The CCF-Yabaki Sentence in Full

IN THE HIGH COURT OF FIJI AT SUVA  ACTION NO: HBC 195 OF 2012 
THE STATE -v- CITIZENS’ CONSTITUTIONAL FORUM LIMITED  and AKUILA YABAKI 

Respondents 
EX PARTE : THE ATTORNEY-GENERAL OF FIJI 
Applicant 
Mr R Green with Ms R Mani for the Applicant 
Mr N Williams SC with Mr J Apted and Mr J Cati for the Respondents 

SENTENCE 

 [1] In a judgment delivered on 3 May 2013 the Respondents were found 
guilty of contempt scandalising the court. On 17 June 2013 the parties 
appeared before this Court for a mitigation hearing. Prior to the hearing 
the parties filed affidavits and written submissions for the consideration of 
the Court. On the day of the hearing Counsel presented further oral 
submissions. 

 [2] The background facts were set out in detail in the earlier judgment and 
since they are relevant to sentencing it is appropriate to summarise them 
in this decision. Between 13 – 18 November 2011 the Chairman of Law 
Society Charity, a Mr Nigel Dodds, made a private visit to Fiji. The Law 
Society Charity is based in the United Kingdom and was established by the 
Law Society of England and Wales to promote law and justice issues with 
particular emphasis on legal education and human rights. The Law 
Society Charity decided to take advantage of the private visit by its Chair 
to evaluate “the position there” and “to publish a report.” For the 
purposes of the evaluation and the report the Chair restricted himself to 
interviewing selected persons on the main island of Viti Levu. 

 [3] Those persons selected and interviewed by Mr Dodds were identified in 
general but not by name in the Report dated 12 January 2012 that was 
subsequently published in the United Kingdom after the visit. The full 
report was annexed to the affidavit sworn on 16 July 2012 by the 
Applicant. Those who were not interviewed by Mr Dodds or approached 
for comment were listed in paragraph 4 of the same affidavit. The list of 
persons whom Mr Dodds did not approach includes virtually all those 
persons who perform functions or hold office in positions associated with 
law and justice in Fiji. 

 [4] Sometime after the Report was published there appeared on page 8 of the 
First Respondent’s newsletter “Tutaka” published in April 2012 an item 
with the heading “Fiji: The Rule of Law Lost”. The sub-heading described 
the item as an “analysis of the Law Society Charity Report 2012.” A copy 
of the newsletter including the item on page 8 was also annexed to the 
same affidavit sworn by the Applicant. The item that appeared on page 8 
was written by a Mr Jonathan Turner. No information about Mr Turner or 
his qualifications and work experience appeared as part of the item on 
page 8. It would appear that he was at the time an English volunteer 
legal practitioner attached to the First Respondent. 

 [5] The words in the item on page 8 that were the subject of the contempt 
proceedings were set out in the Statement that is required to be filed 
under Order 52 of the High Court Rules. The Statement alleged that the 
words:

“(a) The Law Society Charity (LSC) in its report, “Fiji: 
The Rule of Law Lost” provides a stark and 
extremely worrying summary as to the state of law 
and justice in Fiji; 

(b) The report highlights a number of fundamental 
failings of the current judiciary and legal structure 
in Fiji, particularly in relation to the independence 
of the judiciary; 

(c) That the independence of the judiciary cannot be 
relied on” scandalised the Court and the judiciary as a scurrilous attack on the 
judiciary and the members of the judiciary by lowering or by posing a real 
risk of lowering or undermining the authority of the judiciary and the 
Court. 

[6] At all material times the Respondents maintained their pleas of not guilty. 
The First Respondent is the proprietor and publisher of the quarterly 
newsletter “Tutaka” and the Second Respondent is the editor of that 
newsletter. 

