NATION | NEWS

Lawyers Make Arguments On Richard Naidu’s Facebook Post

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.
11 Nov 2022 10:29
Lawyers Make Arguments On Richard Naidu’s Facebook Post
From Left: Lawyer Gul Fatima outside the High Court in Suva, Richard Naidu (M) followed by his King’s Counsel Martin Daubney outside the High Court in Suva and Jon Apted outside the High Court in Suva on November 10, 2022. Photo: Ronald Kumar

The Facebook posting by lawyer Richard Naidu which is the basis of committal proceeding against him was labelled as a mere “humourous point by juxtaposing what was obviously a typographical error in a judgment with the obvious public interest, in the context of a global pandemic”, by his lawyer King’s Counsel (KC) Martin Daubney.

The one-day hearing concluded before Judge Justice Jude Nanayakkara at the Civil High Court in Suva and a judgment will be delivered on November 22.

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 alleging that Naidu has ridiculed the Judiciary in a Facebook post.

 

Objections on A-G’s affidavit and Statement

The hearing commenced with KC Daubney raising preliminary objections, objecting on the A-G’s affidavit and statement saying it was heresay and inadmissible and that the matter should be struck out or to be ruled as inadmissible as it did not contain evidence the applicant was able to admit of his own knowledge.

He said the A-G did not say he saw the alleged post and that the authorities compelled the applicant to prove the charge beyond reasonable doubt on the basis of admissible evidence.

He said there was no direct evidence that the post was published by Naidu.

In response, A-G’s lawyer Gul Fatima said Naidu’s counsel misunderstood the affidavit.

She said the material and screenshot of the post was annexed to the affidavit and the source was identified. His office brought to his attention the Facebook post.

She said nobody could stand and say he never saw the Facebook post and he did not have knowledge of it.

The Judge said he would deliver his ruling on the preliminary objections in the judgment.

 

SUBSTANTIVE HEARING

Applicant’s Submission:

Ms Fatima said the evidence contained in the affidavit of the applicant remained unchallenged.

She said Naidu, through his counsel, entered a not guilty plea to the allegation of contempt by way of scandalising the court and a Judge.

She said there was no evidence presented before the Court in the form of an affidavit or to challenge the matters set out in the applicant’s affidavit.

She highlighted the alleged contempt Facebook post.

The three-page judgment was delivered by the Civil High Court on January 21, which was delivered by a judicial officer of the Fijian Bench in respect of an application.

 

Ms Fatima highlighted that paragraph four and five contained the word “injection” as opposed to the word injunction.

She said Naidu was a legal practitioner and in reading the judgment, Naidu would have been clearly aware of what the facts of the judgment were, what the application was before the Court and indeed what the outcome of the proceedings was.

She said despite this, on February 2, 2022, at 12.53pm, Naidu published a Facebook post on his Facebook page cropping out a portion of the said judgment which contained the misspelled word.

She read out Naidu’s caption of the post which read “Maybe our Judges need to be shielded from all this vaccination campaigning. I’m pretty sure all the applicant wanted was an injunction (thinking face emoji)”.

 

Ms Fatima said these words were not innocently strung together by Naidu and he was aware that the words were contained in a judgment of the High Court and one which was delivered by a Judicial Officer.

She said Naidu’s Facebook post was publicly accessible and attracted 107 reactions, 11 comments and was shared two times. Out of the 107 reactions, 84 were laughing emojis or pictograms.

She also highlighted the comments posted on the post and one of it read “OMG. Hope it’s not an expat judge (emojis)”.

Ms Fatima said the presiding Judicial Officer was a Sri Lankan national.

She said the comments were not deleted by Naidu and it remained on the post for viewers to read.

 

She said if Naidu was concerned with the spelling error in the judgment, and in a case which his firm represented one of the parties, he could have simply written to the Registry and asked for the matter to be brought to the attention of the presiding Judicial Officer, however, Naidu did not do this.

She said Naidu through his counsel submitted that the post was nothing but a “light-hearted quip” and showed no remorse on his part.

She said the post was nothing but a “light-hearted quip”, Naidu took ownership of the post and submitted that in his opinion, the post was not contemptuous.

She said what Naidu was effectively saying was that the Judges could not spell correctly because they were exposed to vaccination campaigns and for this reason, they were misspelling the word injunction as injection.

