Fiji Times lawyer Jon Apted (left) and publisher Hanks Art outside the High Court in Suva yesterday.

By FONUA TALEI

CHARGE:
The Fiji Times Limited was found guilty of contempt of court in publishing an article where Oceania Football Confederation secretary, Tai Nicholas made comments about Fiji’s judiciary in the Sunday Star Times in New Zealand which was published last November and a day later was reprinted by the Fiji Times.

WHAT STATE WANTS:
The Attorney-General’s office yesterday proposed that a $500,000 fine be imposed on Fiji Times Limited and a six-month imprisonment term for its editor-in-chief Fred Wesley.
Appearing on behalf of the Attorney-General, acting Solicitor-General Sharvada Sharma submitted that given the seriousness of the contempt offence the Fiji Times should:
•         pay no less than $500,000 within a period of time deemed appropriate by the court.
•         the owners and directors should enter into a good behavior bond of $500,000 suspended for two years because the company was a repeat contempt of court offender.
Mr Sharma told the High Court in Suva that the contemptuous article was published as a result of failure on the editor and publisher’s part to adequately monitor publication. This, he said, was a result of their gross negligence and recklessness.
Judge Justice William Calanchini heard that the second respondent, former Fiji Times publisher Brian O’Flaherty, should receive a three-month custodial sentence suspended for two years. Mr Sharma also proposed a good behavior bond of $100,000.
Mr Sharma submitted that because of the seriousness of the contempt of court charge, Mr Wesley should be given a six-month custodial sentence and enter into a good behaviour bond for two years.
He said the publication was a scurrilous attack on the judiciary to the extent of saying that there was no judiciary in Fiji.

NOT GUILTY PLEA
The court heard that the Fiji Times had entered a not guilty plea. However, it was found guilty by the court.
Mr Sharma said that the Fiji Times was also convicted in 2009 for a contempt of court and fined $100,000.
However, despite the previous conviction and fine the newspaper had not comprehended the seriousness of contempt and potential consequences of such publication.
Furthermore, Mr Sharma said a subsequent publication containing a photo and its adjacent article titled ‘Oceania soccer boss issues apology’ was published impugning the idea that justice can be bought in Fiji.
Justice Calanchini heard that failure to follow the proper system of things within the media company was not a sufficient excuse to justify the publication made in regards to the subsequent publication.
Mr Sharma said the respondents should not go unpunished and that the court should impose a penalty that reflects the gravity and seriousness of the offence.
He said despite apologies to the court by Fiji Times since their contempt case in 2009 they continued to recklessly publish contemptuous articles.
The court heard that Fiji Times had the means to meet any punishment given. The imprisonment term for Mr Wesley and fine for the company would act as a deterrence to would-be contempt offenders.
He also submitted that the Fiji Times should prominently publish a front page public apology for the contemptuous article as per the court’s discretion. Mr. Sharma further proposed that the applicant should be awarded all costs by the Fiji Times on full indemnity basis.

FIJI TIMES PLEA
Fiji Times lawyer Jon Apted submitted before Justice Calanchini that Mr O’Flaherty and Mr Wesley were not on duty on the day of publication.
He said they had pleaded not guilty on instructions of lawyers and that an unsuccessful attempt was made to settle the issue with the Attorney-General’s office.
Justice Calanchini questioned Mr Apted why the respondents had entered a not guilty plea when they had made attempts to reach an amicable arrangement with the applicant. He said for the mercy of the court the respondents should have initially pleaded guilty.
Mr Apted said in his submission that even though the publication is considered by the judiciary to be insulting it was not considered to be contempt.
On behalf of the Fiji Times, Mr O’Flaherty and Mr Wesley, Mr Apted sounded an unconditional apology to the court also offering to publish a front page apology in the Fiji Times.
The court heard in submission how the error occurred, Mr Apted said the offending article was written and published by a third party on Sunday, November 6, 2011.
He said the sports editor Manoj Kumar who was on duty that day was faced with a lot of pressure after a reporter did not show up to work. He said with the assistance of a relieving reporter who found the article online, Mr Kumar submitted the article for publishing.
Mr Apted mentioned the reporter in question only read three paragraphs of the article before forwarding it to his superior.
Mr Apted told Justice Calanchini that part of the system of avoiding contempt was to read articles and refer them to Fiji Times lawyers for perusal. However, the problem arose because Mr Kumar did not read the article.
In mitigation Mr Apted highlighted in court that Fiji Times had been in existence since 1869 and this was a rare contempt of court conviction against them.