 [7] The Respondents were found to be guilty of contempt scandalising the 
court on the basis that the words as understood by the newsletter’s fair 
minded and reasonable readers would have the effect of raising doubts in 
their minds that disputes between members of the public and between 
members of the public and Government would not be resolved by 
impartial and independent judges. I concluded that as a result the words 
had the effect of undermining the authority and integrity of the judiciary in 
Fiji and hence undermining public confidence in the administration of 
justice. 

 [8] The task for the Court now is to determine how should its power to punish 
the Respondents for contempt of court under Order 52 of the High Court 
Rules be exercised? At the outset I am compelled to indicate that in my 
judgment this is a case of contempt scandalising the court which should 
be punished by a penalty that reflects the public interest, acts as a 
deterrence and appropriately denounces the conduct of the Respondents. 
I do not consider this to be a case where the mere ordeal of court 
proceedings and an offer to pay costs with an apology is sufficient. Such 
an outcome would suggest that the court does not take seriously the role 
of safeguarding the community from attacks on members of the judiciary 
and the court which have the effect of undermining confidence in the 
administration of justice. 

 [9] In determining what penalty should be imposed on the Respondents by 
the Court there are a number of factors that are usually considered to be 
relevant. In Attorney-General for the State of New South Wales –v- 
Radio 2UE Sydney Pty Limited and John Laws (unreported appeal 
decision of the New South Wales Supreme Court No. 40236 of 1998 
delivered 11 March 1998; [1998] NSWSC 29) Powell JA indicated that it 
was appropriate to consider the objective seriousness of the contempt and 
the level of culpability (i.e. intentional conduct, reckless conduct, negligent 
conduct or conduct without any appreciation of consequences). 

 [10] Apart from seriousness and culpability, other factors that should be 
considered in this case are (i) any plea of guilty, (ii) any previous 
convictions for contempt, (iii) any demonstration of remorse and (iv) 
character and personal circumstances. 

[11] In my view this is a serious contempt. This conclusion was stated in the 
last paragraph of the earlier judgment and the reasons for that conclusion 
are discussed at length in the judgment. Its seriousness is re-inforced by 
the Preamble to “The Bangalore Principles” which, amongst other things, 
states that: 

“Whereas public confidence in the judicial system 
and in the moral authority and integrity of the 
judiciary is of the utmost importance in a modern 
democratic society.” 

 [12] In my judgment that there may not presently be in Fiji a parliamentary 
system of government does not in any way diminish the importance of 
maintaining public confidence in the judicial system and in the moral 
authority and integrity of the judiciary and the courts. By publishing the 
words “that the independence of the judiciary cannot be relied on” the 
Respondents were representing to readers of the newsletter that members 
of the public seeking to have their disputes resolved through the courts 
could not rely on: 

(i) members of the judiciary exercising their judicial function 
independently on the basis of their assessment of the facts 
and in accordance with a conscientious understanding of the 
law, free of any extraneous influences, inducements, 
pressures, threats or interferences, direct or indirect from 
any quarter or for any reason; 

(ii) members of the judiciary being independent in relation to 
society in general and in relation to the particular parties to a 
dispute which the judge has to adjudicate; 

(iii) members of the judiciary being free from inappropriate 
connections with, and influence by, the executive and 
legislative branches of government and appearing to a 
reasonable observer to be free therefrom; 

(iv) members of the judiciary in performing judicial duties being 
independent of judicial colleagues in respect of decisions 
which the judge is obliged to make independently; 

 (v) members of the judiciary encouraging and upholding 
safeguards for the discharge of judicial duties in order to 
maintain and enhance the institutional and operational 
independence of the judiciary; 

 (vi) members of the judiciary exhibiting and promoting high 
standards of judicial conduct in order to re-inforce public 
confidence in the judiciary which is fundamental to the 
maintenance of judicial independence. 

[13] The issues discussed above represent the six applications of the principle 
of judicial independence which as Value 1 is described in the Bangalore 
Principles as being a pre-requisite to the rule of law and a fundamental 
guarantee of a fair trial. The Respondents are telling their readers that 
members of the public cannot rely on the fundamental guarantee of 
receiving a fair trial. In my judgment the newsletter item on page 8 at 
the very least seriously risks undermining public confidence in the 
judiciary and the courts and hence public confidence in the administration 
of justice. 

