*Executive Claims Despite Receiving |
*Claims on credit card despite receiving Per Diem by Executive Management depict unethical business practice of management associated with double dipping which result in operating expenses for ATH and financial loss.
Meanwhile, we are told that the New Zealand based Jagannath Sami is now undergoing training at the Fiji Foreign Ministry in Suva after the Indian government approved his appointment in record time, to replace Kamlesh Prakash. |
Fijileaks: Did Barbara Malimali consult Graham Leung before putting his name forward to COC chair Sitiveni Rabuka for Leung to replace Mataiciwa? |
*Fiji Elections Office manager Legal Ana Salaivalu Mataiciwa had been appointed acting Supervisor of Elections following the suspension of Mohammed Saneem. | Things to Do: Remove Mataiciwa |
*The appointment came as a shock to Attorney-General Siromi Turaqa who had allegedly pushed the candidacy of his legal chum JIOJI MOMO BOSEIWAQA for the position with COC but according to reliable sources close to the interview process, Rabuka sided with Mataiciwa, for her long association with the Fiji Elections Office. |
Meanwhile, a chuffed Turaqa allegedly began to frustrate Mataiciwa's appointment at the FEO. He was angry that Mataiciwa had allegedly given him 'a telling off', to stop interfering in the affairs of the FEO. She reminded him that her office was an independent institution, and that she would not be taking directions from him. |
*The rest, as we say, is history, with her writing to Rabuka to replace Mataiciwa with Leung.
Fijileaks: We have always argued that despite Mick Beddoes fashionable new term to describe the i-Taukei as First Nation Peoples (at the expense of Indo-Fijians and other non I-taukei) in Fiji, there are age old customs and traditions which dictate that not all i-Taukei are equals in another part of Fiji, come rain, thunder, lightning or storm.
*But, Hallelujah, it was raining man. So what? Rabuka, a commoner, had to go into the Cakaudrove Provincial Council meeting soaking wet.
For he was a VULAGI I-TAUKEI in Somosomo.
RESIGN, BARBARA MALIMALI, for compromising the independence and integrity of the Fiji Elections Office.
A letter signed by Malimali and sighted by Fijileaks recommends Suva lawyer Graham Leung replace Mataiciwa. It is alleged Malimali wants to scupper FICAC probes, referred to it by Mataiciwa, against several high-profile Coalition Ministers. The 'Malimali Letter' was hand-delivered to the Constitutional Offices Commission on the afternoon of 2 April.
Fijileaks: We thought Fiji had voted to clean-up CORRUPTION and rampant NEPOTISM and Kila Vata appointments.
*It is sickening, really, that nearly 25 years later, the name of Graham Leung is still being bandied about as that 'Saviour in Shinning Knight' who should take control of the running of the Elections Office.
Come off, Fiji.
*We suggest Leung call on the Coalition government to make public the 'Report on the Great Council of Chiefs'.
*We don't know what the hell Leung and Baledrodroka recommended, with I-Taukei Minister Iferemi Vasu in bed with the convicted Chinese gangster Jason Zhong.
*There are allegations that Vasu interferred this week and got the stop order on Zhong lifted so the two could travel to Hong Kong.
*The weed and bonking sex Minister Lynda Tabuya has also flown out to Hong Kong, as if these Coalition lot are untouchable from the long arm of the law.
But what can Fiji expect, when Barbara Malimali has joined the club.
According to the information, a letter from the chair of the Electoral Commission Barbara Malimali was hand delivered to the Constitutional Offices Commission (COC) Tuesday afternoon requesting that Ms Mataiciwa be replaced by a former chairman of the Electoral Commission as the substantive SoE.
This is despite a media statement from Prime Minister Sitiveni Rabuka (27 Jan 2024) that the CoC had already decided on the substantive appointee and he could not see why the announcement was being delayed.
In response to the PM’s concern the Attorney General had then explained that they were in the process of working out the terms and conditions of the post before making a formal announcement. Ms Mataiciwa is still awaiting that letter of confirmation some two months later.
Following the receipt of this information yesterday afternoon, Labour Leader Mahendra Chaudhry wrote to the Chair of the Electoral Commission seeking confirmation whether or not a letter had been sent to the CoC secretariat seeking to remove Ms Mataiciwa.
The Commission chair has not responded to the letter.
“We believe from what has transpired that there are elements within government seeking to remove Ms Mataiciwa.
“Is it because she has referred complaints lodged against some senior Cabinet Ministers to FICAC?
“ If so, this is outright interference with the due process particularly as the appointment had already been made according to the Prime Minister who is the Chair of CoC,” said Labour Leader Mahendra Chaudhry.
At their quarterly meeting with the Acting Supervisor of Elections on Wednesday 3 April, all opposition political parties present (Labour, NFP, Unity and All Peoples Party had expressed confidence in Ms Mataiciwa and had requested confirmation of her appointment without any further delay.
“We believe the Constitutional Offices Commission had decided to appoint Ms Mataiciwa who has been acting in that position since January 2023,” said Mr Chaudhry.
This is despite a media statement from Prime Minister Sitiveni Rabuka (27 Jan 2024) that the CoC had already decided on the substantive appointee and he could not see why the announcement was being delayed.
In response to the PM’s concern the Attorney General had then explained that they were in the process of working out the terms and conditions of the post before making a formal announcement. Ms Mataiciwa is still awaiting that letter of confirmation some two months later.
Following the receipt of this information yesterday afternoon, Labour Leader Mahendra Chaudhry wrote to the Chair of the Electoral Commission seeking confirmation whether or not a letter had been sent to the CoC secretariat seeking to remove Ms Mataiciwa.
The Commission chair has not responded to the letter.
“We believe from what has transpired that there are elements within government seeking to remove Ms Mataiciwa.
“Is it because she has referred complaints lodged against some senior Cabinet Ministers to FICAC?
“ If so, this is outright interference with the due process particularly as the appointment had already been made according to the Prime Minister who is the Chair of CoC,” said Labour Leader Mahendra Chaudhry.
At their quarterly meeting with the Acting Supervisor of Elections on Wednesday 3 April, all opposition political parties present (Labour, NFP, Unity and All Peoples Party had expressed confidence in Ms Mataiciwa and had requested confirmation of her appointment without any further delay.
“We believe the Constitutional Offices Commission had decided to appoint Ms Mataiciwa who has been acting in that position since January 2023,” said Mr Chaudhry.
By our Founding Editor-in-Chief, Fiji's Daily Post, 4 December 2005
Fijileaks: KARAVAKI has resurfaced as Fiji National University Chancellor
*On 1 February 1994, SALESI TEMO was appointed a resident magistrate under the racist 1990 Constitution of Fiji, a constitution that was imposed on Fiji after Sitiveni Rabuka's two racially motivated coups. The Constitution had disenfranchised the Indo-Fijians and many serving magistrates and judges of Indo-Fijian origin were removed and replaced by i-Taukei lawyers.
*In 2001, an i-taukei businessman TIMOCI NACO and Salesi Temo ended up in a shouting match at the Suva Magistrates Court, resulting in Naco being locked up by Temo, who claimed he was exercising his powers under the Contempt of Court Act.
*However, the Fiji High Court judge ROGER COVENTRY ruled that Temo did not have power under section 136 Penal Code to order the arrest or detention of Naco.
*That section is aimed at “contempts committed in the face of the court.” There was no “judicial proceeding” being disrupted by Naco’s behaviour. *Temo was in his chambers working, albeit on judgment writing. Temo accepted, in evidence, he may not have had power in these circumstances to order the arrest or detention of Naco.
*He does state he believed himself to have such power and did so in good faith.
Justice Roger Coventry: 'I find that Mr Temo did believe he was in the limits of his jurisdiction when he ordered detention of Mr Naco and did so in good faith. The circumstances as I have found them support this. There is nothing to rebut it.'.
*One does NOT need a Master's Degree to inform Temo that he doesn't have the power to refer Magistrate Seini Puamau to Fiji Police for Contempt of Court.
Naco v Temo [2005] FJHC 447; HBC0138J.2002S (21 October 2005)
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. 0138 of 2002
Between:
TIMOCI NACO
Plaintiff
- and -
SALESI TEMO
First Defendant
- and -
ATTORNEY GENERAL OF FIJI
Second Defendant
Counsel: Plaintiff in Person
Mr. Keteca and Ms. Karen for the First and Second Defendants
Date of Hearing: 23rd May, 2005
Date of Judgment: 21st October, 2005
JUDGMENT
[1] The plaintiff, Mr Naco , runs a business. On 26 November 2001 he wrote to the Senior Court Officer at Suva Magistrates Court requesting a copy of the decision in a 1994 criminal case. He states he required it in relation to the business.
[2] The Senior Court Officer replied by letter dated 7 December 2001. He said:
“Your 26 November 2001 letter refer (sic).
It was submitted to the Chief Magistrate for consideration and directions.
I am directed to advise you that your request (for a copy judgment) has been denied on the grounds that no good reason is provided for the request.”
[3] Mr Naco did not write in stating his reason. On 20 December at about 2 p.m. he went to the Magistrates Court Registry to see Mr Singh. He was unavailable. Mr Naco went to see the acting Chief Registrar (he refers to him as the Deputy Registrar) with Mr Singh’s letter. The Registrar wrote, by hand, on the letter of 7 December
“SCO Magistrates Court.
Please attend to Mr Naco ’s request for a judgment copy which he said that he would like to use as an “authority for a case he is dealing (as his reason)” It’s a public document and if he is required to pay a fee, then charge it
Thank you.”
and then signed and dated it.
[4] Armed with this Mr Naco returned to the Magistrates Court Registry. There is a door in from the outside walkway and then a counter (about 80 centimeters wide) at which members of the public are attended to.
[5] It is from this point on there is a dispute as to what happened.
[6] Mr Naco states that he showed the note to a girl in the Registry. She took it to the Chief Magistrate. The latter’s secretary called him outside. He gave the letter to her she went away and came back and said “The Chief Magistrate doesn’t want to see you.”
[7] Mr Naco accepts his normal speaking voice is loud. He told her “He’s not God. I want to see him. She went in. Next thing is police came and I was arrested and taken to a cell. Nothing else was said. The police just said “you come down with us.” I went down to the cell at the Government Buildings.”
