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State v Fiji Times Ltd, ex parte Attorney General [2012] FJHC 1347; Civil Action 343.2011 (1 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
ACTION NO. 343 of 2011

THE STATE

-v-

FIJI TIMES LIMITED, BRIAN
O'FLAHERTY and FRED WESLEY.
Respondents

EX PARTE : THE ATTORNEY-GENERAL OF FIJI

Applicant

Mr S Sharma with Ms M Devi for the Applicant
Mr J Miles QC with Mr J Apted for the Respondents

JUDGMENT

On 10 November 2011 the Attorney-General (the Applicant) sought leave ex parte to apply for an order of committal against the Fiji Times Limited, Brian O'Flaherty and Fred Wesley (the Respondents). The application was made under Order 52 Rule 2 of the High Court Rules.

Under Order 52 Rule 2 (2) the ex parte application for leave must be supported by a statement setting out (i) the name and description of the applicant, (ii) the names and addresses of the persons sought to be committed and (iii) the grounds on which their committal is sought.

The Statement filed by the Applicant on 10 November 2011 alleged that words and the statement published in the Fiji Times on Monday 7 November 2011 under the heading "FIFA probes DOC" including the words "You should be aware that with no judiciary there, his case has been reviewed by one Australian judge. It's not a court per se", scandalise the Court and the judiciary in Fiji in that they are a scurrilous attack on the judiciary and the members of the judiciary, thereby lowering the authority of the judiciary and the Court.

The application was supported by an affidavit sworn by Aiyaz Sayed-Khaiyum on 9 November 2011 verifying the facts relied on and set out in the Notice.

On 11 November 2011 leave was granted to the Applicant to issue contempt proceedings and on the same day a Notice of Motion was issued against the Respondents seeking their committal to prison for their printing and publishing of the article on page 30 of The Fiji Times on Monday 7 November 2011.

On 28 November 2011 directions were given by the Court for the filing of further affidavit material. Answering affidavits sworn by Brian O'Flaherty, Manoj Kumar, Freddy Harry Ravai Wesley and Rashneel Kumar on 19 December 2011 were filed on behalf of the Respondents. A reply affidavit by Aiyaz Sayed-Khaiyum sworn on 19 January 2012 was subsequently filed on behalf of the Applicant.

On 24 January 2012 Counsel for the Respondents informed the Court that the Respondents were pleading not guilty. This plea was formally recorded by the Court.

At the hearing of the motion on 9 July 2012 Counsel for the Respondents raised a preliminary issue arising out of the written submissions filed on behalf of the Applicant. It was submitted that the Applicant could not rely upon the fact that The Fiji Times was also accessible online through its website on the internet. The basis of the objection was that the notice required under Order 52 Rule 2 (2) referred only to an article on page 30 of The Fiji Times on Monday 7 November 2011. The affidavit in support apart from verifying the facts in the notice, referred only to the printing and publishing of the said article. Annexure A to the affidavit was a photocopy of the article printed in The Fiji Times on 7 November 2011. The Notice of Motion dated 11 November 2011 included the following:

"And further Take Notice that upon the hearing of the motion, the Applicant will rely on the affidavit of Aiyaz Sayed-Khaiyum filed herein on the 10th day of November 2011 and the exhibit and annexure therein and referred to."

It cannot be disputed that there was no reference to publication of the story by the Respondent on the internet in the Notice required under Order 52 Rule 2 nor in the Notice of Motion. There was no material in the affidavit in support that would constitute evidence that the story in which the words and statement appeared was published on the internet. The only evidence before the Court was that the story appeared in the printed edition of The Fiji Times on 7 November 2011. That evidence was in the form of annexure A to the affidavit in support.

In Chiltern District Council –v- Kean [1985] 1 WLR 619 Sir John Donaldson MR observed at page 621:

"However, where the liberty of the subject is involved, this court has time and again asserted that the procedural rules applicable must be strictly complied with."