 [14] The Respondents submit that the seriousness of the contempt is mitigated 
by the limited circulation of the newsletter. The material before the Court 
indicated that there were about 2000 copies printed. It is accepted that 
access to the newsletter is restricted in the sense that distribution is not at 
large as is the case with a daily national newspaper. I also accept that 
this is a matter to be considered when determining appropriate penalties. 

 [15] I do not accept the submission that the purpose of publishing the article 
was to generate debate about the issues raised by the Dodds Report. It is 
one matter to publish an article that presents two opposing arguments 
with the intention of generating debate as to the merits of each side’s 
position. Debate implies the existence of at least two opposing positions. 
The newsletter article does nothing of the sort. It purports to be an 
analysis of a report based on limited material obtained from persons 
selected by its author. In any event the submission does not in any way 
diminish the serious nature of the contempt. 

 [16] Turning to culpability which is an issue that by its nature is of more 
relevance to the Second Respondent. Whilst the existence of the intention 
to scandalise the court is not a necessary ingredient to establish a finding 
of guilt, the issue is relevant when considering an appropriate disposition. 
The Second Respondent has consistently maintained that he did not and 
does not consider the article in the newsletter published by the First 
Respondent to constitute contempt scandalising the court. In my 
judgment he is seriously mistaken and misguided. The Second 
Respondent is not a legal practitioner by training and before publishing the 
words “the independence of the judiciary cannot be relied on” he did not 
obtain any legal advice. It is a serious allegation against the judiciary. It 
does not matter that the article did not make any allegation against a 
sitting judge. It does however assert that the independence of the 
judiciary (i.e. the individual judges of the courts) cannot be relied on. I 
have no hesitation in concluding that those words do have the effect of 
posing a real risk of undermining the administration of justice. 

 [17] The Second Respondent appears to rely in part upon the authorship of the 
article itself and the author of the report as a basis for his conclusion that 
the article did not constitute contempt scandalising the court. Mr Turner 
and Mr Dodds may well both be legal practitioners. 

 [18] Neither the report prepared by Mr Dodds and published in England nor the 
article written by Mr Turner and published by the Respondents in the 
newsletter concerned the judiciary in England. In my judgment the issue 
for the Second Respondent was not whether the authors writing about the 
judiciary in Fiji considered that the material did or did not amount to 
contempt scandalising the court but rather whether the publication in Fiji 
of the allegation in the newsletter when considered objectively constituted 
contempt scandalising the Court. In my judgment that is a matter upon 
which the Second Respondent ought to have obtained legal advice based 
on the developing case law in Fiji. Furthermore, an article written by a 
volunteer attachment, although a legal practitioner, required extra 

vigilance on the part of the Second Respondent as editor. There is 
authority for the proposition that what may be regarded as tolerable 
criticism in a developed society may nevertheless be intolerable and 
contemptuous in a developing state where public confidence in the 
judiciary is not so well established and where the rule of law is as a result 
more vulnerable. (See the Privy Council decision in Ahnee and Others –
v- Director of Public Prosecutions [1999] 2 WLR 1305). Furthermore, 
the fact that the Respondents received no advice to the contrary from 
their legal representative concerning their plea of not guilty is not a 
mitigating factor. 

 [19] Finally I am not entirely satisfied that the Second Respondent can 
legitimately claim that his culpability should be limited to that which was 
urged before me by Counsel for the Respondents. Counsel submitted that 
the Second Respondent although intending to publish the article as editor 
had no appreciation of the potential consequences of doing so. However 
in my judgment the Second Respondent should have realized, before 
publishing, that the claim that “the independence of the judiciary in Fiji 
cannot be relied on” was unsupported by any material in the summary 
written by Mr Turner. This is even more so when considered in the 
context of the various applications of the principle of judicial independence 
in “The Bangalore Principles” to which reference has already been made in 
this decision. Reliance on events that happened in April 2009 does not 
constitute support for the assertion that the independence of the judiciary 
cannot be relied on in November 2011. 

