IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR.394/2003

ATTORNEY GENERAL

-v-

MANU MANUOFETOA
MATENI TAPUELUELU
KALAFI MOALA

BEFORE HIS HON. MR. JUSTICE FORD

Counsel: Mr Kefu for the applicant (Attorney-General) and
Mr Tu’utafaiva for the respondents.

Date of hearing: 11 December, 2003.
Date of written submissions: 11 and 25 February, 2004.
Date of judgment: 11 March 2004.

JUDGMENT

Crown counsel told the court that, to his knowledge, this is the first time that a charge of contempt of court has been brought in Tonga alleging interference with a criminal case that is still pending. His understanding could well be right.

The second respondent is or was the editor of a newspaper called the "Taimi 'o Tonga". The newspaper is no longer available in the Kingdom but at the time of the alleged contempt it was distributed and sold throughout the Kingdom and in other countries twice weekly - on Tuesdays and Fridays. The first respondent was a reporter with that newspaper and he produced the story in question. The third respondent, who resides in Auckland, New Zealand, is the owner of the Taimi 'o Tonga.

The essential facts are that during the early morning hours of Saturday 6 September 2003 a fight developed outside the Billfish Bar and Restaurant at Ma'ufanga and 21-year-old Semisi Ma'u was stabbed to death.

The first respondent, Manu Manuofetoa, carried out interviews later that day, including an interview with an eyewitness. He also obtain confirmation from a police officer that one, Nakita +Tu'itavake, had been arrested in connection with the incident.

Either on the Saturday evening or Sunday morning, the reporter handed the story about the tragedy to his editor, the second respondent, for his perusal. The editor personally visited the scene of the crime and checked out the contents of the story for himself with another witness before dispatching the article to New Zealand for publication. The newspaper was published in New Zealand on Monday 8 September and then distributed and sold throughout Tonga on Tuesday 9 September.

The story, which appeared on page 5 of the newspaper, was introduced by a headline on the front page which read " Killing in Tonga -- Halaleva youth dies from being stabbed with a knife early Saturday morning . . . page 5." The story on page 5, as translated, reads as follows:

"Stabbing of Youth to death
by Manu Manuofetoa"

A little family from Halaleva is tearful and in mourning when they met with one of the members of their family on early Saturday morning who has moved on from this world to the next world, as a result of being stabbed with a sharp object which is alleged to be a knife, at the frontage of the Billfish Bar.

The deceased is Semisi Ma'u, aged 21, the fourth of five little children of retired police inspector Lolu Ma'u and his wife, Selu Ma'u of Halaleva.

After the police received the complaint concerning this incident, they very quickly searched the roads of Nuku'alofa in search of Nakita Tu'itavaka of Kolomotu'a. Nakita was arrested on early Saturday morning and put in prison and the police are continuing with their investigations.

According to information received by this newspaper, the deceased went with some male friends on an outing to Billfish Bar. A scuffle occurred between the deceased and the person alleged to have stabbed him with a knife, Nakita inside the Bar.

They were stopped inside but when they came outside the deceased and Nakita attacked each other and the deceased was stabbed with a knife. According to a statement by a very reliable person who does not want to reveal his name, he said that after the deceased and Nakita were stopped inside he came out because of curiosity because it was clear to him that there will be another fight.

He said that when they came outside, he noticed that Nakita and two others had already got into the vehicle which they had come and the deceased called out to him to come out and they fight.

"The guy (Nakita) got out from the vehicle with another guy, and the deceased stood there with another guy, and they paired of," he said.

This person then said that he stood and watched because it was clear it was just a little drunken behaviour and he was surprised when he noticed what appeared to be a knife being pulled by one person from the ribs of the deceased and he saw blood flowing and he realised that a knife had been used in the fight.

When he continued his statement, he rushed in to stop, but Nakita turned to him with a knife to attack him with and he stepped back but the deceased had staggered to the side. Nakita then got into the vehicle and they left and then this person reached down to the deceased and he was covered with blood.

They then tried and put him in a taxi to be rushed to the hospital, but although he the deceased was rushed quickly to the Viola Hospital but there was nothing that could be done because when they got there the deceased's breath was ebbing and consequently he moved on.

According to information from Viola Hospital it was stated from there that there were three stab wounds inflicted on the body of the deceased with one to the ribs, one to the chest and one that slipped to the head. It is shown from the statement from Viola that the stab to the chest which affected the lungs of the deceased which quickened his death.

This incident occurred while the deceased's father, Lolu Ma'u, was overseas and attempts were made to contact the mother, Selu, but there was no opportunity.

This newspaper then got an opportunity to talk with the only sister of these four brothers, Ane Ma'u, who is the youngest.