And at page 622:

"It has been said in many cases that what is required is that the person alleged to be in contempt shall know, with sufficient particularity to enable him to defend himself, what exactly he is said to have done or omitted to do which constitutes a contempt of court."

Even if it had been accepted that the use of the word "publish" in the Notice was sufficiently wide so as to include dissemination on the world wide web, there simply was no evidence before the Court to establish that fact. Furthermore, out of fairness to the Respondents if the Applicant had intended to rely on publication on the internet, such intention should have been specified in the Notice and evidence of the fact adduced by affidavit. I therefore upheld Counsel's objection.

The relevant facts, which appeared not to be in dispute, may be stated briefly. On 3 March 2011 a legal practitioner by the name of Dr Muhammed Shamsud-Dean Sahu Khan was found guilty of professional misconduct by the Independent Legal Services Commission. At that time Dr Sahu Khan was and had been for a number of years President of the Fiji Football Association. It would appear that he was also at the same time occupying the position of treasurer of the Oceania Football Confederation. As a result of the disciplinary proceedings the Independent Legal Services Commission on 4 May 2011 ordered, amongst other things, that the name of Dr Sahu Khan be struck off from the Roll of Legal Practitioners in Fiji.

On 7 November 2011 The Fiji Times published the article that is the subject matter of the present proceedings. The Fiji Times is a daily English language newspaper published by Fiji Times Limited. Mr Brian O'Flaherty was at the relevant time General Manager of Fiji Times Limited and publisher of The Fiji Times. Mr Fred Wesley was and still is the editor of The Fiji Times.

The story in which the words and statement appeared was printed on page 30 of 32 pages in what may be termed the sports news part of The Fiji Times. The printed words were part of a quotation from a statement purportedly made by a Tai Nicholas who was described by The Fiji Times as the general secretary of the Oceania Football Confederation.

The Attorney-General is the applicant and has commenced these contempt proceedings under Order 52 of the High Court Rules.

Although the alleged contempt in this case falls under Order 52 Rule 1 (2) (b) of the High Court Rules as contempt of court committed otherwise than in connection with any proceedings, it is my judgment that the per curiam proposition of the House of Lords in Attorney-General –v- Times Newspapers Ltd [1973] 3 All ER indicates that it is both proper and appropriate for the Attorney-General to initiate the present proceedings:

"The Attorney-General has a right to bring before the court any matter which he thinks may amount to contempt of court and which he considers should in the public interest be brought before the court. _ _ _ He is not however obliged to bring before the court every prima facie case of contempt reported to him; it is entirely for him to judge whether it is in the public interest for him to act."

Furthermore, In the Matter of Charles Gordon (unreported civil appeal No. 49 of 1975 delivered 16 March 1976) at page 8 the Court of Appeal observed:

"We fully agree that motions under Order 52 in certain cases, and probably the majority of cases, are better brought by the Attorney-General than by private litigants."

In the above proceedings the contempt of court was alleged to have been committed in connection with proceedings before the court. However, this Court has also commented to the effect that it is appropriate for the Attorney-General to bring to the attention of the Court contempt of court incidents committed otherwise than in connection with court proceedings. In the matter of Mahendra Pal Chaudhry (1998) 44 FLR 39 Fatiaki J (as he then was) at page 48 noted:

"The Attorney-General however, in his wisdom and upon his independent and impartial assessment of the public interest in maintaining the due administration of justice in all its integrity, has decided to bring this matter to the Court's attention and consideration by way of a Notice of Motion to commit the respondent for his contempt of Court, and for that, this Court makes no criticism."

However, it should be noted that, even if the Attorney-General decides not to proceed, the Court may do so of its own motion in the exercise of its inherent jurisdiction (See Order 52 Rule 4, Attorney-General –v- Times Newspaper Ltd (supra) at page 75 and In The Matter of Charles Gordon (supra) at page 7).