 [20] As already noted, the principles that are generally applied in sentencing 
proceedings require the court to consider the issues of genuine remorse 
and any plea of guilty. In my judgment these two matters can be 
considered together since a plea of guilty, particularly an early plea of 
guilty, is regarded as one of the indicators of genuine remorse. When 
there is a plea of guilty a court will usually grant a reduction in sentence. 
The amount of the reduction depends on, amongst other matters, the 
stage in the proceedings at which the plea was given or an indication that 
there would be a plea of guilty. It is possible that a reduction in sentence 
of up to one third may be granted in respect of an early plea of guilty. 
The rationale underlying the reduction is “in the nature of a reward for 
keeping the machinery of justice moving and the cost of administering the 
criminal justice system down” (Archbold 2012 para. 5-118). 

 [21] In the present case at all times up to and including the day of the 
sentencing hearing the Respondents have maintained their pleas of not 
guilty. As a result the Respondents cannot claim any credit from the 
Court on that basis. 

[22] That leaves the question of remorse. The manner in which remorse is 
considered differs from the situation where there is a plea of guilty. The 
issue of what reduction should be granted for a plea of guilty is usually 
considered at the end of the sentencing process after the court has 
considered the aggravating and mitigating factors and having arrived at 
an appropriate sentence. Genuine remorse or contrition is usually 
regarded as a mitigating factor to be considered at the same time as other 
mitigating factors. However in a case where there has been a plea of not 
guilty it is difficult to entertain the notion of genuine remorse as a 
mitigating factor. To put it bluntly, a plea of not guilty is usually 
inconsistent with remorse or contrition. 

 [23] However, it is appropriate to determine first whether the Respondents 
have at any time expressed remorse or contrition. After the finding of 
guilt the Second Respondent in his affidavit sworn on 24 May 2013 has 
sincerely apologized to the Court and to the judiciary for the publication of 
the article in the newsletter (para.18). The Second Respondent has 
accepted full responsibility for the publication of the article and has 
authorized his Counsel to tender a formal and unreserved apology for the 
publication (para.19). The apology which was tendered and which the 
Second Respondent offered to publish was set out on page 16 of the 
Respondents’ Mitigation Submission filed on 11 June 2013. 

[24] The issue is to what extent should the Court regard such expressions of 
remorse as genuine and how much weight should the Court attach to such 
expressions of remorse as a mitigating factor in view of the consistently 
maintained plea by both Respondents of not guilty. It is apparent from 
the abundant affidavit material that the plea of not guilty entered and 
maintained by the Respondents was on the basis that the article in the 
newsletter did not amount to contempt scandalising the court. There is 
also expressed by and on behalf of the Second Respondent the claim that 
the article was written by an English volunteer lawyer who was attached to 
the First Respondent at the time and purported to be an analysis of a 
Report published in England. 

 [25] It may be possible on occasions to identify genuine remorse, even when 
expressed very late in the day following a plea of not guilty and to give 
some weight to that genuine remorse as a mitigating factor. However, I 
am not satisfied that this is such a case. 

 [26] Although the proceedings were not completed when the sentencing 
hearing commenced, Counsel for the Respondents informed the Court 
during the course of his oral submissions that the Respondents had 
already filed a notice of appeal in the Court of Appeal against the findings 
of guilt. The basis of that decision can be found in the affidavit of Cynara 
Teresa Mary MacKenzie sworn on 24 May 2013 at paragraph 12: 

 “One of the issues CCF is considering in making this 
decision is (again) the development of the law of 
contempt and the appropriate balance between 
commentary on the court system and the need to 
appropriately protect the Fiji court system.” 