Ane spoke and at the same time was crying in grief because of her sadness because of what had happened to her brother. She said that she cannot forget the face of her brother and more so because Semisi (the deceased) was number four, and she (Ane) is the youngest, and so she spent more time with him than with the older children.

"I am very saddened with what has happened with my brother and it is difficult for me to forget his little face. We were the youngest and we spent more time with each other because the older boys are already married," Ane complained."

Nakita Tu'itavaka and another youth were subsequently charged with Semisi's murder. The preliminary inquiry was held in the Magistrates' Court in October 2003. Upon their arraignment in the Supreme Court in January 2004, both accused pleaded not guilty and they are now awaiting trial before a judge and jury.

The Crown alleges that there is a real risk that witnesses and potential jurors who read the article would "have formed views on the incident". In a supporting affidavit, to which no objection was taken, Crown counsel deposed that there is a real likelihood that readers of the headline and article would have formed the view that Nakita and Tevita murdered Semesi Ma'u (Tevita, however, is not mentioned in the article). It is alleged that there is a real risk that the prospects of a fair trial for the accused, Nakita, have been seriously undermined by the article and that is the basis upon which the contempt proceedings have been brought.

For the respondents, Mr Tu'utafaiva submits that the article was not a trial by the media but an honest reporting, after interviewing a witnesses, of a newsworthy topic of considerable public interest.

The common law authorities and legal principles underlying contempt of court in situations like the present were reviewed relatively recently by the Full Court and the Court of Appeal in the New Zealand case of Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563. The judgments are particularly relevant to the present case because they also dealt with a contempt proceedings in relation to a pending criminal trial.

In the Full Court (reported as Solicitor-General v Wellington Newspapers [1995] 1 NZLR 45, 56, McGechan J. summed up the basic principles as follows:

"The onus rests on the Crown. The standard of proof is beyond reasonable doubt. The question is whether as a matter of practical reality there is a real risk, as opposed to a remote possibility, of interference with a fair trial; and if such real risk exists, whether there are any public policy considerations which militate against contempt. The question is one of tendencies, not actual effect, and in assessing tendencies the court will use its own experiences. Intention to commit contempt is not essential, although of course it is a considerable factor in relation to any consequent penalty. The contempt jurisdiction is one to be used sparingly."

To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to criminal proceedings that are actually pending or known to be imminent. There are authorities which suggests that this category might be even broader but it is unnecessary for me to consider these issues in the present case because Mr Tu'utafaiva has, very properly in my view, conceded that criminal proceedings were imminent when the article was published.

The facts of the Gisborne Herald case were that on 15 July 1993 a police constable in Gisborne was attacked by one John Gillies and stabbed in the spinal area with a screwdriver. He was flown to Burwood hospital in Christchurch, 500 miles away, for specialist spinal treatment. On the night of the attack, the police officer's wife gave birth to a daughter.

Several media outlets reported the story, including references to the fact that John Gillies had previous convictions for violence and at the time of the attack he was on bail on assault charges. The Solicitor-General subsequently brought proceedings for contempt against the newspapers and Radio New Zealand. The Full Court upheld the contempt against three of the newspapers but dismissed the application against Radio New Zealand Ltd. The subsequent appeal to the Court of Appeal by the Gisborne Herald Co Ltd was dismissed.

The Gisborne Herald article appeared on 17 July 1993. It was headed, "Beautiful India off to see her father". It gave a detailed account of the police officer's wife and baby daughter going to visit him in hospital. As noted by the Court of Appeal, however, the bulk of the article consisted of references to the charges Mr Gillies was facing in other courts, to his previous convictions for violence and other offending, to his being on bail, and to his previous bail history including police opposition to previous grants of bail.

Of significance in relation to the present case is the fact that, it would seem from the reports, the contempt proceedings were based solely on the disclosures relating to the accused, John Gillies. The human interest part of the story about the hospital visit of the police officer's wife and baby daughter did not figure in the Solicitor-General's complaint although, coupled with the emotive heading, it no doubt would have attracted public sympathy to the victim and his family.

I make that observation because one of the submissions stressed quite forcefully by Crown counsel in the present case is that the article was "full of words of sympathy and has a very strong emotive tone . . . such a tone, it is submitted, from a Tongan reader's view, can only mean an invitation to be sympathetic to the loss of this family."

I accept the thrust of that particular submission and I also accept Crown counsel's further submission that, "the logical deduction from the article is that the accused (Nakita) is the person who stabbed the deceased." The question I have to determine is whether those matters, together with the other passages in the article relied upon by the Crown, are sufficiently grave to warrant a finding of contempt.