These proceedings have been commenced on the basis that the Respondents are alleged to have committed what is termed a criminal contempt in the form of scandalizing the court otherwise than in connection with any proceedings. Although the High Court Rules (including Order 52) do not apply to criminal proceedings in the High Court (Order 1 Rule 8(2)), any contempt, whether civil or criminal, committed in connection with civil proceedings before the Court or committed otherwise than in connection with any proceedings are treated as contempt of court for the purpose of an application under Order 52. In Vijaya Parmanandam –v- Attorney-General (1972) 18 FLR 90 at page 98 the Court of Appeal stated:

"Nevertheless it is not possible to construe Order 52 as modified, as applying only to civil contempt. It embraces contempt connected with civil proceedings, which may be either civil or criminal contempt, and it specifically includes contempt not in connection with any proceedings. As it is not possible to limit the construction of Order 52 to civil contempt it must be accepted that the draftsman's reference to criminal proceedings in (Rule 8(2)) was meant to refer to criminal proceedings in the full sense, as envisaged by the Criminal Procedure Code, and not to this hybrid or quasi – criminal type of proceeding. However this may be, and in spite of the anomaly that Order 52 does not include in its provision any procedure for contempt in connection with criminal proceedings, in our judgment the present case falls to be governed by it."

The distinction between civil and criminal contempt was discussed by Lord Diplock in Attorney-General –v- Times Newspapers Ltd (supra) at page 71:

"One may leave aside _ _ _ the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a "civil contempt". The order is made at the request and for the sole benefit of the other party to the civil action _ _ _.

All other contempt of course are classified as "criminal contempt", whether the particular proceedings to which the conduct of the contemnor relates are themselves criminal proceedings or are civil litigation between individual citizens."

In summary then, contempt of court, whether civil contempt or criminal contempt, other than contempt committed in connection with criminal proceedings, is dealt with under Order 52.

The Applicant alleges that the words printed and published by the Respondents scandalise the Court and the judiciary in Fiji on the basis that they (a) are a scurrilous attack on the judiciary and (b) lower the authority of the judiciary and the Court. That the integrity of the judiciary and the authority of the Court should be protected is premised on the principle that was clearly explained in the opening remarks of Lord Diplock's speech in Attorney-General –v- Times Newspapers Ltd (supra) at page 71:

"in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it are essential if citizens are to live together in peaceful association with one another."

The principle expressed by Lord Diplock (supra) was developed and discussed in "The Australian Judiciary" (Enid Campbell and H P Lee 2001) at page 182:

"_ _ _ the authority of the courts and their judges depends ultimately on whether or not they command the general confidence of the communities they serve: confidence in their ability to administer justice according to the law and without fear or favour. This is recognised by the law relating to contempt of court. Those who publish material which tends to bring the courts into disrepute, or is calculated to lower their dignity or authority may be adjudged guilty of criminal contempt of court – that form of contempt known as scandalising the court."

In this jurisdiction this principle was considered in Mahendra Pal Chaudhry –v- Attorney-General of Fiji (1999) 45 FLR 87. At page 92 the Court of Appeal (Casey, Barker, Thompson JJA) said:

"This summary indicates that the common law offence of contempt scandalising the Court involves attacks upon the integrity or impartiality of judges or Courts, the mischief aimed at being a real risk of undermining public confidence in the administration of justice which must be established beyond reasonable doubt."

It appeared not to be disputed that the words complained of were published in The Fiji Times on the day in question as alleged by the Applicant. That was a factual issue that has been established beyond reasonable doubt. Whether the published words rendered one or more of the Respondents guilty of the offence of contempt scandalising the Court depends upon whether the Court forms the view that the publication overstepped what has been described as "the fine line between the tolerable and the intolerable" (The Australian Judiciary (supra) at page 183). In a case such as the present it is appropriate to take into account the identity of the publication, the readership of the publication and the nature of the jurisdiction in which the words were published.

In considering the identity of the publication, the Court notes that the story appeared in a daily English language newspaper that has a nationwide circulation. The headline placed the story in the context of football (soccer) which is played throughout the country and followed by a large section of the community. It related to a person who was well known throughout the community as a soccer administrator and legal practitioner. This same person had only a short time before publication been the subject of some media notoriety as a result of his disciplinary proceedings before the Independent Legal Services Commission.

