IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
AC 18 of 2013
NUKU'ALOFA REGISTRY [CV 53 of 2013]

BETWEEN:

1. LAUTALA TAPUELUELU
2. MATENI TAPUELUELU
Appellants

AND:

ATTORNEY GENERAL
Respondent

Coram : Salmon J
Blanchard J 
Ward J

Counsel : Dr R. E Harrison QC with Mr Etika for the Appellants
Mr Adsett AG for Respondent

Date of Hearing : 1 April 2014
Date of Judgment : 9 April 2014

JUDGMENT OF THE COURT

[1] 	The appellants are the Publisher and Editor respectively of the Ko e Kele'a newspaper (Kele'a) which has a wide circulation in Tonga and the Tongan diaspora, principally in Australasia and the United States. 

[2] 	In early June 2013, a defamation action, arising from a letter that had been published in Kele'a some month earlier, was heard in the Magistrate's Court before magistrate, Paula Tatafu. It was brought by seven government Ministers against the writer of the letter and the present appellants. Magistrate Tatafu found for the Ministers and awarded a substantial sum in damages and costs against the three defendants.

[3] 	On 24 June 2013, Kele'a carried an article in Tongan under the heading "The judgment will be thrown into the rubbish bin of history: Editor Kele'a". The article reported the court case and included a section headed "Opinion of the Editor Mateni".

[4] 	On 17 July 2013, the Attorney General lodged an application to have the appellants committed for contempt. The Attorney General submitted that the whole article constituted a contempt but particularly drew the court's attention to six passages which, he suggested, given their ordinary and natural meaning, suggested:

1.	The magistrates were owned or controlled by the Minister of Justice and subject to his directions. Accordingly, a party in conflict with the Minister would not receive a fair trial, according to law;

2.	Whereas the Supreme Court is independent of outside interference that is not the case with the Magistrates' Courts;

3.	Whenever a leader of government brings proceedings in the Magistrates' Court the result will be favourable to the plaintiff.

[5] 	The respondents opposed the application on four principal grounds:

1.	The intention of the application was to curtail their right to freedom of speech under clause 7 of the Constitution;

2.	The article was a genuine expression of opinion in good faith without malice or improper motive;

3.	The publication was in the public interest and was a fair and accurate report of legal proceedings as a whole;

4.	The public benefit from the publication of the material outweighed any harm caused to the administration of justice.

[6] 	The Lord Chief Justice accepted the case was proved in respect to three of the six selected passages. He considered, "on the plain meaning it was being suggested that the Magistrate's Court was biased in favour of the Government and, in particular, the Minister of Justice and that consequently a fair trial was not afforded when Ministers, and the Minister of Justice in particular, were the plaintiffs. It cannot be doubted that an allegation of bias against a judicial officer is not only an act calculated to bring that officer into contempt but is also an act calculated to lower public confidence in the court over which he presides." 

[7] 	He found both appellants guilty of contempt of court and fined each $2,500.00 or one months imprisonment in default of payment and ordered they should pay the costs of the proceedings. They appeal only against the sentences.

[8] 	The judgment was published on 30 August 2013 and the appellants published what was described by the judge as a "fulsome apology in a prominent position" in the 9 September edition of Kele'a. It was sufficient for the Attorney General to invite the court to take it into consideration in mitigation of penalty. The translation of the apology has been given to this Court and we agree with the judge's description. It is not necessary to set it out but it is a complete retraction and unreserved apology and must properly be taken as a significant factor in mitigation of the offence. Mr 'Etika for the appellants emphasised their contrition and previous lack of convictions including contempt.

[9] 	The Lord Chief Justice explained:

"The central allegation against the magistrate, that he was subject to the control of the executive, was wholly false and furthermore implied that the magistrate had not only breached his oath of office but that he had also breached clause 15 of the Constitution. In my opinion that is no need to depart from the assessment of Ward CJ in Namoa, a reported case with which the respondents should have made it their business to be familiar:

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

Taking all these factors into account I am of the view that an adequate financial penalty must be imposed. The respondents are husband and wife and jointly responsible for the publication of this contempt. Each respondent is to pay a fine of $2500 and each is given two months to pay."

