George v Buchanan [2010] CKHC 28; Misc 90 of 2010 (10 December 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

MISC NO. 90/2010

IN THE MATTER of Sections 233, 235 and 237 of the Crimes Act 1969

BETWEEN

NORMAN GEORGE
Applicant

AND

TIM BUCHANAN
First Respt

AND

JOHN WOODS
Second Respondent

AND

COOK ISLANDS NEWS (2008) LIMITED
Third Respondent

Hearing: 9 December 2010
(by teleconference)
Counsel: Mr R Samuel and Mr N George, for Applicant
Mr D McLellan and Mr C Little for Respondents

Judgment: 10 December 2010

JUDGMENT OF GRICE J
[Application for leave to commence prosecution for criminal libel under s 235 of the Crimes Act 1967]

N George, Norman George & Associates, Avarua, Rarotonga
C Little, Little & Matysik PC, Maraerenga, Avarua, Rarotonga
Copy:
D McLellan, Barrister, Auckland, New Zealand

[1] Norman George, the Applicant/Informant, complains that he has been defamed by virtue of the publication in a cartoon in the Cook Islands News newspaper, circulated daily in the Cook Islands. He has filed a notice of intention to seek leave to commence the prosecution for criminal libel under s 235 of the Crimes Act. The notice does not specify exactly what the prosecution relates to. It merely, in wide terms, seeks leave "to commence prosecution for criminal libel". The application has proceeded on the basis that the publication complained about was a cartoon published on Friday, 17 September 2010. There are no affidavits in support of the application.

[2] This application was listed for hearing on 7 December 2010 at 2:15pm. As at 26 November 2010, after the matter was placed in the List by the Applicant for hearing, the application had not been served on the Respondents. Therefore, when the matter was called Mr Little for the Respondents advised that New Zealand counsel had been briefed but had had very short notice and was tied up in other Court hearings in New Zealand.

[3] A teleconference was convened on 6 December 2010. Mr McLellan, the New Zealand counsel for the Respondents, made himself available. He had sought an adjournment for the hearing of this matter. As a result of discussions during the teleconference he rearranged his schedule to be available to have the matter heard by teleconference on 9 December 2010. The Applicant was urging that the matter proceed with speed, and counsel for the Respondents cooperated to ensure he fitted in with the Court's timetable to have the matter dealt with in this sitting.

[4] This is the second attempt by the Applicant to commence a prosecution on the same subject matter. On 14 October 2010 his Honour Savage J made Orders striking out Informations laid pursuant to Ss 233, 235 and 237 of the Crimes Act 1961, on the basis that the Applicant had failed to obtain leave of a Judge to commence a prosecution of criminal libel in relation to those Informations. He ordered the Informant to pay costs in the sum of $750. Costs were to be paid within seven (7) days. They have not been paid, although the Applicant has apparently offered to pay by instalment.

[5] The Applicant has also filed civil proceedings against the same Respondents for defamation in relation to the same cartoon in this Court under Plaint No. 26/2010. Damages of $475,000 and a permanent injunction to restrain further or similar publications are sought. The proceedings appear to be at an early stage. The Respondents have indicated various interlocutory applications will be sought.

[6] The cartoon is headed up "Presenting the latest series of Cook Islands stamps featuring characters who've bilked locals of their money and/or conned Government!" Below the words are four cartoon style postage stamps with pictures and captions under each as follows: the first, "Milan Brick", the second, "Nigerian Scammer", the third, "Sheik Yerbooti". Below them, with a finger partly obscuring the face, a fourth cartoon is headed "Cook Islands 2c", (the other stamps show 10c). The Applicant alleges the fourth cartoon, which has no caption, is a cartoon depiction of him.

[7] The First Respondent is the cartoonist for the Cook Islands Times, the Second Respondent is the publisher, and the Third Respondent is the Cook Islands News (2008) Limited, the publisher of the Cook Islands News.

[8] The Cook Islands News publishes cartoons by "Kata". These provide commentary on politics. In those cartoons a character which the Applicant claims is him apparently regularly appears. It is common ground that the Applicant is a well-known local figure. He is a sitting Member of Parliament and practising Barrister and Solicitor. He has held various high political positions and has a public profile.

[9] The cartoon was published during the political campaigning before the 2010 Cook Islands Elections. The Applicant won his seat as a Member of Parliament by a majority of 45 votes. This apparently was a larger majority than when he won the seat in the Teenui-Mapunai Electorate in the 2006 Election. He obtained 79 seats whilst the only other candidate, being Pukeiti Ngamatua, obtained 34 votes. This evidence is set out in an affidavit of the Respondent, John Woods, the Managing Editor of the Rarotongan News. No issue was taken with that evidence, however Mr Samuel submitted that the Applicant might have possibly achieved higher polling if the cartoon had not been published.

