Richard Naidu’s leave to appeal application and stay of proceedings were refused by the High Court on Friday.

Naidu is alleged to have scandalised and ridiculed the courts and the judiciary in a Facebook post where he made comments in relation to a judgment delivered by the High Court in Suva.

The Attorney-General Aiyaz Sayed-Khaiyum has filed the proceedings for contempt against Naidu.

The matter was called on Friday before the Civil High Court Judge Justice Jude Nanayakkara for ruling on the leave to appeal and stay of proceedings, and hearing on the second Summons for Cross-Examination.

Ruling on the Leave to Appeal and Stay of Proceedings:

The court ruled that the respondent’s applications for leave to appeal to the Fiji Court of Appeal and stay of proceedings were refused and the respondent was ordered to pay the AG’s costs of these proceedings summarily assessed in the sum of $3000 which is to be paid within seven days hereof.

The Judge said the issue was whether leave to appeal should be granted by the High Court.

He said the considerations to be applied by the High Court for leave to appeal from the interlocutory order or judgment was different from the considerations apply in the Court of Appeal when the matter comes before the Court of Appeal on a motion for leave to appeal from the interlocutory order or judgment.

The respondent contended that the issues raised in the two intended appeals were one of general importance.

The counsel for the AG took issue with this and submitted that the grounds of appeal were baseless.

The Judge rejected the respondent’s contention that the issues raised in matter of significant public importance.

He said the thrust of the respondent’s submission and the allegation was that the contempt proceedings included the application for leave was motivated only by personal vendetta.

He said this was the basis of the respondent’s submissions seeking cross-examination and setting aside ex-parte leave.

Justice Nanayakkara said most of the issues sought to debate were fundamentally one of facts which turned upon the particular facts of this case and arose between the parties and therefore, the interlocutory decisions given by this court did not affect a large section of the public.

He said they had no general importance to the public at large and besides, each and every question of law arising between the parties could not be a question of general importance.

He said that being so; there could be no justification for a grant of leave.

He also said the respondent could not demonstrate to the court that the issues involved in the intended appeals raised difficult questions of law upon which different views had been expressed by the judicial decisions from time to time which was a factor weighing heavily against a grant of leave.

The Judge said the respondent had only a right to apply for the exercise of the judicial discretion under a general provision of the High Court Rules.

Hearing on the second Summons for Cross-Examination:

Mr Apted told the court that this was the second application of Summons for Cross-Examination filed to cross-examine the AG during the substantive hearing which will be in November.

He said the respondent was seeking the AG to attend at the hearing of the Notice of Motion for cross-examination on his affidavit in support of Motion verifying facts relating to leave for committal filed on June 22.

The respondent is also seeking all further proceedings in the action to be stayed until determination of the matters set out in this application.

Mr Apted said the respondent sought leave to cross-examine the AG on his affidavit in regard to a limited number of matters arising out of the evidence he purported to give in the affidavit.

He said on September 8, the court required Naidu to enter a plea which was a process which was applied only to offences which were criminal in nature.

He said the Section 15 of the Bill of Rights in the Fijian Constitution guaranteed to every person charged with an offence a right to a fair trial before a court of law.

He said Section 14 (2) of the Fijian Constitution set out certain recognised specific rights of an accused person, including challenging evidence presented against him or her.

Mr Apted said the court must be guided by Fiji’s own Constitutional provisions and decisions from jurisdictions with the same or similar human rights provisions.

He said the application was made in Naidu’s exercise of his rights under the Constitution.

The Judge questioned Mr Apted whether he could compel the witness for him to subject himself for cross-examination.

Mr Apted said yes and added that the application was regarding the applicant’s true and sole purpose in bringing these proceedings.

He said the affidavit of the AG was the only evidence being brought for the prosecution and he was the only witness for the prosecution.

He said Naidu had the fundamental right to challenge the AG’s evidence.

He claimed that the AG was not immune from being cross-examined.