[8] He says he was there for about an hour. He was the taken up into No. 1 Court. The Chief Magistrate was there and asked him what he wanted. Mr Naco says he told him about the request in the letter and the Chief Magistrate replied he hadn’t seen it. Mr Naco said that was between him and the SCO. The Chief Magistrate told him not to be cheeky and that he could send him to gaol. Mr Naco then says “I questioned ‘Why am I in court? I am never charged with an offence.’ After a while he told me to go. He didn’t reply (to the question) why am I in court, never charged?”
[9] In cross-examination he denied banging the counter in the registry at the second visit. He denied being threatening or abusive or smelling of alcohol. He said if she (the secretary) was scared then “she wouldn’t come and stand with me alone.” The plaintiff is a well built man, sixty-seven years of age, the secretary is a slim, short woman. He said he didn’t know if he disturbed the Chief Magistrate. He accepted he was angry and that he heard and saw the Chief Magistrate when he said “arrest this fellow.” He denied being abusive to the Chief Magistrate in Court.
[10] The plaintiff called Tomasi Tabulauvere in support. He had had lunch with the plaintiff and no alcohol was consumed. “They don’t sell liquor there.” He corroborates the plaintiff’s sequence of events. He heard no banging on the counter. When he was told the Chief Magistrate’s reply he says “I heard the plaintiff was not a very happy man.” When the police came to take him away he says “The plaintiff was not a happy man again. He wanted to know what were the charges. There were exchanges between the two. I put in my little bit.” The plaintiff was taken away. Mr Tabulauvere was not in Court later that day.
[11] In cross-examination he stated “Mr Naco was angry. I have known him for so many years. He has a loud voice. He was not demanding.” He disagreed with the suggestion Mr Naco was abusive or violent towards registry staff.
[12] The defendants called five witnesses, Ravinesh Raj, Assistant Court Officer, Wati Volavola, Assistant Court Officer, Asillika Masikolikoli, Assistant Court Officer, Roshni Ram, Secretary to the Chief Magistrate and the first defendant Salesi Temo.
[13] The first three gave evidence to the effect that when Mr Naco returned with the hand written note and was refused the judgment he became loud, angry, demanding and abusive. He banged the counter. He was attracting attention. Ravinesh Raj said “We tried to cool him. The situation was getting out of hand. He was not the only member of the public at the counter... I felt threatened by his appearance because of his demanding nature .... He might have assaulted me in the process.”
[14] The Chief Magistrate’s Secretary, Roshni Ram saw Mr Naco in the walkaway. She thought it might help if she saw him. Naco had a raised voice and seemed angry. She considered it her duty to show the letter to the Chief Magistrate, and did so. Mr Temo said he stood by what he had said. He was, she believed, writing a judgment. She relayed the message to Mr Naco , who was then “very angry and shouting and wanted Temo to tell him these things personally. She went back to Mr Temo and returned again. “ Naco was then very angry. Shouting at the top of his voice ‘Who the hell does he think he is. Does he think he is God.’ He was advancing to me, when he was very close I could smell liquor on his breath.... I was scared, very frightened... Temo opened his window and asked the police officers to take Naco to the cells. When he was talking at the counter I didn’t feel threatened. In the corridor when he was advancing and came close I thought he was going to hit me. He was really angry.”
[15] Salesi Temo gave evidence. He was appointed on 1 February 1994 and was a Resident Magistrate at the time of these events. On the afternoon of 20 December he was in chambers. He was very busy writing judgments. He remembers his Secretary saying that Mr Naco wanted a judgment and that he’d dealt with the matter. No reason had been given for the request. He said he doesn’t normally see members of the public without an appointment. He has to be careful.
[16] Therefore Mr Temo instructed his Secretary to tell Mr Naco as there was no reason given for the request there was no point in seeing him. Had he been informed of the reason he would have given access to the judgment.
[17] Mr. Temo said his Secretary was coming in and out. He could hear a commotion outside, even though the windows were closed, and the air conditioner was on. Mrs Ram briefed him in what was happening and told him she could smell liquor on his breath. He did not feel safe to see Mr Naco . When his Secretary said she had to stand between two police officers, “I had to use powers under the Courts Act to protect myself and Court Staff. I have looked at section 136(2). My understanding is Parliament has given powers if there is contempt in the face of the Court. [They have] to be used carefully and exceptionally. I had to act given the level of abuse and the briefing from my Secretary.... I expected the police officer to arrest you and take you to the police station.” Mr Temo said the police didn’t appear to be acting so he ordered the plaintiff’s detention.
[18] An hour later in Court he says he explained to Mr Naco what was happening but it turned into a shouting match. Mr Naco wouldn’t listen. He was told to be careful as he might be formally charged with contempt. Mr Naco was shouting at the top of his voice. He told Mr Naco to go and he left. He said he had not come across such behaviour before in Fiji. He stated he might have been incorrect in his use of section 136(2) Criminal Procedure Code in these circumstances.
[19] The Plaintiff’s amended statement of claim reads from paragraph 17 “the first Defendant arbitrarily deprived the Plaintiff of his liberty and detained the Plaintiff without been (sic) charged for an offence. The First Defendant was breaching the constitutional rights of the Plaintiff, causing the plaintiff physical and mental stress and strain, such conduct was unfair, unjust, unreasonable, prejudiced and unconstitutional and denied the Plaintiff natural justice.
Wherefor the Plaintiff claims against the Defendants:-
(a) An Order that the First Defendant breached the Constitutional Rights of the Plaintiff namely:
(b) An Order that the First Defendant’s actions were unreasonable and outside the scope and duties of his role as Magistrate:
(c) General Damages;
(d) Any other relief which to this Honourable Court may seem just;
(e) Cost of this action.”
[20] The amended defence denied Mr Naco ’s factual allegations and in particular in respect of the first defendant relied upon section 65(1) Magistrates Court Act, Chapter 14.
[21] Section 65(1) is headed “Protection of Judicial Officers” and reads:
“65. – (1) No magistrate, justice of the peace or other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty whether or not within the limits of his jurisdiction provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of.”
[22] The plaintiff and defendants gave written closing submissions. The first defendant stated he was acting under section 136(2) of the Penal Code.
Section 136(1) and (2) of the Penal Code state:
“136. - (1) Any person who –
(a) within the premises in which any judicial proceeding is being had or taken, or within the precincts of the same, shows disrespect, in speech or manner, to or with reference to such proceeding, or any person before whom such proceeding is being had or taken; or
(b) - (f)..........
(g) causes an obstruction or disturbance in the course of a judicial proceeding; or
(h) - (l) .......
(m) commits any other act of intentional disrespect to any judicial proceeding, or to any person before whom such proceeding is being had or taken.
is guilty of an offence, and is liable to imprisonment for three months.
136- (2) When an offence against paragraphs (a),.... (g)... or (m) of subsection (1) is committed in view of the court, other than a magistrate’s court presided over by a third class magistrate, the court may cause the offender to be detained in custody, and at any time before the rising of the court on the same day may take cognizance of the offence and sentence the offender to a fine not exceeding forty dollars or in default of payment to imprisonment for a term not exceeding one month.”
[24] The first defendant argues that if in fact he did exceed any power under section 136 then it was done in good faith and he is protected by section 65(1) of Magistrates Court Act.
[25] Neither party has addressed the question as to whether the kind of protection afforded by section 65 is available to the State. And, if so, whether or not it is constitutional.
[26] Section 3 Crown Proceedings Act Chapter 24 makes the Crown liable in tort as set out, but by subsection (5) states “No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connexion with the execution of judicial process.”
But this is a claim under the Constitution.
[27] In broad terms, there is little dispute on the facts. Mr Naco had a note from the deputy registrar saying he was entitled to a copy judgment. This was denied to him. He raised his face, became angry and made a remark about the ‘Chief Magistrate’. The latter then ordered him to be detained and taken to a cell. He was there for approximately an hour before being brought to Court. There was a further exchange of words and he was released.
[28] There is no evidence to show that at any stage he was told why or by what power he was being arrested or detained. There is no evidence to show that, when he was brought into court, he was told what power was being exercised or purportedly exercised. He was only told “...be careful, or you might be formally charged with contempt.”
[29] I find that all parties and witnesses were doing their best to recollect what happened. This incident happened nearly three and a half years ago.
[30] There were many discrepancies in the evidence of the defendants’ witnesses.
[31] I find that Mr Naco did loose his temper and became angry when, armed with the note, he was refused a copy judgment. He has, in ordinary speaking, a powerful voice. He raised his voice, was angry and said, referring to the Chief Magistrate, “He’s not God. I want to see him.” I accept he did bang the counter a few times. Tomasi Tabulavuere stated the plaintiff had not drunk alcohol. I accept this.
[32] Mr Naco says he is aged 67 years. He still appears to be a fit and well built man. Given the circumstances I accept that the defence witnesses felt abused and threatened. Mrs Roshni Ram, the first defendant’s secretary, showed calm and courage in the circumstances.
[33] I accept the evidence of the first defendant, Mr Temo. Whilst judgment writing he had, outside his office, a man who was loud and demanding to see him, despite the messages he had sent. He had had relayed to him what was happening and the concerns of his staff. He could hear a commotion despite closed windows and air-conditioning. He opened his window and saw Mr Naco . There were police officers there who were apparently doing nothing.
[34] Mr Temo accepts he gave the instruction for the plaintiff to be taken to the cells. About an hour later there was the Court appearance and release.
[35] Mr Temo did not have power under section 136 Penal Code to order the arrest or detention of Mr Naco . That section is aimed at “ contempts committed in the face of the court.” There was no “judicial proceeding” being disrupted by Mr Naco ’s behaviour. The first defendant was in his chambers working, albeit on judgment writing.
[36] Mr Temo accepted, in evidence, he may not have had power in these circumstances to order the arrest or detention of Mr Naco . He does state he believed himself to have such power and did so in good faith.
[37] I find that Mr Temo did believe he was in the limits of his jurisdiction when he ordered detention of Mr Naco and did so in good faith. The circumstances as I have found them support this. There is nothing to rebut it.
[38] The reasons for this immunity are well known. Accordingly I must dismiss the action against the first defendant.
[39] I turn to the second defendant. In his original statement of claim the plaintiff stated, at paragraph 17 and in the claim that he was alleging breaches of his constitutional rights. In his amended statement of claim he specified precisely the rights he was referring to.
