‘Etuate Lavulavu was fined $15,000 to be paid within four weeks, after he was found guilty of contempt of court, for the comments he made when he went on a program live-streamed on Facebook and YouTube and alleged bias against a trial judge.

He was sentenced on the contempt case on 8 May, at the Supreme Court in Nuku'alofa.

Acting Lord Chief Justice Tupou ordered that if the defendant failed to pay the fine within the appointed time, he shall be imprisoned for two weeks.

She also ordered that the offending program must be removed immediately and the defendant is to file a memorandum with the court confirming its removal within seven days from the date of the sentence.

'Etuate was found guilty of contempt of court, after a hearing of an application brought by the Attorney General for his committal.

A/LCJ stated that briefly, after the Court of Appeal quashed the convictions and sentences of the defendant and his wife in October 2022, their trial in the court below attracted much media attention. VPON Media and Broadcasting ran a total of 10 programs of interviews with the defendant and discussed his case.

She stated that the programs were live-streamed via Facebook and YouTube. During the live-streamed program on 26 October 2022, the defendant in response to a question from the interviewer, said:

"Yes I believe that is what happened and it was not just me who saw them I was very surprised...But they are political figures, two of them and others who are higher level than the Judge ....I really felt that he believed these people who were trying to mislead him from the side and that's where the truth was lost...."

The Attorney General's application consisted of six allegations of contempt of court, for statements made by the defendant in the program.

After a preliminary hearing before Lord Chief Justice Whitten on 28 February, 2023, it was determined that there was a prima facie case of contempt against him for only one of those allegations, that the statement, quoted above, imputed the trial judge's decision was influenced by political figures and persons of high rank.

Judiciary

The Crown submitted the aggravating factors were: the statement struck at the core function of a judge and his oath to perform truly and with impartiality, his duties as a Judge; the statement was widely published in Tonga and abroad; the defendant maintained his not guilty plea throughout the proceedings; and the statements have severely impacted the judiciary and undermined public confidence in the administration of justice in Tonga.

There were no mitigating factors in favour of the defendant and the Crown sought a penalty of imprisonment, and suggested three months was appropriate.

However, after the defendant apologised to the Court of Appeal as well as via VPON Media and Broadcasting live stream, the Crown filed supplementary submissions seeking to reduce the penalty to two months imprisonment.

In the absence of a precedent for a custodial sentence in Tonga, it was argued that the seriousness of the contempt and the fact the program is still available on Facebook and YouTube warranted such punishment. A fine was submitted as insufficient but if the court was to impose one, then it should be a substantial fine.

A fine of $20,000 was suggested. In support, it was submitted that the defendant is the Project Manager for Inter-Pacific Ltd. for Vava'u and he owns a consultancy company known as Tonga Media and Public Relations Ltd., submitted the Crown whose application was for the defendant to be committed if contempt was proved.

Media contempt

The A/LCJ stated as demonstrated by the comparable cases cited by the Crown, the courts had not deemed it fit to impose such a sentence in these types of cases; it had been rarely imposed in "media contempt" cases and should only be used in the most serious cases.

"Allegations that a judge is partial or biased are calculated to bring that Judge into contempt and have been considered by this court as serious for they undermine confidence in the basic function of a judge.

“I also note in the same judgment, His Honour considered the degree of the defendant's culpability by measure of his intentions. I have considered the comparable cases referred to by the Crown and have thought long and hard about the appropriate sentence to impose. I do not accept that a custodial sentence is warranted but that the fine imposed must be substantial and I will explain why."

She stated, firstly, the defendant embarked on speaking about his trial in this court and events surrounding the quashing of his sentence by the Court of Appeal via live-stream.

“According to him, it was off the cuff and unscripted. In my view, it was prone to overstepping the confines of fair and reasonable criticism into contempt as he did.

“Secondly, in the relevant program, and during these proceedings, the defendant demonstrated a high level of research skills and knowledge of what was applicable to his case. It has led me to the view that he ought to have known ascribing bias to the trial judge by allegations of having being influenced by political figures and persons ranking higher than him was contemptuous. He is a former Cabinet Minister, a Member of Parliament, a businessman, founder of a university and should have known better.

“Thirdly, advanced technology today, has made the creation and publishing of content by any person at any time widely accessible and at very little to no cost. Such advancements, when used safely, of course, benefit society. Similarly, its user friendly nature makes it susceptible to misuse and/or abuse. And when used in the latter, damage to individual's rights, privacy, reputation and institutions such as the courts in this case is at the click of a button to an infinite audience,” stated the Acting LCJ.

“It is disappointing, as noted by the Crown, that the offending program is still up and available on YouTube. Lastly, the instant contempt was a direct allegation of bias against the trial judge. Bias, if proven, may fall under judicial misconduct. The allegation is that serious. It seeks to question the credibility of His Honour's decision not only on this matter but potentially to all other matters on which he presides. And in a small jurisdiction, where the Supreme Court bench consists of three judges, the damage inflicted on the administration of justice is critical.”

Deterrence

She also stated any sentence must reflect the society's denunciation for the contempt, specific deterrence to the defendant and general deterrence to discourage others who intend to conduct themselves in this manner from doing so, and a warning that they will be severely punished.

“Aligned to those principles, the court as instruments of order and justice, must not shrink from passing appropriate sentences that also recognise the environment and times in which the offending occurs. The highest penalty of the comparable cases is $3,000 and that was 24 years ago when online platforms were not available or used here. To adopt that range is inadequate deterrence to dissuade this defendant or others from similar acts of contempt.”

The Crown acknowledged that the means of the defendant must be considered when imposing a fine.

“I agree. The range suggested by the Crown was $15,000 to $20,000. The defendant objected that $20,000 was 'too expensive',” stated the A/LCJ.

“He did not argue or present evidence as to his means or inability to pay and chose not to address the court as to what was reasonable and/or why $20,000 was too expensive. That opportunity was available to him but he elected not to take advantage of it.

“Having regard to the seriousness of the offending, the comparable cases, the principles of denunciation, specific deterrence for the defendant and a general deterrence to anyone considering such conduct, the principles discussed above and the continuing availability of the offending program on YouTube, I set a starting fine of $20,000.”

The A/LCJ stated that the defendant was not a first time offender but this was his first conviction for contempt of court.

The Court of Appeal decision, AC 10 of 2023 recorded that upon invitation; the defendant apologised for what he said about Justice Cooper and withdrew it. In addition, the defendant had also publicly apologised to Justice Cooper and the court in a program recorded on 31 October, 2023 on VPON Media and Broadcasting with Mr. Tonga and is available on YouTube.

“Accordingly, I deduct $5,000 in mitigation, resulting in a fine of $15,000. In viewing the defendant's apology online, it is acknowledged that Mr Tonga also offered an apology to the Court for any harm caused by the program.”

As a result, the defendant was fined $15,000 to be paid within four weeks. Upon failure to pay the fine is two weeks in prison.

The offending program must also be removed immediately and the defendant is to file a memorandum with the court confirming its removal within seven days from today. Costs were awarded in favour of the applicant, ordered the A/LCJ.

Re-trial pending

On 11 October 2022, the Lavulavu couple were freed by the Appeal Court, when their criminal convictions were quashed, in a successful appeal against convictions on three joint charges of obtaining money by false pretenses relating to a number of irregularities in an audit at the ‘Unuaki ‘o Tonga Royal Institute, which they operated.

However, at the same time, the Appeal Court was satisfied there was sufficient evidence to support convictions and remitted their cases for a retrial, at the Supreme Court.

The couple had begun serving prison sentences, after they were convicted by Justice Cooper in June 2021.