the defendant is a relevant matter in terms of culpability in the circumstances of this case, so it is relevant to the weight of the apology. The nature of the apology reflects the submissions made by counsel that the guilty verdict has brought shame upon the defendant. In my view that factor is most relevant in terms of the imposition of a merciful disposition. Just as I concluded that the words used by the defendant in his letter were calculated to lower the authority of the Court and excite misgivings as to its integrity and impartiality, so such a public apology by a public figure of the dimension of the defendant can be said to reflect confidence in the Court and to reflect a respect for the integrity, propriety and impartiality of the Court. In my view a merciful sentence does likewise.

21. For the above reasons, I consider that taking into account the age and background of the defendant and the special circumstances referred to above including the fact than an order of costs will be made against him which will be a substantial penalty in itself, it is appropriate to find the charge of contempt proven, but to discharge the defendant without conviction.

22. I turn now to the question of costs. As stated above the second information was properly brought to protect the public interest in the administration of justice. The imposition of costs in contempt cases is, as is submitted by the informant, part of the punishment. Were it not for the fact that I dismissed information 387/07 I would have ordered that costs be paid by the defendant on an indemnity basis. However in the circumstances I consider that the appropriate order is that the costs and disbursement incurred by the informant in relation to the prosecution of information 388/07 be fixed by the Registrar as between solicitor and own client, and be paid by the defendant. It will be a matter for the Registrar to determine what costs and disbursement or what proportions of such costs fairly relate to this information.

HONOURABLE JUSTICE KELLAM

Addendum added 7 May 2009

The above sets out the precise wording of the sentence read out in court. However it is appropriate to add that in my handwritten draft, I had added a further two sentences to paragraph 19. They were as follows: "Furthermore the defendant is a Parliamentarian and may be require to engage in international travel. It is well known that many countries require declaration of any convictions and that may cause additional burden to him". In the exigency of available time to deal with the matter, and in error, these sentences did not appear in the final draft, nor were they read out by me in delivering sentence.

Kellam J