[40] The High Court (Constitutional Redress) Rules 1998 set out the procedures for bringing an action for constitutional redress. In a number of respects this application does not comply with these Rules. The second defendant has not taken this point. Mr Naco is a litigant in person. It has been clear from the outset constitutional redress is being sought, and precisely which rights are involved from the time of the amended claim. The Attorney-General has been involved throughout.
[41] I find no party has been prejudiced by the failure to comply with the Rules. Accordingly I waive any breaches. I do not find there was an unreasonable time between the date of the incident, 20 December 2001, and the launch of proceedings, 2 April 2002.
[42] I find that Mr Naco was deprived of his liberty for approximately one hour. That deprivation might have been lawful had it been done by someone who had a power of arrest on the reasonable suspicion that Mr Naco had committed an offence for which he could be arrested. That is not the case here. No other exceptions can apply.
Accordingly I find there has been a breach by the State as represented by the second defendant of Mr Naco ’s right under Article 23(1).
[43] I can find no evidence that begins to support Mr Naco ’s contention that there was a breach of his rights under Article 25(1), “Freedom from cruel or degrading treatment.”
[44] I find there has been a breach by the State as represented by the second defendant of Mr Naco ’s right under Article 27(1)(a) in that Mr Naco , having been detained was not “informed promptly in a language that he... understands of the reasons for his.... detention and of the nature of any charge that may be brought;”
[45] Article 28(1) states “Every person charged with an offence has the right:” and there is then a list set out. Mr Naco was not charged with any offence, so this Article is not engaged.
[46] There was one outstanding question on liability. Neither party had addressed it at any stage, including submissions.
[47] This was a provisional judgment. It is now finalised. The parties were given a further hearing date. They were to research and be prepared to argue the following questions:
(1) Is there any statute or authority which provides immunity to the state from an action for constitutional redress for acts or omissions of a judicial officer bona fide acting in the exercise or purported exercise of his or her judicial authority?
(2) If so, is such a provision constitutional?
Argument was to be directed to the two questions only.
[48] Neither party has sought to argue that the answer to question 1 in paragraph 47 above is “yes”. In these circumstances the parties addressed me on the quantum of damages.
[49] There are a number of authorities concerning the false imprisonment of individuals. Awards vary from approximately $1,000.00 to several thousand dollars. I look to the individual concerned, Mr. Naco , and the circumstances.
[50] Mr. Naco is a mature and self-assured man. The length of his false imprisonment was approximately one hour in the cells at the court, he was brought into court and his liberty restored. There is no suggestion of any temporary or permanent injury to him above and beyond that period of loss of liberty. There is no claim for punitive or exemplary damages.
[51] Mr. Naco does argue that his damages should be higher than normal on the basis that it was a judicial officer and not, for example, a police officer or ordinary member of the public who wrongfully deprived him of his liberty. I find I cannot take this factor into consideration. By damages Mr. Naco is being compensated for his loss of liberty and breach of his constitutional rights and not specifically for the person who brought that about. Further, I did find at paragraph 42 above that “that deprivation might have been lawful had it been done by someone who had a power of arrest on the reasonable suspicion that Mr. Naco had committed an offence for which he could be arrested”.
[52] To some extent the plaintiff has been the author of his own misfortune. That does not mean there has been no breach of his constitutional right or that he should not be compensated therefor. However, his case is not in the realms where higher damages have been awarded, e.g. the shackling of a child by the police.
[53] In all the circumstances I find that the correct figure for damages in this case is the sum of $1,000.00. I find that is a reasonable sum for the first hour of loss of liberty. Had there been continuing hours of false imprisonment or breach of rights the amount per hour would have been less. This recognises and marks the relative greater importance of the initial loss of liberty.
[54] In arriving at this figure and these principles I have respectfully adopted the reasoning and quantum set by Mrs. Justice Pulea in Civil Action HBC0307 of 2004 Eseroma Ledua v. Fiji Police Force and Others. She examines the principles at pages 6 to 12 under the headings (i) False Imprisonment (ii) Quantum of Damages and (iii) The submissions and Thompson Guidelines. In the case of a businessman wrongly imprisoned for twenty-four hours she set a figure of $1,000.00 for the first hour. This case, in this respect, is the same.
[55] Mr. Naco has acted as a litigant in person throughout. It is clear that he does know a considerable amount about the legal process. He is not entitled to costs as though he was a professional lawyer acting for a client. However, he is entitled to his outgoings and disbursements.
I assess these at $1,250.00. I order that the damages and costs are paid by 3.00 p.m. on the 21st of November, 2005.
[R.J. Coventry]
JUDGE
AT SUVA
CIVIL JURISDICTION
Civil Action No. 0138 of 2002
Between:
TIMOCI NACO
Plaintiff
- and -
SALESI TEMO
First Defendant
- and -
ATTORNEY GENERAL OF FIJI
Second Defendant
Counsel: Plaintiff in Person
Mr. Keteca and Ms. Karen for the First and Second Defendants
Date of Hearing: 23rd May, 2005
Date of Judgment: 21st October, 2005
JUDGMENT
[1] The plaintiff, Mr Naco , runs a business. On 26 November 2001 he wrote to the Senior Court Officer at Suva Magistrates Court requesting a copy of the decision in a 1994 criminal case. He states he required it in relation to the business.
[2] The Senior Court Officer replied by letter dated 7 December 2001. He said:
“Your 26 November 2001 letter refer (sic).
It was submitted to the Chief Magistrate for consideration and directions.
I am directed to advise you that your request (for a copy judgment) has been denied on the grounds that no good reason is provided for the request.”
[3] Mr Naco did not write in stating his reason. On 20 December at about 2 p.m. he went to the Magistrates Court Registry to see Mr Singh. He was unavailable. Mr Naco went to see the acting Chief Registrar (he refers to him as the Deputy Registrar) with Mr Singh’s letter. The Registrar wrote, by hand, on the letter of 7 December
“SCO Magistrates Court.
Please attend to Mr Naco ’s request for a judgment copy which he said that he would like to use as an “authority for a case he is dealing (as his reason)” It’s a public document and if he is required to pay a fee, then charge it
Thank you.”
and then signed and dated it.
[4] Armed with this Mr Naco returned to the Magistrates Court Registry. There is a door in from the outside walkway and then a counter (about 80 centimeters wide) at which members of the public are attended to.
[5] It is from this point on there is a dispute as to what happened.
[6] Mr Naco states that he showed the note to a girl in the Registry. She took it to the Chief Magistrate. The latter’s secretary called him outside. He gave the letter to her she went away and came back and said “The Chief Magistrate doesn’t want to see you.”
[7] Mr Naco accepts his normal speaking voice is loud. He told her “He’s not God. I want to see him. She went in. Next thing is police came and I was arrested and taken to a cell. Nothing else was said. The police just said “you come down with us.” I went down to the cell at the Government Buildings.”
[8] He says he was there for about an hour. He was the taken up into No. 1 Court. The Chief Magistrate was there and asked him what he wanted. Mr Naco says he told him about the request in the letter and the Chief Magistrate replied he hadn’t seen it. Mr Naco said that was between him and the SCO. The Chief Magistrate told him not to be cheeky and that he could send him to gaol. Mr Naco then says “I questioned ‘Why am I in court? I am never charged with an offence.’ After a while he told me to go. He didn’t reply (to the question) why am I in court, never charged?”
[9] In cross-examination he denied banging the counter in the registry at the second visit. He denied being threatening or abusive or smelling of alcohol. He said if she (the secretary) was scared then “she wouldn’t come and stand with me alone.” The plaintiff is a well built man, sixty-seven years of age, the secretary is a slim, short woman. He said he didn’t know if he disturbed the Chief Magistrate. He accepted he was angry and that he heard and saw the Chief Magistrate when he said “arrest this fellow.” He denied being abusive to the Chief Magistrate in Court.
[10] The plaintiff called Tomasi Tabulauvere in support. He had had lunch with the plaintiff and no alcohol was consumed. “They don’t sell liquor there.” He corroborates the plaintiff’s sequence of events. He heard no banging on the counter. When he was told the Chief Magistrate’s reply he says “I heard the plaintiff was not a very happy man.” When the police came to take him away he says “The plaintiff was not a happy man again. He wanted to know what were the charges. There were exchanges between the two. I put in my little bit.” The plaintiff was taken away. Mr Tabulauvere was not in Court later that day.
[11] In cross-examination he stated “Mr Naco was angry. I have known him for so many years. He has a loud voice. He was not demanding.” He disagreed with the suggestion Mr Naco was abusive or violent towards registry staff.
[12] The defendants called five witnesses, Ravinesh Raj, Assistant Court Officer, Wati Volavola, Assistant Court Officer, Asillika Masikolikoli, Assistant Court Officer, Roshni Ram, Secretary to the Chief Magistrate and the first defendant Salesi Temo.
[13] The first three gave evidence to the effect that when Mr Naco returned with the hand written note and was refused the judgment he became loud, angry, demanding and abusive. He banged the counter. He was attracting attention. Ravinesh Raj said “We tried to cool him. The situation was getting out of hand. He was not the only member of the public at the counter... I felt threatened by his appearance because of his demanding nature .... He might have assaulted me in the process.”
[14] The Chief Magistrate’s Secretary, Roshni Ram saw Mr Naco in the walkaway. She thought it might help if she saw him. Naco had a raised voice and seemed angry. She considered it her duty to show the letter to the Chief Magistrate, and did so. Mr Temo said he stood by what he had said. He was, she believed, writing a judgment. She relayed the message to Mr Naco , who was then “very angry and shouting and wanted Temo to tell him these things personally. She went back to Mr Temo and returned again. “ Naco was then very angry. Shouting at the top of his voice ‘Who the hell does he think he is. Does he think he is God.’ He was advancing to me, when he was very close I could smell liquor on his breath.... I was scared, very frightened... Temo opened his window and asked the police officers to take Naco to the cells. When he was talking at the counter I didn’t feel threatened. In the corridor when he was advancing and came close I thought he was going to hit me. He was really angry.”
[15] Salesi Temo gave evidence. He was appointed on 1 February 1994 and was a Resident Magistrate at the time of these events. On the afternoon of 20 December he was in chambers. He was very busy writing judgments. He remembers his Secretary saying that Mr Naco wanted a judgment and that he’d dealt with the matter. No reason had been given for the request. He said he doesn’t normally see members of the public without an appointment. He has to be careful.
[16] Therefore Mr Temo instructed his Secretary to tell Mr Naco as there was no reason given for the request there was no point in seeing him. Had he been informed of the reason he would have given access to the judgment.