In considering the readership, it is sufficient to say that the subject matter of the story would have attracted the attention and interest of most members of the community who follow or support soccer and those who whilst browsing the sports section would have caught the reference to "DOC" in the heading.

In considering the issue of the nature of the jurisdiction, reference should be made to the decision of the Privy Council in Ahnee and Others –v- Director of Public Prosecutions [1999] UKPC 11; [1999] 2 WLR 1305 at page 1313:

"Their Lordships have already concluded the offence of scandalising the court exists in principle to protect the administration of justice. _ _ _ But it is permissible to take into account that on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court on a small island is greater _ _ _ Moreover it must be borne in mind that the offence is narrowly defined. It does not extend to comment on the conduct of a judge unrelated to his performance on the bench. It exists solely to protect the administration of justice rather than the feelings of judges. There must be a real risk of undermining public confidence in the administration of justice."

The reference to a small island nation such as Mauritius where the administration of justice is more vulnerable than in the United Kingdom is of particular significance for the present case. Also is the observation by the Judicial Committee that "the need for the offence of scandalizing the court on a small island is greater."

It is not entirely clear from the judgment of their Lordships on what basis it had been concluded that the administration of justice was more vulnerable that in the United Kingdom. It can be inferred that the recent constitutional history of the Island state was a matter that may have lead their Lordships to such a conclusion. It would, of course, be no less true that not only the recent constitutional history of Fiji but also its constitutional history since independence in 1970 would at times have meant that the administration of justice has been more vulnerable than in the United Kingdom. It would follow also that the need for the offence of scandalizing the court in Fiji as an Island state (albeit of more than 300 islands) is greater than in a developed State.

I now turn to the mischief that is sought to be avoided by commencing proceedings seeking committal for contempt scandalizing the Court. A publication becomes intolerable when there is a real risk that its effect will be to undermine public confidence in the administration of justice.

With the real risk test it is not necessary for the Applicant to establish that the Respondents intended to commit the offence of contempt scandalizing the court. If the publication was intentional and if the words published risked undermining confidence in or the authority of the Court or of the judiciary, there was no requirement to establish an additional element of mens rea: See Ahnee –v- DPP (supra) at page 1315. This proposition had previously been adopted in this jurisdiction by the Court of Appeal in Chaudhry –v- Attorney-General of Fiji (supra) at page 91:

"An intention to interfere with the proper administration of justice was not seen as a necessary ingredient of the offence of contempt by scandalising the court _ _ _."

As for the publication in this case, the test to be applied in determining whether the words used present a real risk of undermining confidence in and the authority of the Court and the judiciary was discussed in Parmanandam –v- Attorney-General (supra). At page 96 the Court of Appeal observed that the words complained of must be construed objectively and as a whole. "The test is what any fair minded and reasonable man would understand" from the words as they appeared in the publication.

I am satisfied that a fair minded and reasonable person reading the story on page 30 of the Fiji Times on 7 November 2011 would understand the words in the context of the published article to mean more than literally that there was "no judiciary there." It is of no assistance to the Respondents to claim that readers knew that there was a judiciary in Fiji. Fair minded and reasonable readers of the Fiji Times may well be aware that there were Judges performing judicial functions on a daily basis in Fiji. The fair minded and reasonable person would conclude that the Fiji Times also knows about the existence of those judges in Fiji since the paper reports on court proceedings. However it is reasonable to conclude that a reasonable and fair minded person would then ask himself why did the paper publish the words. The fair minded and reasonable person reading those words would conclude that the words must mean that those who claim to be performing judicial functions in Fiji are not in fact a judiciary at all.