 

Ms Fatima said Naidu did not use the word Judge, but Judges and that this included the Fijian Bench comprising of all Judges at all levels of the Judiciary.

She said it was never acceptable for any individual, including an officer of the court to be cracking jokes, or directly attacking the independence and capabilities of the Bench.

She said Naidu’s post was no laughing matter and basically the message put out by him was the Fijian Judiciary could not spell correctly and following on from that the Fijian Judiciary was unable to deliver properly written judgments.

 

She said Naidu did not wish to alert the general public of a spelling error in a judicial pronouncement and did not wish to express his concern or provide a correction, for public consumption, to clarify what the judgment was about.

Ms Fatima said Naidu was free to express his wit, if he thought that he often made light-hearted quips, but he could not do so at the expense of the Bench.

She submitted that Naidu be found guilty and convicted for contempt.

 

Respondent’s Submissions:

KC Daubney in his submission said the onus of proof rested on the applicant and the standard of proof required that the offence must be proved beyond reasonable doubt.

He said Naidu was presumed to be innocent until the charge was proven beyond reasonable doubt.

He said this was a jurisdiction to be exercised sparingly and with scrupulous care to be exercised only when the case was clear and beyond reasonable doubt.

He said it was far clear from what the paragraph immediately preceding the prayer for relief was and it was certainly not a particularised allegation of a charge.

 

He said the applicant could not rely on grounds which were not set out in the statement.

He said the only ground for committal was that it was “his Facebook post of February 2, 2022, at 12.53pm”.

He said it was incumbent on the applicant to prove beyond reasonable doubt that the alleged Facebook post in fact existed, the alleged post was in fact “posted” at 12.53pm on February 2, 2022, and that it was Naidu’s Facebook post.

He said the applicant had not adduced any evidence to prove any these matters to any standard, let alone beyond reasonable doubt.

KC Daubney said in the absence of the proof beyond reasonable doubt of these matters, the charge could not be maintained and the application must be dismissed.

 

He said even if the court was satisfied beyond reasonable doubt of the matters, the conduct of Naidu in publishing the alleged Facebook post particularised in Order 52 statement did not amount to a contempt scandalising the court.

He said the common law offence of contempt scandalising the court “involves attacks upon the integrity or impartiality of judges or court, the mischief aimed at being a real risk of undermining public confidence in the administration of justice, which must be established beyond reasonable doubt”.

He said the offence was not established by point to a mere possibility of that mischief occurring.

KC Daubney said a party ought not be convicted of such a contempt “unless the facts established beyond reasonable doubt that there was a real risk, as opposed to a remote possibility, that the broadcast item would undermine public confidence in the administration of justice”.

 

He said appreciating that this was the mischief at which the offence was directed also highlighted the longstanding acceptance by Courts of highest authority that not every comment on or criticism of a Judge or a Court would amount to contempt.

He highlighted to the Court that scurrilous meant “grossly or obscenely abusive”.

He said even a cursory review revealed that cases in which there had been found to have been a contempt scandalising the Court had involved allegations of corruption, gross personal abuse, amongst others.

 

He said the alleged Facebook post did not in any way question or impugn the integrity and impartiality of any particular Judge or Judges or the Courts generally.

He said it did not make any allegation of impropriety or misconduct or corruption of any kind against any Judge or the Courts.

He said it did not express or exhibit any form of abuse, let alone gross, obscene or indecent personal abuse or imply an attack of any kind against any Judge or the Courts.

KC Daubney said it was risible to suggest that Naidu’s alleged Facebook post was so egregious as to give rise to a real risk to the administration of justice in Fiji by undermining the authority, integrity and impartiality of any of the Judges or Courts of this country.

 

He said the alleged Facebook post was not and could not be seen to be contempt scandalising the court.

He said even if the Court found that the alleged Facebook post conveyed a criticism of the Judge for having published reasons with typographical errors, such criticism did not amount to contempt scandalising the Court.

He submitted that the applicant failed to prove any case of contempt against Naidu and the application should be dismissed.

 

Story by: ashna.kumar@fijisun.com.fj

 



Got A News Tip


Get updates from the Fiji Sun, handpicked and delivered to your inbox.


By entering your email address you're giving us permission to send you news and offers. You can opt-out at any time.


WEET BIX
For All Fiji Sun Advertising
Fijisun E-edition
Subscribe-to-Newspaper