[17] Mr. Temo said his Secretary was coming in and out. He could hear a commotion outside, even though the windows were closed, and the air conditioner was on. Mrs Ram briefed him in what was happening and told him she could smell liquor on his breath. He did not feel safe to see Mr Naco . When his Secretary said she had to stand between two police officers, “I had to use powers under the Courts Act to protect myself and Court Staff. I have looked at section 136(2). My understanding is Parliament has given powers if there is contempt in the face of the Court. [They have] to be used carefully and exceptionally. I had to act given the level of abuse and the briefing from my Secretary.... I expected the police officer to arrest you and take you to the police station.” Mr Temo said the police didn’t appear to be acting so he ordered the plaintiff’s detention.
[18] An hour later in Court he says he explained to Mr Naco what was happening but it turned into a shouting match. Mr Naco wouldn’t listen. He was told to be careful as he might be formally charged with contempt. Mr Naco was shouting at the top of his voice. He told Mr Naco to go and he left. He said he had not come across such behaviour before in Fiji. He stated he might have been incorrect in his use of section 136(2) Criminal Procedure Code in these circumstances.
[19] The Plaintiff’s amended statement of claim reads from paragraph 17 “the first Defendant arbitrarily deprived the Plaintiff of his liberty and detained the Plaintiff without been (sic) charged for an offence. The First Defendant was breaching the constitutional rights of the Plaintiff, causing the plaintiff physical and mental stress and strain, such conduct was unfair, unjust, unreasonable, prejudiced and unconstitutional and denied the Plaintiff natural justice.
Wherefor the Plaintiff claims against the Defendants:-
(a) An Order that the First Defendant breached the Constitutional Rights of the Plaintiff namely:
- (i) S23 (1) A person must not be deprived of personal liberty.
- (ii) S25 (1) Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane degrading or disproportionately severe treatment or punishment.
- (iii) S27(1) Every person who is arrested or detained has the right:
- (a) to be informed promptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brought.
- (iv) S28(1) Every person charged with an offence has the right:
(b) An Order that the First Defendant’s actions were unreasonable and outside the scope and duties of his role as Magistrate:
(c) General Damages;
(d) Any other relief which to this Honourable Court may seem just;
(e) Cost of this action.”
[20] The amended defence denied Mr Naco ’s factual allegations and in particular in respect of the first defendant relied upon section 65(1) Magistrates Court Act, Chapter 14.
[21] Section 65(1) is headed “Protection of Judicial Officers” and reads:
“65. – (1) No magistrate, justice of the peace or other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty whether or not within the limits of his jurisdiction provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of.”
[22] The plaintiff and defendants gave written closing submissions. The first defendant stated he was acting under section 136(2) of the Penal Code.
Section 136(1) and (2) of the Penal Code state:
“136. - (1) Any person who –
(a) within the premises in which any judicial proceeding is being had or taken, or within the precincts of the same, shows disrespect, in speech or manner, to or with reference to such proceeding, or any person before whom such proceeding is being had or taken; or
(b) - (f)..........
(g) causes an obstruction or disturbance in the course of a judicial proceeding; or
(h) - (l) .......
(m) commits any other act of intentional disrespect to any judicial proceeding, or to any person before whom such proceeding is being had or taken.
is guilty of an offence, and is liable to imprisonment for three months.
136- (2) When an offence against paragraphs (a),.... (g)... or (m) of subsection (1) is committed in view of the court, other than a magistrate’s court presided over by a third class magistrate, the court may cause the offender to be detained in custody, and at any time before the rising of the court on the same day may take cognizance of the offence and sentence the offender to a fine not exceeding forty dollars or in default of payment to imprisonment for a term not exceeding one month.”
[24] The first defendant argues that if in fact he did exceed any power under section 136 then it was done in good faith and he is protected by section 65(1) of Magistrates Court Act.
[25] Neither party has addressed the question as to whether the kind of protection afforded by section 65 is available to the State. And, if so, whether or not it is constitutional.
[26] Section 3 Crown Proceedings Act Chapter 24 makes the Crown liable in tort as set out, but by subsection (5) states “No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connexion with the execution of judicial process.”
But this is a claim under the Constitution.
[27] In broad terms, there is little dispute on the facts. Mr Naco had a note from the deputy registrar saying he was entitled to a copy judgment. This was denied to him. He raised his face, became angry and made a remark about the ‘Chief Magistrate’. The latter then ordered him to be detained and taken to a cell. He was there for approximately an hour before being brought to Court. There was a further exchange of words and he was released.
[28] There is no evidence to show that at any stage he was told why or by what power he was being arrested or detained. There is no evidence to show that, when he was brought into court, he was told what power was being exercised or purportedly exercised. He was only told “...be careful, or you might be formally charged with contempt.”
[29] I find that all parties and witnesses were doing their best to recollect what happened. This incident happened nearly three and a half years ago.
[30] There were many discrepancies in the evidence of the defendants’ witnesses.
[31] I find that Mr Naco did loose his temper and became angry when, armed with the note, he was refused a copy judgment. He has, in ordinary speaking, a powerful voice. He raised his voice, was angry and said, referring to the Chief Magistrate, “He’s not God. I want to see him.” I accept he did bang the counter a few times. Tomasi Tabulavuere stated the plaintiff had not drunk alcohol. I accept this.
[32] Mr Naco says he is aged 67 years. He still appears to be a fit and well built man. Given the circumstances I accept that the defence witnesses felt abused and threatened. Mrs Roshni Ram, the first defendant’s secretary, showed calm and courage in the circumstances.
[33] I accept the evidence of the first defendant, Mr Temo. Whilst judgment writing he had, outside his office, a man who was loud and demanding to see him, despite the messages he had sent. He had had relayed to him what was happening and the concerns of his staff. He could hear a commotion despite closed windows and air-conditioning. He opened his window and saw Mr Naco . There were police officers there who were apparently doing nothing.
[34] Mr Temo accepts he gave the instruction for the plaintiff to be taken to the cells. About an hour later there was the Court appearance and release.
[35] Mr Temo did not have power under section 136 Penal Code to order the arrest or detention of Mr Naco . That section is aimed at “ contempts committed in the face of the court.” There was no “judicial proceeding” being disrupted by Mr Naco ’s behaviour. The first defendant was in his chambers working, albeit on judgment writing.
[36] Mr Temo accepted, in evidence, he may not have had power in these circumstances to order the arrest or detention of Mr Naco . He does state he believed himself to have such power and did so in good faith.
[37] I find that Mr Temo did believe he was in the limits of his jurisdiction when he ordered detention of Mr Naco and did so in good faith. The circumstances as I have found them support this. There is nothing to rebut it.
[38] The reasons for this immunity are well known. Accordingly I must dismiss the action against the first defendant.
[39] I turn to the second defendant. In his original statement of claim the plaintiff stated, at paragraph 17 and in the claim that he was alleging breaches of his constitutional rights. In his amended statement of claim he specified precisely the rights he was referring to.
[40] The High Court (Constitutional Redress) Rules 1998 set out the procedures for bringing an action for constitutional redress. In a number of respects this application does not comply with these Rules. The second defendant has not taken this point. Mr Naco is a litigant in person. It has been clear from the outset constitutional redress is being sought, and precisely which rights are involved from the time of the amended claim. The Attorney-General has been involved throughout.
[41] I find no party has been prejudiced by the failure to comply with the Rules. Accordingly I waive any breaches. I do not find there was an unreasonable time between the date of the incident, 20 December 2001, and the launch of proceedings, 2 April 2002.
[42] I find that Mr Naco was deprived of his liberty for approximately one hour. That deprivation might have been lawful had it been done by someone who had a power of arrest on the reasonable suspicion that Mr Naco had committed an offence for which he could be arrested. That is not the case here. No other exceptions can apply.
Accordingly I find there has been a breach by the State as represented by the second defendant of Mr Naco ’s right under Article 23(1).
[43] I can find no evidence that begins to support Mr Naco ’s contention that there was a breach of his rights under Article 25(1), “Freedom from cruel or degrading treatment.”
[44] I find there has been a breach by the State as represented by the second defendant of Mr Naco ’s right under Article 27(1)(a) in that Mr Naco , having been detained was not “informed promptly in a language that he... understands of the reasons for his.... detention and of the nature of any charge that may be brought;”
[45] Article 28(1) states “Every person charged with an offence has the right:” and there is then a list set out. Mr Naco was not charged with any offence, so this Article is not engaged.
[46] There was one outstanding question on liability. Neither party had addressed it at any stage, including submissions.
[47] This was a provisional judgment. It is now finalised. The parties were given a further hearing date. They were to research and be prepared to argue the following questions:
(1) Is there any statute or authority which provides immunity to the state from an action for constitutional redress for acts or omissions of a judicial officer bona fide acting in the exercise or purported exercise of his or her judicial authority?
(2) If so, is such a provision constitutional?
Argument was to be directed to the two questions only.
[48] Neither party has sought to argue that the answer to question 1 in paragraph 47 above is “yes”. In these circumstances the parties addressed me on the quantum of damages.
[49] There are a number of authorities concerning the false imprisonment of individuals. Awards vary from approximately $1,000.00 to several thousand dollars. I look to the individual concerned, Mr. Naco , and the circumstances.
[50] Mr. Naco is a mature and self-assured man. The length of his false imprisonment was approximately one hour in the cells at the court, he was brought into court and his liberty restored. There is no suggestion of any temporary or permanent injury to him above and beyond that period of loss of liberty. There is no claim for punitive or exemplary damages.
[51] Mr. Naco does argue that his damages should be higher than normal on the basis that it was a judicial officer and not, for example, a police officer or ordinary member of the public who wrongfully deprived him of his liberty. I find I cannot take this factor into consideration. By damages Mr. Naco is being compensated for his loss of liberty and breach of his constitutional rights and not specifically for the person who brought that about. Further, I did find at paragraph 42 above that “that deprivation might have been lawful had it been done by someone who had a power of arrest on the reasonable suspicion that Mr. Naco had committed an offence for which he could be arrested”.
[52] To some extent the plaintiff has been the author of his own misfortune. That does not mean there has been no breach of his constitutional right or that he should not be compensated therefor. However, his case is not in the realms where higher damages have been awarded, e.g. the shackling of a child by the police.