He said there was no special limitation whether in Constitution or under any law which immunises his evidence from cross-examination.

In response, the counsel for the AG said there had been five Summons filed in this proceedings.

Gul Fatima said these two affidavits had also been filed by third parties and not the respondent himself.

She said the Facebook post remained the key material in this application.

The counsel said finding the contempt in this matter was entirely upon the court to decide.

She said the Summons filed was an exact replica of the earlier applications filed.

She said the AG was at the liberty to file the affidavit and that the respondent chose not to respond to the AG’s affidavit.

Ms Fatima said Naidu was not deprived of his rights and that the court had clearly accommodated Naidu’s Constitutional rights in this proceeding.

She said even in the criminal cases, the accused person had the right to remain silent or produce evidence to refute the evidence presented.

She said the AG had every right to bring the proceedings to court.

She said before the court, Naidu’s Facebook post was in alleged contempt.

She added that Naidu was not barred from challenging the evidence presented in the proceedings as he was given the right to file his responding affidavit.

The counsel said Naidu had exercised that right albeit by filing third party affidavits.

She said the Facebook post remained there and it was not relevant as to who has brought the proceedings. She invited the Court to consider that it would bring the committal proceedings against Naidu on its own Motion, or the AG who was entitled under law to bring such proceedings can file them.

She also said there was no time bar when it came to contempt of court proceedings and that Naidu was misconceived in holding the view that the period of time it took between the post being published and the proceedings being filed was relevant.

The counsel said an allegation of contempt concerning scandalising the Court was serious.

She raised the concern as to whether the respondent cared about the allegation of contempt or the protection of the bench from ridicule and scandal.

She questioned whether the respondent held the view that an allegation of scandalisng the court was a serious one as he appeared to have done little to address the contempt in question.

She said the allegations concerning the supposed animus that Naidu appeared to think the AG has toward him was not established by way of evidence before the Court.

She said Naidu appeared to be regurgitating this allegation since July 15 when the Summons to Set Aside was filed and in which animus was relied on as a ground for seeking that the ex parte order to issue committal proceedings be set aside.

She said it was clear from the current Summons that Naidu only wished to cross examine the AG on his Affidavit Verifying Facts, however Naidu had failed to point out which portions of the Affidavit were in contention, as it did nothing more than place the alleged contemptuous material before the Court.

She said if Naidu wanted to challenge anything in the Affidavit, he could have responded to the affidavit but he did not.

She said he relied on third parties to file Affidavits containing material that does not speak to the contempt at all neither of the two Affidavits filed by the respondent refer to the AG’s Affidavit.

The counsel said the position in Fiji in such matters was to allow cross-examination in exceptional circumstances and it is at the discretion of the Court.

The counsel said Naidu had all the rights to call witnesses and give evidence.

She said Naidu however did not have the right to compel anyone to be cross examined.

Ms Fatima said there was no presumption that the court would not grant Naidu his Constitutional rights at the time of the Hearing to present his defence or to offer evidence.

The counsel said the matters raised in the application did not relate to the respondent’s Facebook post at all.

She said at all times, it is only the Court that will determine whether the post is contemptuous or not. The AG had simply placed the material before the Court.

The counsel said there was nothing in the Constitution that compelled anyone to give evidence and it did not say you needed to cross-examine anyone.

She added that all of Naidu’s Constitutional rights remained protected and that compelling the AG to give evidence would not add anything to the Respondent’s defence.

She said the AG’s Affidavit was conclusive of all facts placed before the Court and that Naidu now needed to present his defence.

She also highlighted to the Court that Naidu had through his counsel submitted that the post was nothing but a “light hearted-quip”.

She said if indeed this was Naidu’s defence, Naidu was free to advance it in the substantive committal hearing, without the requirement of any person being compelled to give evidence.

The ruling will be delivered by the Court on October 28.

Story By: ashna.kumar@fijisun.com.fj