 [27] The issue in these proceedings was in essence whether certain words 
appearing in the article and especially the words “that the independence of 
the judiciary cannot be relied on” constitute contempt scandalising the 
court. The article purported to be a summary of a report dated January 
2012. It purported to be an analysis of a report setting out the position as 
at November 2011. The only material in the article that related to the 
independence of the judiciary (in its various applications under the 
Bangalore Principles) was a reference to the April 2009 revocation of the 
Constitution and the removal of all those appointed under that 
Constitution including the judges. 

 [28] Neither the article in question nor these contempt proceedings had 
anything to do with what the deponent has referred to as “the appropriate 
balance between commentary on the court system and the need to 
appropriately protect the Fiji Court system.” 

 [29] I have concluded that in respect of mitigation, the remorse expressed by 
the Second Respondent must necessarily be regarded as less than genuine 
and of little weight. Similarly the apology must necessarily be considered 
in the same manner. 

 [30] One obvious mitigating factor that counts in favour of the Respondents is 
the fact that there are no previous convictions for contempt. In written 
submissions filed on behalf of the Respondents it is stated that neither 
Respondent has any prior criminal conviction of any kind. It can fairly be 
said that the First Respondent as an entity has a good reputation and that 
the Second Respondent is of good character. These conclusions are re-
inforced by the affidavit material filed on behalf of the Respondents in 
support of mitigation. 

 [31] Having considered the aggravating and mitigating factors it is now 
necessary to consider the personal circumstances of each Respondent and 
then determine an appropriate disposition in each case. 

[32] I propose to consider first the position of the Second Respondent, Akuila 
Yabaki, as editor of the newsletter. The personal circumstances of the 
Second Respondent are set out in his affidavits filed on 6 September 2012 
and 24 May 2013. The Second Respondent is aged 71 years old and is 
married with four adult children. Although their ages were not disclosed in 
any material before the Court, Counsel informed the Court from the Bar 
Table that their ages range from 32 to 43 years old. Following an early 
career as a teacher, the Second Respondent took up the study of theology 
and was ordained as a Minister in the Methodist Church in 1972. He then 
obtained a Bachelor of Arts degree from the University of the South Pacific 
in 1974 during the course of his appointment as part time Chaplain. He 
subsequently held a number of appointments within the Methodist Church 
both in Fiji and overseas. He took up the position of Executive Director of 
the First Respondent in May 1999 and is now its Chief Executive Officer. 
It would appear that this is a full time position and his current status as an 
ordained minister in the Methodist Church is not disclosed. The Second 
Respondent’s salary is $68,000.00 gross (but not including FNPF 
contributions) as Chief Executive Officer and that represents his only 
source of income. With his wife he jointly owns shares in Amalgamated 
Telecommunications Holdings worth about $10,000.00 and he has taken 
out a BSP Life Insurance Policy. The Second Respondent and his wife 
jointly own the family home at Colo-i-Suva. Since taking up the full time 
position as Chief Executive Officer of the First Respondent, the Second 
Respondent has received a number of awards and recognition from local 
and regional entities. 

 [33] The First Respondent was established after the first 1987 coup under the 
name “Back to Early May Movement” by a group of concerned citizens. 
The current name was adopted in 1991 and in 1996 the First Respondent 
was registered under the Charitable Trusts Act Cap 67. The First 
Respondent made extensive submissions to the Commission charged with 
drafting the 1997 Constitution. That draft was reviewed by the then 
Parliament and after considerable debate and critical amendments was 
passed and subsequently proclaimed in July 1997 to come into effect in 
July 1998. 

[34] Following the enactment of the Constitution the First Respondent took up 
an educational role involving constitutional and democratic issues. It 
increased its advocacy activities significantly following the 2000 civilian 
coup. In 2003 the status of the First Respondent as a charitable trust was 
revoked and as a result it is now registered as a company limited by 
guarantee. 