[53] In all the circumstances I find that the correct figure for damages in this case is the sum of $1,000.00. I find that is a reasonable sum for the first hour of loss of liberty. Had there been continuing hours of false imprisonment or breach of rights the amount per hour would have been less. This recognises and marks the relative greater importance of the initial loss of liberty.
[54] In arriving at this figure and these principles I have respectfully adopted the reasoning and quantum set by Mrs. Justice Pulea in Civil Action HBC0307 of 2004 Eseroma Ledua v. Fiji Police Force and Others. She examines the principles at pages 6 to 12 under the headings (i) False Imprisonment (ii) Quantum of Damages and (iii) The submissions and Thompson Guidelines. In the case of a businessman wrongly imprisoned for twenty-four hours she set a figure of $1,000.00 for the first hour. This case, in this respect, is the same.
[55] Mr. Naco has acted as a litigant in person throughout. It is clear that he does know a considerable amount about the legal process. He is not entitled to costs as though he was a professional lawyer acting for a client. However, he is entitled to his outgoings and disbursements.
I assess these at $1,250.00. I order that the damages and costs are paid by 3.00 p.m. on the 21st of November, 2005.
[R.J. Coventry]
JUDGE
Temo has no power to hand Puamau to the Fiji Police. His flimsy grasp of constitutional and judicial law reinforces his unworthiness to be new CJ.
RESIGN or RECUSE from the Bainimarama-Qiliho case in Fiji High Court.
*Unlike the Suva lawyer Richard Naidu who ridiculed one of your former fellow Judge, we would like to point out to you that the case you relied on is NOT Brown v Dunn. It is, your Lordship, Browne v Dunn.
*Sorry, for pointing out the Goof! I am sure like Naidu, whoever ridicules your Brown and Browne goof, will get Absolute Discharge without Conviction on A-G Siromi Turaga's intervention.
Salesi Temo's repeated error regarding Browne v Dunn in his judgment
*In many recent judgments, overseas courts have argued that Browne v Dunn should not be overzealously applied.
*In the situation that the rule is broken, the question turns to the appropriate remedy. R v McNeill, [2000] OJ No 1357, 144 CCC (3d) 551 provides two potential remedies. The primary remedy, and the one to be considered first, is to recall the witness. The aggrieved party can then either accept or decline the recall of their witness.
*Should they decline it, the secondary option need not be considered. In situations where it is impossible or highly impracticable to recall the witness, the secondary remedy is for the trial judge to consider giving the jury (if there is one) special instructions. If special instructions are warranted, the jury should be told that in assessing the weight to be given to the uncontradicted evidence, they may properly take into account the fact that the opposing witness was not questioned about it. *The jury should also be told that they may take this into account in assessing the credibility of the opposing witness.
*As for Seini Puamau's judgment, she is protected from your wrath.
PUAMAU IS PROTECTED FROM YOUR FLAWED THREAT TO HAND HER OVER TO THE FIJI POLICE FOR CONTEMPT OF COURT
Section 113 (5) of the Constitution of Fiji
SALESI TEMO SHOULD BE SUSPENDED AND FACE JUDICIAL TRIBUNAL FOR THREATENING TO DEFY S113(5) OF CONSTITUTION
Fijileaks: We do not doubt that the acting Chief Justice, Salesi Temo, will convict Frank Bainimarama and Sitiveni Qiliho. He will either send both to prison or pass long suspended sentences—long enough to bar Bainimarama from standing for election. Qiliho's sentence will lead to his dismissal as Police Commissioner. |
*The Mahmood Khan report alleged that the Director Assurance and Compliance at USP, DORIS DULARI TRAILL, was given an inducement allowance of 50% by VCP Pal Ahluwalia.
*This was given contrary to Ahluwalia's own stance against issuing of inducement allowances.
*Traill was on an annual salary of $124,386, and then given an inducement allowance of $63,693, taking her total salary to $188,079.
*According to the 'Mahmood Khan Report' she got the allowance while compiling a report alleging corruption on the part of others in receipt of much smaller allowance.
*The Report also alleged that Traill was given a one year extension by Ahluwalia at the end of her contract from May 28, 2020 to May 26, 2021 on the same salary of $188,079 which included the 50% inducement allowance.
REPORTS on the questionable payment of bonuses at the University of the South Pacific only came to light after the institution established a whistle blower policy in 2019.
This, according to Dulari Doris Traill, the State’s first witness in former prime minister Voreqe Bainimarama and suspended police commissioner Sitiveni Qiliho’s trial which began yesterday. They appeared before Suva magistrate Seini Puamau.
Mrs Traill is the director assurance and compliance at USP and started employment at USP in May, 2017. She said her job involved keeping an oversight on risk management, providing oversights in USP’s control environment and providing visibility to the vice chancellor in terms of the environment that the University was operating in. She said the organisational culture of USP encouraged efficient use of resources and operational effectiveness.
When she joined USP she did a quick review of its risk management and framework environment, to help ascertain how the university was managing its risks in terms of university procedures. She had to put in place policies on the reporting of fraud related matters but found out the university did not have a whistle blower policy or a policy on the reporting of fraud related matters. Mrs Traill said she had worked with the human resources officer and senior leaders to get this policy in place, and managed to get the two documents endorsed towards the end of 2017 at the USP Council’s meeting.
Mrs Traill said the documents had to be endorsed at the University of the South Pacific council meeting.
Acting Director of Public Prosecutions, David Toganivalu then asked Mrs Traill on why there was a need to have such a policy at the university. She said this was to ensure that the university has a good organisational culture and there’s an environment that allowed staff members and stakeholders to report matters freely without being victimised.
First report lodged
After the policy was set up, USP conducted a policy awareness with senior executive management. She said sessions were also conducted with staff members of both the local and regional campuses. Mrs Traill said it was during these sessions that a number of staff came forward and “had issues but were scared because of fear of victimisation”. She told the court that in 2018 they received a report of a bonus payment that was facilitated and paid out in a very questionable manner.
She said the report was raised to her by a human resources officer in a strange manner. Mrs Traill said when her team started investigating the report she was told by a senior management staff and former deputy vice-chancellor, Derrick Armstrong, to stop investigating the matter. She said she was instead instructed to investigate the officers who had reported the matter “for a breach of confidentiality between the HR officer that had reported and officer who had processed the payment”.
Summoned
She decided to continue with her investigation and was summoned to the former vice-chancellor Professor Rajesh Chandra’s office. Mrs Traill said the meeting lasted 19 minutes and the former vice-chancellor was adamant that the officer had to go home. The VC was asked to allow the investigation to take course, and let the evidence speak for itself. She said she could not accept what the former vice-chancellor told her because her role as director assurance and compliance meant she had to protect the integrity of the university.
Mrs Traill said her views were made known to the former vice-chancellor. Magistrate Puamau raised with the acting DPP that all the statements made by the witness were background information and needed the prosecutor to take the court straight into the allegations. Mr Toganivalu then told the court of a report compiled by present day vice-chancellor, Prof Pal Ahluwalia, on March 6, 2019. Mrs Traill said the report compiled by Prof Ahluwalia was compiled from reports received from frustrated staff members with issues not being dealt with at upper level.
Investigation challenges
When asked to explain what she meant by upper level, she said the investigation report by Prof Ahluwalia included the bonus payouts, promotions and calling out certain individuals receiving remuneration packages outside of USP’s established policies. The report by Prof Ahluwalia also detailed how individuals received money they were not entitled to.
These included payments to the former chairman of the USP council Winston Thompson, former vice-chancellor Rajesh Chandra, Anjeela Jokhan, former payroll manager Shobna Kiran and other senior executive members. Mrs Traill also informed the court that Mr Thompson had authorised a payout to the former vice-chancellor for a professional development payout leave.
She said the leave approved to Mr Chandra was to allow him to write a book about his experience at USP, “which was not part of the policy”. She said the professional development policy was only supposed to be used for upskilling managers to better leaders for USP. Mrs Traill said a bonus to Ms Kiran, the payroll officer, had been endorsed by Mr Thompson and was signed by the staff review committee. Mrs Traill said Prof Ahluwalia’s report was tabled on March, 6, 2019 at the USP’s executive committee council meeting where she was called to give an update on the whistleblower cases.
She said she was not aware that Prof Ahluwalia was also submitting a report on alleged mismanagement. She said members asked whether the cases were reported to police and she informed them the work she did was around compliance breaches and policies. She said later that day, the executive council committee advised her to continue her investigation.
Her team uplifted all the documents, including the report by Professor Ahluwalia, and in April 2019, she made a decision to report the matter to the Fiji Independent Commission Against Corruption. However, she alleged there was a lot of interference by Mr Thompson.
She said she could not access documents Mr Thompson allegedly had some control over it. The court was told FICAC also started conducting their investigation and started uplifting documents. She said the FICAC officers were ready to go into caution interview when something changed in their activities. Mrs Traill said the officers then informed them that they were instructed to stop the investigations and to investigate a complaint on the leak of the report by Professor Ahluwalia. Source: The Fiji Times,
This, according to Dulari Doris Traill, the State’s first witness in former prime minister Voreqe Bainimarama and suspended police commissioner Sitiveni Qiliho’s trial which began yesterday. They appeared before Suva magistrate Seini Puamau.
Mrs Traill is the director assurance and compliance at USP and started employment at USP in May, 2017. She said her job involved keeping an oversight on risk management, providing oversights in USP’s control environment and providing visibility to the vice chancellor in terms of the environment that the University was operating in. She said the organisational culture of USP encouraged efficient use of resources and operational effectiveness.
When she joined USP she did a quick review of its risk management and framework environment, to help ascertain how the university was managing its risks in terms of university procedures. She had to put in place policies on the reporting of fraud related matters but found out the university did not have a whistle blower policy or a policy on the reporting of fraud related matters. Mrs Traill said she had worked with the human resources officer and senior leaders to get this policy in place, and managed to get the two documents endorsed towards the end of 2017 at the USP Council’s meeting.
Mrs Traill said the documents had to be endorsed at the University of the South Pacific council meeting.
Acting Director of Public Prosecutions, David Toganivalu then asked Mrs Traill on why there was a need to have such a policy at the university. She said this was to ensure that the university has a good organisational culture and there’s an environment that allowed staff members and stakeholders to report matters freely without being victimised.
