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Attorney General v 'Akau'ola [1999] TongaLawRp 15; [1999] Tonga LR 71 (14 April 1999)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

Cr 1319/98

Attorney General

v

‘Akau’ola

Ward CJ
12 April 1999; 14 April 1999

Contempt of Court — publication of comments on credibility of witnesses during trial — deputy editor responsible

On 9 September 1998 the trial of one ‘Isileli Pulu on a charge of criminal defamation was commenced in the Magistrates’ Court. The alleged defamatory matter in that case was a letter to the Taimi ‘o Tonga newspaper about a travel agency, Olympia Travel, in New Zealand operated by the wife of the Minister of Police. It suggested the Minister had authorised only that agency to deal with Tongan passports in New Zealand. At the trial, the Minister was called as a witness for the prosecution and stated he had never given such an authorisation. The officer in charge of the Immigration Branch, Chief Inspector Mele Halapua, also gave evidence that the Minister had never instructed her not to authorise any agency other than that of his wife. At the close of the prosecution case, the hearing was adjourned a number of times until 12 October. On 7 October the Taimi ‘o Tonga contained articles, stated to have been written by a reporter, ‘Ulu’alo Po’uhila. These articles contained comments on the credibility of some of the witnesses in the Court proceedings including a Cabinet Minister and a high ranking public officer. The defendant, Filokalafi ‘Akau’ola, was named in that issue of the newspaper as the deputy editor. The Attorney General filed a notice of motion to have the defendant committed for contempt of court on the grounds that the articles were likely to interfere with the course of justice in the Magistrates’ Court and were calculated to interfere with the fair trial of the proceedings in that court. The defendant contended that he was not involved in the publication of the articles.

Held:

1. It was a contempt of court to publish words tending or calculated to interfere with the course of justice. As such a finding may amount to a restriction on the right to freedom of speech, it was a remedy the courts should use only in the clearest of cases.

2. The articles were published in the newspaper during the course of the trial of ‘Isileli Pulu, they were knowingly referring to the evidence in that trial and, by their nature and content, they were clearly calculated to impair the court’s ability to determine the true facts in the case. There was no doubt that their publication was likely to prejudice the fair trial of the case and was intended so to do.