It is simplistic in the extreme to suggest that the published words were spoken by a person who was mistaken as to the existence of the judiciary of Fiji. The extent of the knowledge and the intention of the person who uttered the words is not relevant in these proceedings. It is the act of publication that is the gist of the present contempt. It is not the maker of the statement who is a party to these proceedings. The parties who printed and published the words and the statement are before the Court for the act of printing and publishing. I do accept that it may not have been the intention of the Respondents to undermine public confidence in the administration of justice. However the only intention that is relevant is the intention to publish the story. The material before the Court indicates that there was no effort made by the Respondents to determine prior to publication whether the words might constitute contempt by scandalizing the court.

It is my judgment that the words published in the Fiji Times and thus understood by a fair minded and reasonable reader do represent a real risk to the administration of justice in Fiji by undermining the authority, integrity and impartiality of the Court and the judiciary. I am satisfied that publication of the words represents a real risk of undermining the confidence of the people in the judiciary and in the judgments of the Courts since they have the effect of lowering the authority of the Court and its judiciary. The words generate misgivings as to integrity, ability and impartiality which are qualities fundamental to the judicial office and the rule of law. See R v Dunbabin; ex parte Williams [1935] HCA 34; (1935) 53 CLR 434. I am satisfied that the offence of contempt scandalising the court has been established against the First Respondent, Fiji Times Limited.

I now turn to consider the issue of legal responsibility of the second Respondent, Brian O'Flaherty and the third Respondent, Fred Wesley.

In his affidavit Brian O'Flaherty admits that he is the publisher of the Fiji Times. He also admits to being the General Manager of the First Respondent. It would appear that he took up these positions in about December 2010 (para.11). It would also appear that since publication of the story on 7 November 2011, he has resigned from the first Respondent.

The second Respondent seeks to draw a distinction between his role as publisher being a role concerned with the management or commercial sections of the company and the editorial section of the newspaper. He claims that the latter is independent of and not influenced by the former. Mr O'Flaherty also states that he was satisfied that if systems, that were in place when he joined the First Respondent, were properly followed, those systems were adequate to avoid liability or legal responsibility.

As both General Manager of the First Respondent, a body corporate, and publisher of the Fiji Times newspaper, it is reasonable to conclude that Mr O'Flaherty wore the cloak of ownership and publisher. His role as publisher was in this case re-inforced as a consequence of his position in the management structure of the corporate owner. A publisher is defined in the Shorter Oxford English Dictionary as a person "whose business is the issuing of books, periodicals, music etc as the agent of the author or owner", and a person "who produces copies of such works and distributes them to the booksellers and other dealers, or to the public."

Finally it should be noted that Mr O'Flaherty deposed that he was not personally involved in the publication of the story and it may be inferred that he had no knowledge of its contents when the edition of the Fiji Times was published on the day in question.

In my judgment there is ample authority in English jurisprudence for the proposition that the law imposes a liability upon newspaper proprietors and publishers for the material which their newspapers publish. They are both responsible for providing the means whereby publication is effected. This is equally true whether the means of publication is a reference to finance, management or oversight and supervision of the means of publication. And under those circumstances, as the learned authors of Borrie & Lowe: The Law of Contempt (Fourth Edition, 2010) state at page 604 it seems right to impose liability. It has long been the position that although a publisher may have no personal knowledge of the contents of the newspaper on any given day, as the person who was both general manager of the corporate entity that owned the newspaper and as the publisher it was the second Respondent who had management authority over all the processes and stages leading up to the publication of the story. He caused publication. As Lord Morris observed in the judgment of the Privy Council in McLeod –v- St Aubyn [1899] UKLawRpAC 33; [1899] A.C. 549 at page 562:

"A printer and publisher intend to publish and so intending cannot plead as a justification that he did not know the contents."

Counsel for the Respondents urged the Court to take a different view and in doing so relied on authorities decided in New Zealand and Australia with particular reference to Solicitor-General –v- Radio Avon Ltd [1978] INZLR 225. In that decision the Court of Appeal discussed whether the principle of strict editorial responsibility for contempt applied to newspapers should apply in New Zealand to broadcasting. However I consider that the law in Fiji in relation to the strict liability of publishers for contempt scandalizing the Court should reflect the common law as developed by the cases decided by the English courts. On that point I note that section 27 of the High Court Act Cap 13 makes express provision for the application in Fiji of the common law.