First report lodged
After the policy was set up, USP conducted a policy awareness with senior executive management. She said sessions were also conducted with staff members of both the local and regional campuses. Mrs Traill said it was during these sessions that a number of staff came forward and “had issues but were scared because of fear of victimisation”. She told the court that in 2018 they received a report of a bonus payment that was facilitated and paid out in a very questionable manner.
She said the report was raised to her by a human resources officer in a strange manner. Mrs Traill said when her team started investigating the report she was told by a senior management staff and former deputy vice-chancellor, Derrick Armstrong, to stop investigating the matter. She said she was instead instructed to investigate the officers who had reported the matter “for a breach of confidentiality between the HR officer that had reported and officer who had processed the payment”.
Summoned
She decided to continue with her investigation and was summoned to the former vice-chancellor Professor Rajesh Chandra’s office. Mrs Traill said the meeting lasted 19 minutes and the former vice-chancellor was adamant that the officer had to go home. The VC was asked to allow the investigation to take course, and let the evidence speak for itself. She said she could not accept what the former vice-chancellor told her because her role as director assurance and compliance meant she had to protect the integrity of the university.
Mrs Traill said her views were made known to the former vice-chancellor. Magistrate Puamau raised with the acting DPP that all the statements made by the witness were background information and needed the prosecutor to take the court straight into the allegations. Mr Toganivalu then told the court of a report compiled by present day vice-chancellor, Prof Pal Ahluwalia, on March 6, 2019. Mrs Traill said the report compiled by Prof Ahluwalia was compiled from reports received from frustrated staff members with issues not being dealt with at upper level.
Investigation challenges
When asked to explain what she meant by upper level, she said the investigation report by Prof Ahluwalia included the bonus payouts, promotions and calling out certain individuals receiving remuneration packages outside of USP’s established policies. The report by Prof Ahluwalia also detailed how individuals received money they were not entitled to.
These included payments to the former chairman of the USP council Winston Thompson, former vice-chancellor Rajesh Chandra, Anjeela Jokhan, former payroll manager Shobna Kiran and other senior executive members. Mrs Traill also informed the court that Mr Thompson had authorised a payout to the former vice-chancellor for a professional development payout leave.
She said the leave approved to Mr Chandra was to allow him to write a book about his experience at USP, “which was not part of the policy”. She said the professional development policy was only supposed to be used for upskilling managers to better leaders for USP. Mrs Traill said a bonus to Ms Kiran, the payroll officer, had been endorsed by Mr Thompson and was signed by the staff review committee. Mrs Traill said Prof Ahluwalia’s report was tabled on March, 6, 2019 at the USP’s executive committee council meeting where she was called to give an update on the whistleblower cases.
She said she was not aware that Prof Ahluwalia was also submitting a report on alleged mismanagement. She said members asked whether the cases were reported to police and she informed them the work she did was around compliance breaches and policies. She said later that day, the executive council committee advised her to continue her investigation.
Her team uplifted all the documents, including the report by Professor Ahluwalia, and in April 2019, she made a decision to report the matter to the Fiji Independent Commission Against Corruption. However, she alleged there was a lot of interference by Mr Thompson.
She said she could not access documents Mr Thompson allegedly had some control over it. The court was told FICAC also started conducting their investigation and started uplifting documents. She said the FICAC officers were ready to go into caution interview when something changed in their activities. Mrs Traill said the officers then informed them that they were instructed to stop the investigations and to investigate a complaint on the leak of the report by Professor Ahluwalia. Source: The Fiji Times,
The National Security Council minutes of the meeting, re USP agenda
REDACTED: What followed after Aiyaz Khiyum's intervention?
From Fijileaks Archives
MAHMOOD KHAN REPORT: The 33 ALLEGATIONS nephew KHAIYUM wants investigated against Ahluwalia before releasing $37million to USP (fijileaks.com)
TURNING THE TABLE ON THE 'TURBANATOR': Mahmood Khan, Chair of Audit and Risk Committee claims Professor Pal Ahluwalia's Report was drafted by Professor Arvind Patel and yet Ahluwalia regarded as 'Author' (fijileaks.com)
*On 20 April 2009, eight magistrates and Chief Magistrate (Ajmal Khan) were sworn in by the then President Ratu Josefa Iloilo following the abrogation of the 1997 Constitution of Fiji.
*Salesi Temo, John Rabuku and Anare Tuilevuka were among the magistrates sworn-in to prop up the illegal Bainimarama dictatorship.
*On 11 June 2009 Temo was sworn-in as acting puisne judge, alongside a former arbitrator William Calachini who became a puisne judge
*Now, he is acting Chief Justice and we have no doubt he is acting the judicial tough guy in the hope of being appointed Chief Justice.
*His then side-kick magistrate John Rabuku is playing the same game.
DIAL A 'KAIVITI' FOR A LEGAL JOB. It is obvious even to 'Blind Freddy' that most of the judicial appointments are being made on the basis of 'kila vata' connections. Basically, 'hei, where are you, come, take up a job in the judiciary'. We are witnessing the total i-taukeinization of the judiciary, just like shortly after the 1987 Rabuka coups.
*The next Chief Justice must be DANIEL GOUNDAR and not TEMO.
TWO of Sitiveni Rabuka's 1987 RACIST enforcers are back as JUDGES.
It was the NFP, and its leader and MPs, who clothed them in the sulu of immunity for the rape, murder, torture and beatings of Indo-Fijians.
*Hiding behind IMMUNITY that Rabuka extracted at the point of the gun, we saw Indo-Fijian academics at USP abducted and beaten up; one even whacked for hours in a military cell for writing a negative review of the Coupist's book, No Other Way, in which he had justified his two racially motivated coups. |
*Temo MUST recuse himself from the case on the grounds of the perception of BIAS, the 'fair-minded and informed observer' test. Since he directed that the original acquittals be over-turned, and a guilty verdict entered against Bainimarama and Qiliho, Temo must recuse himself from hearing the case.
*In 2001, we had forced Temo to quit hearing the case against one of George Speight's co-conspirators, who was related to the then chief magistrate Salesi Temo.
*Further, on 26 July 2001, Fiji's High Court had overturned magistrate Temo's decision that would have allowed George Speight to contest a seat in the country's general election in August 2001.
* Justice Peter Surman had ruled that Temo did not have the jurisdiction to allow Speight and fellow coup plotter Ratu Timoci Silatolu (released lately from prison) to lodge nomination forms as political candidates for the 2001 general election.
* In 2003, Justice Nazhat Shameem had ordered that Speight be sent back before magistrate Temo to be re-tried for breaches of the Foreign Exchange Act. Temo had discharged Speight without conviction in 2002 after Speight had pleaded guilty.
There were widespread allegations in 2000 that Salesi Temo, with his pro-George Speight rulings, was a Speight sympathizer, a charge he reportedly dismissed.
*On 20 September 2000, the Fiji High Court had intervened and had ordered magistrate Temo not to rule on treason charges against coup leader Speight and 11 other detainees, preventing their release. |
“Magistrates' courts in Fiji are hereby directed to refrain from making any further orders relating to the purported immunity of persons from prosecution in connection with the immunity decree,” Surman stated.
*Speight's lawyers had originally sought a ruling from the High Court as to whether the decree applied to the charges of treason but Temo had declared that he had the power to make the decision.
*The government could appeal if it disagreed, he stated, indicating that he would free Speight.
* Speight's case had to wait for a High Court ruling on the immunity decree. He and his jailed associates were challenging their detention on the grounds that the military granted them an amnesty under the July 9 Maunikau Accord signed between Speight and armed forces chief Frank Bainimarama, which ended the 56-day parliamentary hostage crisis.
*If Temo had ruled that the defendants were covered by the immunity decree they would have faced only minor charges and could have been freed on bail that day.
*Speight and his co-defendants were so confident of their release from Nukulau prison island that they had come to the court with their suitcases.
* Temo had also dismissed a case against a Speight supporter charged with shooting two soldiers and a British photographer in a melee, on grounds which Speight was also seeking to have applied: an amnesty agreed with the RFMF.
*Our Founding Editor-in-Chief who had written on the validity of the Muanikau Accord that was later used as a template by the DPP against Speight and his group before the Fiji High Court had (and continues to) suppress the identity of the Fiji High Court judge below:
Fijileaks: As we had argued previously, we had felt that what was done by the new Attorney-General Siromi Turaga was wrong. If Richard Naidu was unhappy with the Fiji High Court judgment that found him guilty of scandilizing the court, he should have appealed the same.
*That was his lawful right. We were surprised that the application was dismissed but then conviction which had already been entered by the High Court was then set aside.
*In our opinion, it is not proper for one new Office Holder (A-G Turaga) to show weakness of character by criticising his predecessor and then deposing that he was in Richard Naidu’s camp, and he would not have filed the contempt proceedings or that the institution of the proceedings was wrongful.
*Contempt is a matter for the Court. If you bring it to the Court’s attention, it is then up to the Court to deal with it.
Here, the Court had already dealt with it.
People’s Alliance Leader, Sitiveni Rabuka and National Federation Party Leader Professor Biman Prasad says they are undaunted by the result of prominent lawyer, Richard Naidu’s case outcome after being found guilty for contempt scandalising the court.
Speaking outside the courthouse after the ruling this afternoon, Rabuka says in a way this is a relief as they have been waiting, anticipating, thinking this or that and just have to respect the decision of the court.
The People’s Alliance Leader says even though they will be without Naidu as a candidate, the People’s Alliance and NFP will continue to campaign for the general elections.
Rabuka adds that they promise to canvas support within the law and make sure they tell their supporters and candidates what can happen to a prominent lawyer and a prominent citizen, and to be careful.
Meanwhile Professor Prasad says that Naidu is a man of integrity.
Professor Prasad adds that he was looking forward to having Naidu in the NFP team however he knows that Naidu is with them.
The NFP Leader says they are focused on winning the general election and forming government. Fijivillage
Speaking outside the courthouse after the ruling this afternoon, Rabuka says in a way this is a relief as they have been waiting, anticipating, thinking this or that and just have to respect the decision of the court.
The People’s Alliance Leader says even though they will be without Naidu as a candidate, the People’s Alliance and NFP will continue to campaign for the general elections.
Rabuka adds that they promise to canvas support within the law and make sure they tell their supporters and candidates what can happen to a prominent lawyer and a prominent citizen, and to be careful.
Meanwhile Professor Prasad says that Naidu is a man of integrity.
Professor Prasad adds that he was looking forward to having Naidu in the NFP team however he knows that Naidu is with them.