[35] In the affidavit sworn by Ms MacKenzie (supra) on 24 May 2013 at 
paragraph 15 the First Respondent is described as a donor-funded 
organization and its current principal donors are listed in the same 
paragraph. Its donors include the Department for International 
Development (DFID) of the United Kingdom and AusAid. The funding 
provided is usually “tied” although requests for additional funding for 
unforeseen expenditures must be made separately. The audited accounts 
for the year ending 31 December 2012 are attached to Ms MacKenzie’s 
affidavit. It is sufficient to note that total income for the year was 
$1,318,870 of which the principal source was grants amounting to 
$930,828. Total expenses for the year were $1,465,771 of which the 
principal item was salaries, wages, FNPF and training levy of $443,734. 
Although showing a loss, when accumulated funds of $367,793 were taken 
into account accumulated funds at the end of the financial year amounted 
to $220,892. Of donor income, the two largest contributors were AusAid 
with $231,288 and a source described as Conciliation Resources of 
$412,093. Conciliation Resources is a registered charity in England and 
Wales whose funding sources, activities and involvement with the 
Respondents were outlined in the affidavit sworn on 23 May 2013 by its 
founder and Executive Director, a Mr Andrew Douglas Carl. 

[36] Both parties filed written submissions on the issue of appropriate 
penalties. Both Counsel presented further oral submissions on penalty 
during the course of the sentencing hearing. 

[37] In the written submissions filed on behalf of the Respondents, the relevant 
case law on sentencing in both this jurisdiction and in overseas 
jurisdictions is discussed in some detail in paragraphs 21 to 31. In his oral 
submissions before the Court Counsel submitted that the Singapore 
decision in Attorney-General –v- Hertzberg Daniel and Others [2008] 
SG HC 218 was relevant in the sense that Singapore was a small Island 
State in which the decisions of the courts indicated jealous protection of 
the judiciary. Counsel for the Respondents urged the Court to consider, in 
view of the case law and the circumstances of the contempt that “the 
published findings and an order for costs should be adequate to vindicate 
the public interest.” 

[38] The written submissions filed by the Applicant also discussed at length the 
case law in Fiji on sentencing for contempt scandalising the court. The 
submissions then apply the facts of the present case to the principles that 
have evolved from the case law. The Applicant urged the Court to impose 
a substantial fine on the First Respondent and a custodial sentence of six 
months on the Second Respondent. 

[39] As I have already stated any penalty imposed by the Court for contempt 
scandalizing the court must reflect the public interest in the administration 
of justice, act as deterrence and appropriately denounce the conduct of 
the Respondents. This is not a case where the prosecution itself, the 
ordeal of the court proceedings, the published findings of the Court and an 
order for costs are sufficient to (i) vindicate the public interest, (2) deter 
other publications from making similar allegations and (3) appropriately 
denounce the contempt. I take particular note of the observations of 
Kirby P (as he then was) in Director of Public Prosecutions –v- John 
Fairfax and Sons Ltd (1987) 8 NSWLR 732 at page 741: 

“Woven through the language of the courts in their 
approach to penalty in such cases are references both 
to the intent and “culpability” of the contemnor and the 
need, objectively, to ensure, whatever the intent, that 
such conduct is emphatically denounced and effectively 
deterred.” 

[40] So far as guidance for determining appropriate penalties from previous 
decisions is concerned, especially those from overseas jurisdictions, I take 
note of the comments made by the Court of Appeal in Parmanandam –
v- Attorney-General (1972) 18 FLR 90 at page 99: 

“It is difficult to draw very much from sentences 
imposed in other cases as no set of facts completely 
parallels another and the gravity of contempt must be 
estimated in its own context.” 

[41] In my view the most appropriate guidance comes from the recent 
decisions of the Courts in Fiji since 2008 involving contempt scandalising 
the court by publication. Both parties have made reference to those 
decisions in their written submissions. 

[42] Since these proceedings were commenced under Order 52 of the High 
Court Rules it is appropriate to consider any guidance as to penalty that 
might by provided by Order 52. It is abundantly clear that under Order 52 
a person found guilty of contempt scandalizing the court is liable to be 
convicted and sentenced to a term of imprisonment (See Parmanandam 
–v- The Attorney-General (supra)). 

