Details: Richard Naidu Guilty Verdict
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.