The NFP Leader says they are focused on winning the general election and forming government. Fijivillage
SOAP Opera continues outside Puamau's Magistrates Court
BEFORE THE 2022 ELECTION: Shailendra Raju to Jone Kalouniwai.
We understand he is back in Fiji, lapping up to Coalition government
JUDGMENT
Background
[1] The respondent is a legal practitioner and a partner in the law firm, Munro Leys. On 22 November 2022, Nanayakkara J found him guilty of contempt scandalizing the court in proceedings brought under Order 52 of the High Court Rules by the former Attorney-General of Fiji. After pronouncing the judgment, Nanayakkara J adjourned the case for mitigation and sentence to a later date.
[2] While the mitigation and sentence were pending, a new government came into power and a new Attorney-General was appointed. After the change of government, Nanayakkara J resigned from his post as a judge and left the jurisdiction without concluding the proceedings against the respondent.
[3] The case was assigned to me. The parties had no objection to me taking over the case after the resignation of the trial judge.
[4] The new Attorney-General, Mr Siromi Turaga has taken a different position regarding the proceedings against the respondent which he has expressed in an affidavit filed in support of Summons to dismiss the proceedings. He states:
[5] The orders sought by the Attorney-General pursuant to Order 32 of the High Court Rules and the inherent jurisdiction of the Court are as follows:
[6] The High Court Rules provide various avenues for litigants to set aside an order or a judgment of the court, depending on the circumstances of the case and the nature of the order or judgment, that is, whether it was obtained ex parte or in default or whether the order or judgment is interim or final.
[7] On the question of jurisdiction of this Court to set aside the judgment of 22 November 2022, the power granted by Order 32 of the High Court Rules is not applicable. Order 32 concerns applications and proceedings in Chambers and Rule 6 of Order 32 states that “the Court may set aside an order made ex parte’’.
[8] The judgment of 22 November 2022 was not obtained ex parte. The judgment was pronounced in open court after a hearing in which the respondent was present and represented by counsel. Order 32, r 6 does not give the court power to set aside a judgment pronounced after a trial.
[9] Counsel for the respondent submits that while the judgment of 22 November 2022 purported to set out a number of orders, none of those orders were drawn up and entered in accordance with Order 42, r 6. Counsel submits that those orders can be varied, set aside or withdrawn if they have not been drawn and entered in accordance with Order 42, r 6 of the High Court Rules.
[10] Order 42, r 6 of the High Court Rules states:
(1) Every judgment given in a cause or matter and every order required to be drawn up shall be settled by or under the direction of the Registrar before being entered or drawn up.
(2) The party seeking to enter a judgment or to have an order drawn up may and shall if so required by the Registrar prepare a draft of the judgment or order and present the draft to the Registrar.
(3) If the party in whose favour a judgment is given or an order is made does not prepare it, have it settled and enter it within 21 days after it is given or made any other party affected by the judgment or order may prepare it, have it settled and entered.
(4) Every judgment when entered shall be endorsed with the date of entry.
[11] Order 42 r 6 of the High Court Rules does not expressly provide for any power to set aside a judgment that had not been drawn up and entered. The entry of a judgment is a purely ministerial act with which the judge is not required to be concerned at all (Re Harrison’s Settlement [1955] Ch 260, 274).
[12] Nevertheless, it is well settled that until an order made by a judge has been perfected, by being passed and entered, there is no final order, and the court may, at any time until the order is so perfected, vary or alter the order which the court intended to make (In re Suffield & Watt; Ex parte Brown (I) [1888] UKLawRpKQB 43; 20 Q.B.D 693). Such power is inherent in the court (Millersted v Grosvenor House (Park Lane) Ltd [1937] KB 717, 725). The power is not appellate in its nature, but exists because the jurisdiction which the parties invoked is still continuing. If the order is unambiguous and the intention of the judge is clearly manifested in the order, the power must be exercised judicially and not capriciously (Re Harrison’s Settlement [1955] Ch 260).
[13] In Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302, 310, 317, 322 the High Court of Australia while recognizing the existence of a court’s inherent jurisdiction to re-open a judgment which has not been entered, held that the power is to be exercised “with great caution” in view of the public interest in the finality of legal proceedings. Such power is available not only to perfect an imperfect judgment but to re-open an imperfect judgment that had been drawn and entered but in the latter the scope is much more restricted (Giedo Van Der Garde BV v Sauber Motorsport AG (No. 2) [2015] VSC 109).
[14] The circumstances in which a judgment may be re-open may vary from case to case. The power may be exercised where, through no fault on the applicant’s part, the applicant has not been heard on a matter decided by the court (Autodesk, per Gaudron J). The jurisdiction also extends to cases where a court has good reason to consider it has proceeded on a misapprehension as to the facts or the law such as a failure to recognize that a line of authority relied upon in the determination had been overruled or a mistaken assumption that certain evidence had not been given at an earlier hearing (Autodesk, per Mason CJ).
Finding of Guilt of Contempt
[15] In the present case, the court made a finding that the respondent is guilty of contempt scandalizing the court in proceedings initiated by the former Attorney-General (the applicant) under Order 52 of the High Court Rules.
[16] The hearing proceeded after the applicant obtained leave from the Court and then filed an application for an order of committal. The respondent was present in the hearing and participated through counsel. Before the hearing he made a number of interlocutory applications but the trial judge rejected those applications. He then sought leave to appeal and leave had been granted by the Court of Appeal in Civil Appeal No ABU0070 & ABU0071 of 2022.
[17] While the appeal against the interlocutory decisions was pending in the Court of Appeal, the trial judge proceeded to make a determination whether the respondent was guilty of contempt scandalizing the court. On 22 November 2022, the trial judge found the respondent guilty in a written judgment pronounced in open court and in the presence of the respondent.
[18] But the proceedings did not conclude with the determination of the respondent’s guilt. The proceedings are continuing as the court is yet to decide on a punishment for the respondent. No order of committal has been pronounced by the court yet.
[19] The Attorney-General plays an important function as the guardian of public interest in contempt proceedings which allege conduct scandalizing the court.
[20] The position of the Attorney-General has shifted. The present Attorney-General is not seeking an order of committal against the respondent. He does not support the finding that the respondent is guilty of contempt scandalizing the court. He says that there is no contempt and that his predecessor should not have initiated the contempt proceedings in the first place. It is not being suggested that the present Attorney-General is acting unfairly as the representative of public interest in consenting to an order setting aside the judgment of 22 November 2022.
[21] There is a line of authority that the court has jurisdiction to set aside a regular judgment if the parties to the judgment consent provided the rights of third parties are not affected by the order sought (Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) ACTR 45, Giedo Van Der Garde BV v Sauber Motorsport AG (No. 2) [2015] VSC 109).
[22] Contempt scandalizing the court is quasi-criminal in nature (Li Shengwu v Attorney General [2019] SGCA 20). When a charge of contempt scandalizing the court is made, the applicant carries the burden to establish the defendant’s guilt to the criminal standard of proof beyond a reasonable doubt, and once guilt is established, the court has to determine an appropriate punishment which may include criminal sanctions such as a fine or an imprisonment (In re Parmanandam [1972] FJSC 3; No 90 of 1972 (29 May 1972), State v Nicholas, ex parte Attorney General [2013] FJHC 29; HBC364.2011 (8 February 2013), Chaudhry, Re [2019] FJHC 306; HBC313.2018 (4 April 2019)).
[23] The judgment of 22 November 2022 determined the respondent’s guilt. The judgment did not result from settlement or consent of the parties. The judgment is a result of judicial determination made after a hearing. The finding of guilt is a judicial determination not subject of consent of the parties. The judgment binds the parties. The correct forum to set aside a binding judgment that has reached finality after judicial determination of guilt is the appellate court and not the trial court. This Court lacks power to intervene to set aside the judgment of 22 November 2022 either under the High Court Rules or the inherent jurisdiction even when the parties consent.
Determination of Sentence
[24] The only matter remaining for judicial determination is the question of punishment or sentence. Sentencing is a judicial function. Consent of the parties are not required for the courts to perform this judicial function. Sentencing can take place even when the judge who made the determination of guilt is no longer available. What is important is that the contemnor is heard or accorded an opportunity to mitigate the offence before any sentence is passed.
[25] In this case, the Attorney-General’s position is that the respondent should not be punished because he is not morally culpable. If this concession is made before the Court of Appeal in the event of an appeal against the judgment of 22 November 2022, then the prospect of the appeal succeeding is high. The prejudice to the respondent may be irreparable if I proceed to sentence him knowing the Attorney-General’s position has shifted and is not in support of the finding of guilt.
[26] The power to punish contempt of court scandalizing the court arises under the common law. Whether or not to punish a contemnor is a matter of discretion for the court.
[27] The nature of the charge against the respondent arose from a Facebook post in which he allegedly posted a portion of a judgment of the High Court containing a spelling mistake with a comment. The post attracted some humorous or negative comments from the public. The trial judge concluded that the respondent had ridiculed the judiciary and was guilty of the offence of contempt scandalizing the court. The position of the present Attorney-General casts doubt on that finding now.
[28] There is no question that the respondent is of impeccable character and any conviction will have a disproportionate impact on his economic or social well-being and on his employment as a legal practitioner of good standing. It is not necessary for me to call upon the respondent to present a mitigation.
[29] After having regard to all the circumstances of the case, I have decided not to record a conviction and dismiss the charge of contempt scandalizing the court against the respondent. The power to make an order to dismiss the charge without recording a conviction is expressly provided by section 15 (1) (j) of the Sentencing and Penalties Act. The order does not affect the respondent’s right of appeal to the Court of Appeal in any manner whatsoever, if he decides to appeal (s 16 (3) (b) of the Sentencing and Penalties Act).
[30] Orders
The orders of the Court are:
(i) Summons to set aside the judgment of 22 November 2022 by consent is dismissed for want of jurisdiction.
(ii) No Conviction is recorded against the respondent.
(iii) The charge of contempt scandalizing the court against the respondent is dismissed.
(iv) Parties to bear their own costs.
.............................................................
Hon. Mr Justice Daniel Goundar
Background
[1] The respondent is a legal practitioner and a partner in the law firm, Munro Leys. On 22 November 2022, Nanayakkara J found him guilty of contempt scandalizing the court in proceedings brought under Order 52 of the High Court Rules by the former Attorney-General of Fiji. After pronouncing the judgment, Nanayakkara J adjourned the case for mitigation and sentence to a later date.