[43] However under Order 52 Rule 6 the Court may order that the execution of 
the order for committal shall be suspended for such time and on such 
conditions as may be specified. There is authority for the proposition that 
the inherent jurisdiction of the court to punish contempt of court is not 
affected by statute law dealing generally with imprisonment for crime. 
(See Lee v Walker [1985] QB 191). However if the Court is minded to 
exercise its discretion to suspend a committal, the suspended sentence 
must be for a fixed term and the period for which the order is suspended 
should also be fixed. 

[44] Another sentencing option is provided by Order 52 Rule 8 which provides 
that the Court may, when a person has been found guilty of contempt of 
court, order the person to pay a fine or to give security for his good 
behavior. The wording of the Rule indicates that these penalties are in 
addition to the power to commit. 

[45] In my judgment the contempt in the present case falls below the 
seriousness of the contempt involved in the 2008 decision of the High 
Court in Attorney-General of Fiji –v- Fiji Times Ltd and Others 
(unreported No.124 of 2008 delivered 22 January 2009). The reasons for 
this are the limited distribution of the newsletter and the less vitriolic 
language that constituted the contempt. However it must be remembered 
that the penalties imposed by the learned Judge in that decision were 
premised on an early guilty plea of the Respondents. In addition the 
penalty that should be imposed in the present case should be less severe 
than the penalty imposed by the Court in State v Fiji Times Limited and 
Others (unreported No.343 of 2011 delivered 20 February 2013) on the 
basis that there was in that case a grave aggravating factor and on the 
basis that the newspaper had already been found guilty of the same form 
of contempt on a previous occasion. 

[46] However this is nevertheless a case where the contempt is sufficiently 
serious to warrant the imposition of significant penalties. So far as the 
Second Respondent is concerned, taking into account all the matters 
relating to culpability I consider that a custodial sentence of three months 
is appropriate. A term of imprisonment is appropriate in view of the 
serious nature of the contempt and its potential effect on the 
administration of justice and the rule of law in Fiji. However I take into 
account the age of the Second Respondent and his hitherto good character 
together with the recognition he has received as the Chief Executive of a 
well known non-government organization. As a result I am prepared to 
order that such sentence should be wholly but conditionally suspended for 
12 months. In so far as the First Respondent is concerned I consider that 
a fine is the appropriate penalty and I order that the Second Respondent 
pay a fine of $20,000.00 within 28 days. 

[47] As for costs, the Court has received correspondence dated 24 June 2013 
signed by the legal practitioners acting for the parties that costs have 
been agreed in the sum of $5,000.00 with each Respondent to pay 
$2,500.00 each. 

 

[48] As a result the orders of the Court are: 


1. The First Respondent (Citizens Constitutional 
Forum Limited) is convicted and fined FJD 
$20,000.00 to be paid within 28 days from the 
date of this decision. 

2. The First Respondent is order to pay costs to 
the Applicant in the agreed sum of $2,500.00 
within 28 days from the date of this decision. 

3. The Second Respondent (Akuila Yabaki) is 
convicted and is sentenced to a term of three 
(3) months imprisonment to be wholly 
suspended for a period of 12 months upon the 
condition that Second Respondent pay a fine in 
the sum of $2,000.00 within 28 days. 

4. The Second Respondent is ordered to pay costs 
to the Applicant in the agreed sum of $2,500.00 
within 28 days from the date of this decision. 

5. The Respondents are ordered to arrange for an 
apology directed to the Judiciary of Fiji to be 
drafted and submitted within 28 days to the 
Court for approval and once approval has been 
advised to be published in the next edition of 
the First Respondent’s newsletter.  

6. The fine is to be paid to the High Court (Civil) Registry in Suva. 

 

7. The costs are to be paid to the Office of the  Attorney-General in Suva. 

______________________ 

W D CALANCHINI 

JUDGE 

9 August 2013 

At Suva