READ THE COPY
He said the Fiji Times takes media responsibility very seriously and its content speaks volume of its strong community commitment. The court heard that further training has been facilitated by their lawyers for staff of the editorial department and the need to read through copies and referring it to the lawyers has been emphasised.
He mentioned that general manager and current publisher Hank Arts has instilled a new practice whereby a list of stories with brief summary was sent to him every evening at 8 after which he liaised with the editor on which stories needed legal reviewing before being published.
In regards to the second article published on June 30 this year counsel for the respondents said no charge was laid by the Attorney-General and no evidence was called. He said there is no finding of guilt by anyone because no charge had been filed.
The court was informed that the said article was not made known at the daily afternoon editorial meeting thus Mr Wesley was not aware of the article and its accompanying photo. The article on June 30 was included for publication by the deputy sports editor who saw it as a positive development for soccer in Fiji.
The sports editor who should have reviewed the story left the responsibility to the deputy sports editor to do so. However, in the process wrong judgment was made.
Mr Apted said while error of judgment should not be accepted, it can be accepted as a mistake as mistakes happen all the time. He submitted that he had received instructions to accept the second article as an aggravating factor as they did not want to inconvenience the court or Attorney-General by further proceedings. A second apology was also made in court by Mr Apted on behalf of the respondents.
He informed the court that Mr O’Flaherty could not be present in court because he was overseas. In mitigation the court heard that Mr Wesley has had 19 years of experience in the media and has worked hard to be where he is today.
He is married with three children, was pursuing his MBA and has received numerous awards for journalism. Mr Wesley’s good character was mentioned in court.
Mr Apted highlighted that an imprisonment sentence should only be imposed in the most serious cases of contempt.

JUDGE’S QUESTION
Justice Calanchini asked if there was a written guideline on the aforementioned system. Mr Apted said there was no written copy of the system but it was a practice system which was part of the daily routine of the editorial department.
Justice Calanchini then questioned him on the reliability of a system which was passed down by word of mouth.
Mr Apted added that Mr O’Flaherty was found guilty of contempt and had faced prosecution and burden of trial. As publisher he had no direct involvement in editorial matters, he only made resources available to support the system in place.
However he was remorseful and apologised for the error even though he was no longer employed by Fiji Times at the time the second article was published.
According to counsel for Fiji Times the publication occurred because of human error. It was stated that Fiji Times accepted fault as corporate publisher.

STAFF PROBLEM
Mr Apted highlighted challenges faced by the newspaper in area of human resources saying it should be relevant factors for consideration by the court. He said like many organisations and media outlets the Fiji Times has had great difficulty in attracting suitably qualified editorial senior staff. He said the challenges went some way into how the errors occurred.
Mr Apted said penalties submitted by counsel for the applicant were excessive. He said the case was nowhere as serious as the 2009 Fiji Times contempt case and findings reveal that there was no intention in the publishing of the articles.
On the issue of an imprisonment term for Mr Wesley, Mr Apted added that it would be unjust to punish someone with imprisonment term for a mistake committed by someone else.
He said the gist of the respondent’s submission was that no system was infallible and the Fiji Times was seeking further training for its staff.
The case has been adjourned on notice for sentencing judgment to be delivered by Justice Calanchini.