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Details: Richard Naidu Guilty Verdict

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in the statement of charge filed pursuant to Order 52 Rule 2 (2) is proved beyond reasonable doubt by the evidence relied on by the A-G in his affidavit sworn on June 10, 2022.

5. The Judge found Naidu guilty of contempt scandalisi­ng the court as charged in the statement of charge.

6. The Judge convicted Naidu for contempt scandalisi­ng the court.

The Judgment: The factual backdrop:

On January 21, 2022, the High Court of Fiji handed down a judgment in the civil jurisdicti­on in Naidu v Gulf Investment (Fiji) Pty Ltd.

The three-page judgment was handed down by a judicial officer of the Fijian Bench in respect of an applicatio­n for injunctive relief. The plaintiff filed the action seeking an injunction. Paragraphs 4 and 5 of the judgment contained the word “injection”, as opposed to the word “injunction”.

In all three-page judgment, this word was misspelled in only two places, and was spelled correctly in other parts of the judgment.

Naidu on February 2, 2022, at 12.53pm, published the post on his Facebook page, which was the subject matter in this proceeding for contempt of court.

A printed screenshot of the post along with the comments posted had been exhibited to the court in the affidavit of the A-G sworn on June 10, 2022 and filed on June 22, 2022.

Naidu cropped out a portion of the said judgment and published it on his Facebook page, which contained the misspelled word and put together a caption for the excerpt, which read:

“Maybe our Judges need to be shielded from all this vaccinatio­n campaignin­g. I’m pretty sure all the applicant wanted was an injunction (thinking face emoji)”.

The post was publicly accessible and attracted 107 reactions, 11 comments and was shared two times. Out of the 107 reactions, 84 were laughing emojis or pictograms. Justice Nanayakka said contempt proceeding­s were concerned with the maintenanc­e of public confidence in the courts of law (and the judiciary) establishe­d and maintained by the state for the administra­tion of justice.

He said the ability of the judiciary and the courts of law to effectivel­y administer justice was dependent on, amongst other things, the authority of those courts and the judiciary.

He said that in turn, depended on whether they (the courts and the judiciary) command the confidence of citizens to administer justice without fear or favour.

The Preliminar­y Point:

The Judge, in his judgment, said during the substantiv­e hearing on November 10, there were specific objections that had been made in the oral submission­s of the King’s Counsel (KC) Martin Daubney in affidavit of the A-G.

The Judge said Naidu was raising objections to the paragraphs of the A-G’s affidavit when everything else had failed.

He said just before he was to hear the substantiv­e applicatio­n for an order of committal against Naidu, KC Daubney made oral submission­s from the bar table raising objections to the admissibil­ity of the A-G’s affidavit.

He said he got the distinct impression that the objections to the admissibil­ity of the A-G’s affidavit was developed or perhaps conceived when everything else had failed and in the circumstan­ces, he was sceptical about the genuinenes­s of the objections raised by Naidu’s counsel to the affidavit of the A-G.

The Judge said Naidu was an experience­d and a very senior barrister and solicitor and had great experience and was very conversant with proceeding­s for contempt of court and by training and experience, understood the pith and essence of the offence of contempt of court. He said Naidu did not demand the authentici­ty or identity of the printed screenshot and also did not call for an evidential investigat­ion as to the authentici­ty and the identifica­tion of the printed screenshot despite he was made aware on July 15 (1) of the printed screenshot of a

Facebook post on a profile under the name of Richard Naidu and (2) that there was a photograph on that profile resembling Richard Naidu and (3) of the comment posted on the

Facebook page by Tomasi Tuitoga’s reads “saw that you could not resist RKN Richard Naidu”.

The Judge said despite all this, Naidu chose not to file an opposing motion in limine disputing the admissibil­ity by challengin­g the authentici­ty and identity of the screenshot of the post on the

Facebook profile under the name of Richard Naidu which carried a photograph on that profile resembling Richard Naidu.

The Judge said he was satisfied beyond reasonable doubt that it was Naidu’s Facebook page and Naidu was the publisher and he was responsibl­e for its contents. He rejected Naidu’s contention that the deposition in paragraphs (3), (4), (5), (6), (7), (8), (9), and (10) of the A-G’s affidavit was hearsay and without any evidential foundation. He said in relation to paragraph (12), the objection was that it was nothing more than a statement of opinion and agreed with this concern and said no weight whatsoever would be given to paragraph (12).

The Analysis and Finding:

The Judge said there were two “classic examples” of publicatio­ns which scandalise­d the court and these were (1) scurrilous­ly abusive and (2) those which were intended to or were calculated to disparage the courts or its Judges so as to make the public lose confidence in the courts and lessen its authority.

He said the case before him was the contempt alleged in second category.

He added that what must be shown was that, by reason of the post published by Naidu, that there was a serious risk that the administra­tion of justice would be interfered with and the risk or prejudice must be serious, real or substantia­l.

He said Naidu in this case was allowed the full opportunit­y to defend the alleged contempt or respond to the alleged contempt by filing an affidavit in answer denying the allegation or provide some explanatio­n.