[2] While the mitigation and sentence were pending, a new government came into power and a new Attorney-General was appointed. After the change of government, Nanayakkara J resigned from his post as a judge and left the jurisdiction without concluding the proceedings against the respondent.
[3] The case was assigned to me. The parties had no objection to me taking over the case after the resignation of the trial judge.
[4] The new Attorney-General, Mr Siromi Turaga has taken a different position regarding the proceedings against the respondent which he has expressed in an affidavit filed in support of Summons to dismiss the proceedings. He states:
- I am of the view that these proceedings should never have been instituted against the Respondent in the first place. As a result, I have conveyed to the Respondent that I am of the view that the Decision of 22 November 2022 ought to be set aside and the proceedings dismissed. For his part, the Respondent has confirmed to me that he will not seek to recover any of the costs he has incurred in defending the proceedings if this Honourable Court makes orders setting aside the Decision and dismissing the proceedings.
- Accordingly, the parties have agreed to compromise the proceedings by seeking that this Honourable Court make, by consent of the parties, the orders sought in the Summons filed herein.
[5] The orders sought by the Attorney-General pursuant to Order 32 of the High Court Rules and the inherent jurisdiction of the Court are as follows:
- That the reasons for the decisions entitled “Judgment” delivered by Honourable Justice Judge Nanayakkara on 22nd November 2022 be wholly set aside.
- That the proceedings brought by Notice of Motion filed on 28 June 2022 be dismissed.
- That each party bear its own costs of the proceedings.
[6] The High Court Rules provide various avenues for litigants to set aside an order or a judgment of the court, depending on the circumstances of the case and the nature of the order or judgment, that is, whether it was obtained ex parte or in default or whether the order or judgment is interim or final.
[7] On the question of jurisdiction of this Court to set aside the judgment of 22 November 2022, the power granted by Order 32 of the High Court Rules is not applicable. Order 32 concerns applications and proceedings in Chambers and Rule 6 of Order 32 states that “the Court may set aside an order made ex parte’’.
[8] The judgment of 22 November 2022 was not obtained ex parte. The judgment was pronounced in open court after a hearing in which the respondent was present and represented by counsel. Order 32, r 6 does not give the court power to set aside a judgment pronounced after a trial.
[9] Counsel for the respondent submits that while the judgment of 22 November 2022 purported to set out a number of orders, none of those orders were drawn up and entered in accordance with Order 42, r 6. Counsel submits that those orders can be varied, set aside or withdrawn if they have not been drawn and entered in accordance with Order 42, r 6 of the High Court Rules.
[10] Order 42, r 6 of the High Court Rules states:
(1) Every judgment given in a cause or matter and every order required to be drawn up shall be settled by or under the direction of the Registrar before being entered or drawn up.
(2) The party seeking to enter a judgment or to have an order drawn up may and shall if so required by the Registrar prepare a draft of the judgment or order and present the draft to the Registrar.
(3) If the party in whose favour a judgment is given or an order is made does not prepare it, have it settled and enter it within 21 days after it is given or made any other party affected by the judgment or order may prepare it, have it settled and entered.
(4) Every judgment when entered shall be endorsed with the date of entry.
[11] Order 42 r 6 of the High Court Rules does not expressly provide for any power to set aside a judgment that had not been drawn up and entered. The entry of a judgment is a purely ministerial act with which the judge is not required to be concerned at all (Re Harrison’s Settlement [1955] Ch 260, 274).
[12] Nevertheless, it is well settled that until an order made by a judge has been perfected, by being passed and entered, there is no final order, and the court may, at any time until the order is so perfected, vary or alter the order which the court intended to make (In re Suffield & Watt; Ex parte Brown (I) [1888] UKLawRpKQB 43; 20 Q.B.D 693). Such power is inherent in the court (Millersted v Grosvenor House (Park Lane) Ltd [1937] KB 717, 725). The power is not appellate in its nature, but exists because the jurisdiction which the parties invoked is still continuing. If the order is unambiguous and the intention of the judge is clearly manifested in the order, the power must be exercised judicially and not capriciously (Re Harrison’s Settlement [1955] Ch 260).
[13] In Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302, 310, 317, 322 the High Court of Australia while recognizing the existence of a court’s inherent jurisdiction to re-open a judgment which has not been entered, held that the power is to be exercised “with great caution” in view of the public interest in the finality of legal proceedings. Such power is available not only to perfect an imperfect judgment but to re-open an imperfect judgment that had been drawn and entered but in the latter the scope is much more restricted (Giedo Van Der Garde BV v Sauber Motorsport AG (No. 2) [2015] VSC 109).
[14] The circumstances in which a judgment may be re-open may vary from case to case. The power may be exercised where, through no fault on the applicant’s part, the applicant has not been heard on a matter decided by the court (Autodesk, per Gaudron J). The jurisdiction also extends to cases where a court has good reason to consider it has proceeded on a misapprehension as to the facts or the law such as a failure to recognize that a line of authority relied upon in the determination had been overruled or a mistaken assumption that certain evidence had not been given at an earlier hearing (Autodesk, per Mason CJ).
Finding of Guilt of Contempt
[15] In the present case, the court made a finding that the respondent is guilty of contempt scandalizing the court in proceedings initiated by the former Attorney-General (the applicant) under Order 52 of the High Court Rules.
[16] The hearing proceeded after the applicant obtained leave from the Court and then filed an application for an order of committal. The respondent was present in the hearing and participated through counsel. Before the hearing he made a number of interlocutory applications but the trial judge rejected those applications. He then sought leave to appeal and leave had been granted by the Court of Appeal in Civil Appeal No ABU0070 & ABU0071 of 2022.
[17] While the appeal against the interlocutory decisions was pending in the Court of Appeal, the trial judge proceeded to make a determination whether the respondent was guilty of contempt scandalizing the court. On 22 November 2022, the trial judge found the respondent guilty in a written judgment pronounced in open court and in the presence of the respondent.
[18] But the proceedings did not conclude with the determination of the respondent’s guilt. The proceedings are continuing as the court is yet to decide on a punishment for the respondent. No order of committal has been pronounced by the court yet.
[19] The Attorney-General plays an important function as the guardian of public interest in contempt proceedings which allege conduct scandalizing the court.
[20] The position of the Attorney-General has shifted. The present Attorney-General is not seeking an order of committal against the respondent. He does not support the finding that the respondent is guilty of contempt scandalizing the court. He says that there is no contempt and that his predecessor should not have initiated the contempt proceedings in the first place. It is not being suggested that the present Attorney-General is acting unfairly as the representative of public interest in consenting to an order setting aside the judgment of 22 November 2022.
[21] There is a line of authority that the court has jurisdiction to set aside a regular judgment if the parties to the judgment consent provided the rights of third parties are not affected by the order sought (Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) ACTR 45, Giedo Van Der Garde BV v Sauber Motorsport AG (No. 2) [2015] VSC 109).
[22] Contempt scandalizing the court is quasi-criminal in nature (Li Shengwu v Attorney General [2019] SGCA 20). When a charge of contempt scandalizing the court is made, the applicant carries the burden to establish the defendant’s guilt to the criminal standard of proof beyond a reasonable doubt, and once guilt is established, the court has to determine an appropriate punishment which may include criminal sanctions such as a fine or an imprisonment (In re Parmanandam [1972] FJSC 3; No 90 of 1972 (29 May 1972), State v Nicholas, ex parte Attorney General [2013] FJHC 29; HBC364.2011 (8 February 2013), Chaudhry, Re [2019] FJHC 306; HBC313.2018 (4 April 2019)).
[23] The judgment of 22 November 2022 determined the respondent’s guilt. The judgment did not result from settlement or consent of the parties. The judgment is a result of judicial determination made after a hearing. The finding of guilt is a judicial determination not subject of consent of the parties. The judgment binds the parties. The correct forum to set aside a binding judgment that has reached finality after judicial determination of guilt is the appellate court and not the trial court. This Court lacks power to intervene to set aside the judgment of 22 November 2022 either under the High Court Rules or the inherent jurisdiction even when the parties consent.
Determination of Sentence
[24] The only matter remaining for judicial determination is the question of punishment or sentence. Sentencing is a judicial function. Consent of the parties are not required for the courts to perform this judicial function. Sentencing can take place even when the judge who made the determination of guilt is no longer available. What is important is that the contemnor is heard or accorded an opportunity to mitigate the offence before any sentence is passed.
[25] In this case, the Attorney-General’s position is that the respondent should not be punished because he is not morally culpable. If this concession is made before the Court of Appeal in the event of an appeal against the judgment of 22 November 2022, then the prospect of the appeal succeeding is high. The prejudice to the respondent may be irreparable if I proceed to sentence him knowing the Attorney-General’s position has shifted and is not in support of the finding of guilt.
[26] The power to punish contempt of court scandalizing the court arises under the common law. Whether or not to punish a contemnor is a matter of discretion for the court.
[27] The nature of the charge against the respondent arose from a Facebook post in which he allegedly posted a portion of a judgment of the High Court containing a spelling mistake with a comment. The post attracted some humorous or negative comments from the public. The trial judge concluded that the respondent had ridiculed the judiciary and was guilty of the offence of contempt scandalizing the court. The position of the present Attorney-General casts doubt on that finding now.
[28] There is no question that the respondent is of impeccable character and any conviction will have a disproportionate impact on his economic or social well-being and on his employment as a legal practitioner of good standing. It is not necessary for me to call upon the respondent to present a mitigation.
[29] After having regard to all the circumstances of the case, I have decided not to record a conviction and dismiss the charge of contempt scandalizing the court against the respondent. The power to make an order to dismiss the charge without recording a conviction is expressly provided by section 15 (1) (j) of the Sentencing and Penalties Act. The order does not affect the respondent’s right of appeal to the Court of Appeal in any manner whatsoever, if he decides to appeal (s 16 (3) (b) of the Sentencing and Penalties Act).
[30] Orders
The orders of the Court are:
(i) Summons to set aside the judgment of 22 November 2022 by consent is dismissed for want of jurisdiction.
(ii) No Conviction is recorded against the respondent.
(iii) The charge of contempt scandalizing the court against the respondent is dismissed.
(iv) Parties to bear their own costs.
.............................................................
Hon. Mr Justice Daniel Goundar
editor@fijileaks.com
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