Just as the Family Court of Australia in Fitzgibbon –v- Barker and Others (1992) 111 FLR 191 noted at page 202 I also find it not necessary to determine whether the proper basis for liability is vicarious or primary. I am nevertheless satisfied that the law imposes liability on a publisher for contempt scandalizing the Court and I am satisfied beyond reasonable doubt that the First Respondent as publisher is guilty of contempt as alleged.

As for the third Respondent, Fred Wesley, he admits in his affidavit that he performs the editorial function for the Fiji Times newspaper. Although not at work on the day before publication of the story, he states that even if he had been at work it was unlikely that he would have read the story.

In general terms, it is the practice of a newspaper owner and publisher to entrust to one person, the editor, responsibility for the contents of the newspaper. As a result the editor also shoulders responsibility for what appears in the newspaper. An editor is expected to accept responsibility for what appears in an edition of the newspaper even when he is not directly involved in the composition of a story or the decision to print the story or in the formatting of the particular page on which the story appears in the newspaper. (See Arlidge, Eady and Smith on Contempt Third Edition at page 290).

In R v Editor and Printers and Publishers of the Evening Standard ex parte the Director of Public Prosecutions (1924) 40 TLR 833 Lord Hewart CJ said at page 836:

"_ _ _ nobody who knew anything of the organization and management of a newspaper office could be ignorant of the fact that the work of the newspaper was very often done in circumstances of great hurry by many different minds not always fully aware of what others might be doing. The result was a composite thing, but there must be central responsibility. It was impossible to say that men occupying responsible positions should be excused because they themselves were not personally aware of what was being done."

I would also add that it was no excuse to say that a person holding a responsible position was not present at the time. A person designated to perform the function of the editor, in the absence of the editor, acts for and on behalf of the editor whilst the editor is away on leave or for any other reason such as shift arrangements.

The fact that an editor is responsible for what is published in the newspaper was confirmed by Lord Parker CJ in R v Thompson Newspaper Ltd and Others, Ex parte Attorney-General [1968] 1 WLR 1. This is so even when the editor was not aware of the existence of the story when it was published. It is also the case even when an editor has in place a system that is designed to prevent such a story with the offending words appearing in the newspaper.

The many authorities cited by Counsel for the Applicant in the written submissions clearly establish that at common law liability attaches to an editor for material appearing in the newspaper which the Court holds to be contempt scandalizing the court. What does appear still to be determined or settled is the basis of that liability. Once again I do not find it necessary for the purpose of the present proceedings to determine whether legal responsibility is primary or vicarious. I am satisfied that the third Respondent must accept responsibility for the printing and publishing of the story that contained the words constituting the contempt.

Although it is not necessary for me to determine the basis of liability of both the second Respondent as publisher and the third Respondent as editor, it may be relevant to refer briefly to the affidavit sworn by Mr O'Flaherty. In paragraph 15 the deponent deposed:

"On joining FTL (Fiji Times Limited) in January 2011 I met with the Editor-in-Chief, Freddy Wesley, and was briefed on the policies and processes of the newsroom. I was made aware that all reporters, sub-editors and editors have been provided a comprehensive style guide which includes detailed coverage on the law of defamation and of contempt and that there was a procedure for referring any story that might have legal implications for FTL and its staff to our lawyers for their legal review. I was satisfied that, if properly followed, these systems were adequate to avoid any breach of the law and any liability."

To ensure that there is a system in place that minimizes or eliminates (if possible) the risk of a breach of the law and liability as part of the organization's management structure was, in my judgment, a joint responsibility that fell on both the publisher and the editor. Furthermore, to ensure that such a system was effective, supervised and monitored was also an on-going responsibility that fell jointly on both the publisher and the editor.