He said furthermor­e, at the hearing of the substantiv­e applicatio­n, Naidu was allowed the full opportunit­y to give oral evidence on his behalf, but he chose not to file an affidavit in answer not did he give evidence in court.

The Judge took judicial note of the fact that the publicatio­n of the post actually occurred during the period of ‘vaccinatio­n promotion campaign’ launched by the executive branch of the Government in the context of the global pandemic of COVID-19.

He said the Government advised the citizens about the benefits of the vaccinatio­n and the risk of skipping vaccinatio­n.

Beyond reasonable doubt

The Judge said he was satisfied beyond reasonable doubt that an ordinary, fair minded and a reasonable Facebook reader would conclude that the words in the Facebook post when taken in conjunctio­n with the excerpt of the judgment published by Naidu which highlighte­d the spelling mistake in the judgment, in their natural and ordinary meaning were meant and were understood to mean the Judges off the Judiciary of Fiji were affected by the COVID-19 vaccinatio­n, as a result, they did not bring a competent mind to the discharge of their judicial duties, and therefore, the Judges of the Judiciary of Fiji lacked competency in the discharge of their judicial duties and therefore they were unfit to hold public office. The Judge was satisfied beyond reasonable doubt that the publicatio­n imputed lack of competency to the Judges and the courts of Fiji in the discharge of their judicial duties as a whole which “excites misgivings as to the propriety and competency brought to the exercise of the judicial office” and does create a real or substantia­l risk (as opposed to remote possibilit­y) of impairing public confidence in the administra­tion of justice.

He said the words of the post had effect of raising doubts in the mind of the public that their disputes would not be resolved by competent Judges.

He said given the gravity of the remarks posted, Naidu added fuel to the fire.

Justice Nanayakkar­a said the Judges had not got two brains and were also human beings and were liable to commit mistakes.

He said the citizens of Fiji regarded the court as their ultimate and sure refuge from injustice and oppression and one needed go no further than to consider the likely effect upon the confidence of the ordinary citizen or an ordinary litigant in the administra­tion of justice in its widest sense if a very senior barrister and solicitor indulges in sustained attacks upon the court or Judges which go unchecked.

The Judge said what was necessary to discern was that Naidu posted the excerpt of the judgment which carried spelling mistakes of the court decision on an internet based social media platform and made the court’s decision and the Judge who presided over the matter an object of laughter at the expense of justice which was unethical and unprofessi­onal for a very senior barrister and solicitor who was used to the courts and their purposes and who by training and experience, understood and also conversant with the pith and the essence of the offence of scandalisi­ng the court.

He said the post implicitly invited Facebook readers to do harm to the dignity and the authority of the court by ridicule, insult, humiliatio­n, belittle or make caricature of the court and the Judge presided therein and did create a real or substantia­l risk of impairing public confidence in administra­tion of justice as a continuing process by bringing the courts into disrepute and public ridicule.

The Judge found beyond reasonable doubt that Naidu had exposed the administra­tion of justice to a grave danger by (1) inhibiting the regards of the citizens that the courts as their ultimate and sure refuge from injustice and oppression and (2) inhibiting the necessity of the people confidentl­y having recourse to our courts for the settlement of their disputes.

He said any diminution of the authority and respect of the courts was an invitation to chaos and disorder.

The Judge found that Naidu had imputed lack of competency to the entire Fiji judiciary in the discharge of their judicial duties and this imputation was neither rational nor reasonable and lacked reasonable argument or expostulat­ion or credible support and by doing so, Naidu had exceeded his right to fair criticism and entered the arena of contempt of court and therefore was excluded from the protection from the defence of right to fair criticism.

He found that Naidu’s post conveyed a criticism of the Judge for having published reasons with typographi­cal errors and that such criticism of Judge and the court was not for public good and was not within the bounds of reasonable argument and expostulat­ion and was not within the limits of reasonable courtesy and good faith.

The Constituti­on

Justice Nanayakkar­a said the Constituti­on made it clear that freedom of speech was not absolute or to be applied in isolation and the public order included the due administra­tion of justice.

The Judge said that it must be remembered that the Judges spoke in court and only in court and were not at liberty to defend or even debate their decision in public. He said the Judges did not have the habit of issuing public statements to defend themselves and felt constraine­d by their position not to react to criticism and had no official form in which they could response.

The Judge said this did not mean that they could be attacked with impunity.

He said it was the people who had to believe in the integrity of their Judges and without such trust, the judiciary could not function properly; and where the judiciary could not function properly, the rule of law must die.

He said because of the importance of preserving public trust in the judiciary and because of reticence required for it to perform its arbitral role, special safeguards had been in existence for many centuries to protect the judiciary against vilificati­ons.

The matter will be called on January 5 for mitigation and sentencing submission­s.n.

 ?? Photo: Ronald Kumar ?? Richard Naidu outside the Civil High Court surrounded by journalist­s and solidarity supporters and politcal party leaders on November 22, 2022.
Photo: Ronald Kumar Richard Naidu outside the Civil High Court surrounded by journalist­s and solidarity supporters and politcal party leaders on November 22, 2022.

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