It’s human to be able to have a joke, says Australian King’s Counsel Martin Daubney.
He said this while responding to the submissions of the Attorney-General Aiyaz Sayed-Khaiyum’s lawyer, Gul Fatima, in the contempt of court trial of Richard Naidu at the High Court in Suva yesterday.
The matter was called before High Court judge Justice Jude Nanayakkara.
Mr Naidu’s King’s Counsel, Martin Daubney, made preliminary objections to the evidence in the case, saying the affidavit of Attorney-General Aiyaz Sayed-Khaiyum contained inadmissible material.
Mr Daubney asked the judge to rule on his objections before he proceeded further, saying it was necessary to decide what evidence applied in the case in view of his objections.
However, Justice Nanayakkara denied Mr Daubney’s application saying that he should make all his submissions.
Mr Daubney recorded his objection to the ruling, saying this would have an impact on the fairness of Mr Naidu’s trial.
Ms Fatima submitted that Mr Naidu made a Facebook post, which included an excerpt of a judgment showing the word injunction misspelled as injection, and a caption 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”.
She said by making the post, Mr Naidu invited Facebook users, globally, to interact with the post and laugh at the expense of the bench.
She also said Mr Naidu was referring to the COVID-19 vaccination program and saying judges were affected by vaccination campaigns.
Ms Fatima said it should be noted that there were applications filed before the court on the COVID-19 vaccines and laws surrounding the same.
“The respondent has lowered the independence of the bench by stating that the bench has been exposed to vaccination campaigns,” she said.
“The word ‘shielded’ from all this vaccination campaigning means the bench has been exposed and perhaps that’s why the bench is now committing spelling errors. Maybe that’s one side effect of the vaccine.”
She said there were many ways Facebook users would have read the post and submitted that what Mr Naidu was effectively saying was that judges could not spell correctly because they were exposed to vaccination campaigns.
“And for this reason, they are misspelling the word injunction as injection.”
Mr Daubney, said the facts against Mr Naidu had not been proved but that if the judge should decide that Mr Naidu was responsible for the post, the alleged post was juxtaposition, and that it was human to be able to have a joke.
“That is the human condition. We see the funny side of things,” he said.
“We see the funny side of circumstances.”
Justice Nanayakkara asked Mr Daubney if this extended to public platforms and he said it did.
He said a joke became contemptuous if it was scurrilous, grossly indecent, abusive, or grossly offensive.
“There was no suggestion, no serious suggestion, no corrupt, improper suggestion that the judges could be influenced in the exercise of their judicial duties.”
Mr Daubney said the work of judges was done in public and as such they were open to criticism, but over time they developed a “thick skin” to criticism.
Responding to a question asked by Ms Fatima, asking what Mr Naidu tried to achieve with the post and he said there was a possibility he was making a humourous observation to bring a smile to people’s faces – and that was “OK”.
“If he makes a humourous observation to bring a smile to people’s faces, that isn’t a scurrilous attack, that isn’t grossly abusive, that isn’t insulting.
“That doesn’t allege or infer a lack of impartiality, that doesn’t infer a lack of propriety.
“Then yes, that’s perfectly OK.
“If we’ve got to the stage where people in the country that was once termed the Isles of Smiles are unable to view life, at least with some sense of humour, we’ve reached a pretty sad state.”
The matter will be called for judgment on November 22.