Reference was made by both counsel to the preliminary inquiry held in the Magistrates' Court in October 2003. The evidence is that the Taimi 'o Tonga newspaper reported fully on that deposition hearing. The finding by the magistrate was that a sufficient case had been made out to put the accused on trial for murder. Crown counsel contends that the report on that finding, "would have only fuelled the view that the accused was guilty." The reality, however, is that even had the article in question never been published, the public reading the results of the preliminary inquiry could well have made the same "logical deduction" Mr Kefu refers to, namely, that it was the accused who had stabbed the deceased.

An important matter in assessing whether a publication creates a real risk of interfering with the course of justice is the likely delay between publication and trial. In the Gisborne Herald case, Richardson J. delivering the judgment of the Court of Appeal, said at 569:

"Leaving aside for the moment any balancing of free speech/fair trial values, whether a publication is a contempt turns on whether it creates a real risk that the trial is likely to be prejudiced. Both the content of the publication and the circumstances in which it is published are important. One important consideration is the likely delay between publication and trial. That impact may in turn be affected by the timing of the original publication, the audience reached, and the likely nature, impact and duration of its influence . . . Where cases cannot be expected to be tried for some months it may be difficult for an editor to predict a likely judicial response. To err on the side of caution is a pragmatic answer, even if it may inhibit the media's approach to freedom of the press issues . . . Whilst the exact lapse of time is not the touchstone, consideration of reported decisions in this field as well as one's own experience suggests that, and depending always on the content and the circumstances surrounding its publication, where the expected lapse of time between publication and trial is beyond six or eight months, difficult questions will always arise as to the justification for concluding that the influence of the article would have survived the passage of time."

(Emphasis added)

When this application was heard back in December 2003, I fixed a timetable for the filing of written submissions which deliberately did not commence until after the scheduled arraignment of the two accused before the Chief Justice in January 2004. I indicated to counsel that I wished to be informed of the anticipated trial date. Surprisingly, neither counsel referred to the date in their submissions but the court records show that both accused pleaded not guilty and elected trial by judge and jury. The Chief Justice allocated a four-day fixture commencing 14 February 2005. That means a delay between publication and trial of some 17 months.

Crown counsel submitted that special considerations arise in the Kingdom compared with other jurisdictions because, as he put it, "stabbing incidents are rare in Tonga" and "in Tongan society, the first reports are usually accepted as the truth of an incident . . ." Even accepting for present purposes, however, that there is substance in this submission it needs to be balanced against the evidence before the court that the circulation figure for the Taimi 'o Tonga for the whole of the Kingdom at the material time was only 4000 copies for each edition.

One of the major criticisms of the article advanced by Mr Kefu is that the report of the case goes beyond the recognised "bare facts" which the law permits in relation to reports from crime scenes. In the case of Parker v Peacock (1912) 13 CLR 577, Griffiths C. J. confirmed that the public is entitled to entertain a legitimate curiosity about some things and hence it is lawful for a person to publish, what he referred to as the "bare facts" of an incident. The Chief Justice went on to say:

"By "bare facts" we mean (but not as an exclusive definition) extrinsic ascertained facts to which any eyewitness could bear testimony, such as the finding of a body and its condition, the place in which it is found, the persons by whom it was found, the arrest of a person accused, and so on. But as to alleged facts depending upon the testimony of some particular person which may or may not be true and may or may not be admissible in a court of justice, other considerations arise."

In support of his submission, Mr Kefu refers to the detailed account of how the accused fought with the deceased, how a knife was pulled from the deceased and how the accused then pulled a knife on another person while the deceased was staggering and suffering from his injuries. These are all matters, Mr Kefu submits, which go beyond the "bare facts" and still need to be proved and tested in a court of law.

Crown counsel is, of course, correct. It is fundamental to our system of justice that people are entitled to be tried solely on evidence given in court in a formal way and tested, if necessary, by cross examination. The courts recognise that in order to safeguard and guarantee this fundamental right of fair trial, it may be necessary from time to time to temporarily curtail freedom of media expression. The report of what the eyewitness ostensibly observed and told the reporter in this case may well turn out to be entirely accurate but that is not the point. In the interests of protecting the integrity of the justice system, the editor should have confined the article to the acceptable bare facts and withheld publication of the remaining details of the interview until after the trial of the accused.

Notwithstanding these observations, however, I am of the view that, when considered as a whole, the article is relatively mild compared with other publications in reported decisions in this area of the law and, in all the circumstances, I am not persuaded that it's influence will survive the long passage of time between publication and trial.

In other words, adopting as I do, the passage quoted above from the New Zealand Court of Appeal in the Gisborne Herald case, I find that the 17 months time lapse between the date of publication and the date of trial makes it quite impossible for me to conclude beyond reasonable doubt that there is a real risk, as opposed to a remote possibility, of interference with a fair trial.

For these reasons the application against each accused is dismissed. Having regard to my other findings, however, I decline to make any award of costs.

NUKU'ALOFA: 11 MARCH 2004

JUDGE