[10] 	It is clear that the learned judge accepted the published apology as an important mitigating factor but gives no indication of any other matters taken into account in the determination of the appropriate sentence basing it entirely, it would appear, on his determination of the seriousness of the contempt itself. Mr Harrison, for the appellant, suggested to this Court that the reference to the "wholly false" allegation that the magistrate was subject to the control of the executive had to be considered against the legislative provisions involved. It has, for nearly a century, been the law that the magistrates were appointed by the Prime Minister with the consent of Cabinet. That was changed, by legislation designed to support the independence of the magistracy, by the Miscellaneous Amendments (General) Act 2010 which was enacted in November of that year. Although that occurred nearly three years before the published article appeared, it is, as Mr Harrison suggests, some explanation for the author's error.

[11] 	It is certainly correct, as counsel submits, that the sentencing judge gives no indication of which, if any, matters of mitigation were taken into account in determining the appropriate sentence. Having decided, properly, to impose a fine, there is no reference to or consideration of the appellants' means in terms either of income or ability to pay. The judge, having taken into account the apology and the scale of sentences ordered in previous cases, including Namoa, formed the view that "an adequate financial penalty must be imposed" and continued; "The respondents are husband and wife and jointly responsible for the publication of this contempt".

[12] 	In the earlier judgment, he had carefully and accurately reviewed the law on this form of contempt and convicted them both but there was no indication whether he had considered the relative degree of responsibility of each. When passing sentence, the statement set out above fails to indicate any feature distinguishing the actual involvement or responsibility of each individual appellant and appears instead to allocate joint responsibility on the sole fact that they are husband and wife.

[13] 	Authorities in other jurisdictions suggest a court, when assessing the appropriate penalty, should determine the degree of control and possible intention of each individual contemnor. In cases of publication in newspapers the editor is generally found to hold the principal responsibility for the contents of any article in the newspaper whilst the publisher's responsibility, in the absence of evidence of specific knowledge or involvement, is usually seen as less.

[14] 	 In the present case, there is a clear distinction between the responsibility of the second and first appellants. Not only was the second appellant the editor but it was clear he was also the author and source of the opinions expressed on it. The first appellant must share some responsibility as publisher but there is nothing before us to suggest any greater involvement.

[15] 	Counsel in the hearing below drew the court's attention to the penalties ordered in the few earlier cases in this jurisdiction. We do not set them out but the range of penalties was from a warning and costs to $1,500 (with a single exception in which the contempt was a deliberate act by a legal practitioner to influence a trial in which he represented one of the parties.)

[16] 	Mr Harrison suggests that the learned judge should have explained his reason for exceeding the previous scale. He accepts that inflation since the last case some years ago will have altered the value and impact of fines but we do not accept his suggestion that the judge needed to have accurate figures before he could relate the present case to previous penalties.

[17] 	Any court must take inflation into account but it is not a matter which requires more than his personal knowledge and experience of fines and their effectiveness in all cases. In the present case he fined both appellants approximately double the previous figures on the basis that this was a case near the top of the scale of seriousness.

[18] 	 We accept that, as a direct attack on the integrity of a named individual judge, this was correctly so identified. We do not consider the penalty imposed on the second appellant was manifestly excessive and the appeal against his sentence fails. However, in the absence of more evidence of her involvement beyond the sole fact of being the publisher, the sentence on the first appellant fails to take differences into account and is, therefore, too high. We therefore quash the fine of $2,500.00 on the first appellant and substitute one of $500.00.

[19] 	In light of the partial success of the appeal the appropriate order is that the parties shall bear their own costs of the appeal.

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Salmon J

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Blanchard J

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Ward J