Whether such a system was adequate and effective was a matter to be judged or determined objectively by the standard of a prudent publisher and a prudent editor exercising at least reasonable care and diligence. There was no material exhibited to the affidavit of Mr O'Flaherty that would enable such an assessment to be made. In other words there was simply no way for the Court to assess the adequacy or the effectiveness of the system that was allegedly in place at the time. There was no extract of, nor any indication as to the nature of the guidance provided in, what was termed "a comprehensive style guide."

To the extent that the affidavit sworn by Fred Wesley purported to explain the system, it is apparent from the affidavits of Rashneel Kumar and Manoj Kumar that whatever system was in place at the time was either ineffective, unsupervised or not sufficiently monitored. In my judgment, whatever the reason, the responsibility for the publication of the material must be borne by the both publisher and the editor.

For all of the above reasons, I find all three Respondents guilty of the contempt scandalizing the Court.

There is one further matter that I must now consider. When the hearing commenced and before Counsel presented their submission, I raised an issue which I indicated caused me considerable concern. In brief the matter related to the edition of the Fiji Times published on Saturday 30 June 2012.

On page 71 of that printed edition in the sports section there appeared a photo of four men holding a large replica of a cheque for $25,000 New Zealand Dollars payable to the Prime Ministers Flood Appeal. The Prime Minister of course refers to the Prime Minister of Fiji and purports to be a donation to his flood appeal fund established to assist those affected by the two floods that affected mainly the Western half of Viti Levu. The cheque has the letters OFC in upper case and clearly visible in the left upper corner. Next to the letters there appears to be a replica of the emblem of the OFC. OFC is the abbreviation of Oceania Football Confederation. Three of the men pictured are or were at the time local football (soccer) officials. The fourth man, in the centre, is a Mr David Chung. He is expressly identified under the photograph.

Immediately to the left of the photograph, without any dividing line or attempt to separate the photograph, is the heading "Oceania soccer boss issues apology." The opening paragraph of the story that appears under that heading and alongside the photograph states:

"Oceania Football Confederation boss David Chung has offered his apology to the Fiji Government for comments made by OFC secretary general Tai Nicholas which caused a rift between soccer's world governing body FIFA and the local authorities."

I indicated to Counsel my concern that a fair minded and reasonable person looking at the photo and reading the headline and the first paragraph may well reach the conclusion that a donation of $25,000.00 and an apology is all that it takes to settle committal for contempt of court proceedings.

There is also the issue of the independence of the judiciary. The combined effect of the photo and the story indicates that the apology and the cheque are directed to the Government. This in turn leads a fair minded and reasonable person to the conclusion that the judiciary and the executive in the form of the Government are not independent; that the judiciary will be impressed by such gestures or worse still imposed upon by government to dispose of the matter favourably in return for the donation of $25,000.00.

There is also the additional complication for the newspaper that neither the Government nor the Attorney-General were the subject of the contempt allegation. The Attorney-General commenced the proceedings on the basis that it was the judiciary and the authority of the Court that had been scandalized. A fair-minded and reasonable reader would query why Mr Chung was apologizing to the Government and presenting a cheque for $25,000.00 at the same time if it wasn't an attempt to influence the judiciary via the government? These are all conclusions that result from the manner in which the material was presented. They are conclusions open to a fair minded reasonable person and as a result present a real risk of undermining the authority, integrity and impartiality of the judiciary and the Court.

Furthermore, the apology as printed is coming from a person who was not a party to the proceedings and had no direct involvement in the proceedings. More importantly the newspaper has printed material in the form of comments made by Mr Chung whilst proceedings against both the Fiji Times and Mr Tai Nicholas in relation to the same story were on-going.

Although I granted Counsel for both parties further time to make submissions on this matter, the Court was not greatly assisted. As a result and in view of the conclusions I have reached, I invite Counsel as part of the mitigation hearing to address me on why I should not consider the material that appeared on page 71 of the Fiji Times on 30 June 2012 as an aggravating factor of a grave nature.

The motion is to be listed for mention on a date to be advised by the registry for the purpose of fixing a date for mitigation submissions.

W D Calanchini
JUDGE

1 October 2012
At Suva