[10] Mr Woods also says:
After the publication ofon of the cartoon the Cook Islands News received no comment or response abhe cartoon either positive or negative. The only comments hnts he has received about the matter generally, came after it was known that the Applicant had commenced action against the Respondents. These comments were critical of the Applicant's action.

He has received no approach from the Police or any official in relation to the publications, and is not aware of any official investigation or complaint about the matter.

He received an offer from Mr George o#160;November #160;2010 tenderin payment ment of $100, saying he could pay the costs off at $100 each month until settled because he had not been earning acome he last month. The proposal was not accepted and and the tendered payment was returned.

[11] Matariki Wilson, a reporter of Tauranga employed by the Cook Islands News, also filed an affidavit recounting an incident involving the Applicant's solicitor, Mr Samuel. 60;Samuel filed an d an affidavit responding. For the purposes of this hearing no objection was taken to the usual situation of the solicitor appearing for a party giving evidence.

[12] The relevant provision for leave is Section 233 of the Crimesprovides tdes that:

Criminal libel and publishing defined –

(1) A criminal libel is matter published, without lawful justification or excuse, either designed to insult any person or likely to injure his reputation by exposing him to hatred, contempt, or ridicule or likely to injure him in his profession, office, business, trade, or occupation, whether such matter is expressed by words, written or printed, or legibly marked on any substance, or by any object signifying such matter otherwise than by words, and whether expressed directly or by insinuation or irony.

(2) Publishing a criminal libel is –

(a) Exhibiting it in public; or

(b) causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with a view to its being read or seen by any person other than the person defamed.

[13] Section 235 provides that a prosecution shall not be commenced without the leave of a Judge of the High Court, and that the person charged shall have the opportunity to be heard "against the applica.

[14] The maximum penalty under s 237 of thef the Crimt that that can be imposed for the publication of criminal libel is one year, and in the case where the publisher knows it to be false, two years.

[15] These provisions are in the samms as provisions which have have now been repealed in Ss 211 andof the Crimes Act&#1ct 1961. Theovisions were repe repealed on 1 February 1993 by the Defamation#160;#160;1992. In addition to A-G v Pitt, the three High Court of New Zeacasesussing leave appl applications under s 213he New New Zealand Crim Crimes Act 1961, were the subject of detailed submissions.

The Applicant's case

[16] Mr Samubmitted that on its facs face the cartoon was seriously defamatory. It alleges the Applicant has "bilked" locals or conned the government. He is shown in the company of a convicted fraudster,n Brick, who was struck offk off the New Zealand Medical Roll for claiming to cure cancer, and Nigerian Scammers who are conmen and sometimes murderers. "Bilked" Mr Samuel submits, means to obtain money by deceit without justification by fraud or cheating. He submitted that the Court should make no factual findings at this stage (A-G v Pitt[1]) on their face the cartoonstoons were grossly insulting and libellous. Lack of public feedback (as deposed to by Mr Cook) does not mean there was not adverse public reaction as the Cook Islands News circulates the Cook Islands and there are many readers who are not able to express their comments in writing and whose primary language is Maori, who could not be writing to the Editor.

[17] Mr Samuel's submi is that this this case is so serious and clear that it speaks for itself. No evidence is necessary, and leave should be granted. He characterised the case as a David and Goliath case, where the Applicant is David without the financial resources of the Respondents. In addition, a civil case could be protracted and expensive for the Applicant.

[18] Mr Samuel submitted in ron to n to the public interest hearing, that in the case of Mr G, an MP relies on his repu reputation for effective governance and therefore this is a public interest issue.

[19] There was some suggestion, although idence of, the fact that the Police might take some interesterest in prosecutions. I put no weight on that suggestion.

[20] The Applicant relied on A-G v Pitt.[2] It was a decision of Chief Justice Greig J in ook Islands High CourtCourt on an application for leave to commence a criminal libel case. the offending publication was an artilleging political corruption and sexual impropriety by the Prime Minister. The leave was soas sought by the Attorney General. His Honour adopted the guidelines stated by Wien J in Goldsmithessdram Ltam Ltd[3] as applied in New Zealand in Police v McLachlan,[4] and Police v W.[5 His Honour also noted oted two other matters. The first is the right of freedom of speech, which in the Cook Islands is an Article of the Constitution:

...

That is subject to the provisions of Subs(2) (of Art 64) which recognises and declares that every person has duties to others, and accordingly is subject to the exercise of his rights and freedoms to such limitations as are imposed by any enactment or rule of law for the time being enforced, for protecting the rights and freedoms of others or in the interests of public safety, order or morals, the general welfare, or the security of the Cook Islands. The place of criminal libel is recognised as being a reasonable limitation on freedom of expression where the protection of reputation is at stake. ...

[21] The second matter that Greig J referreis the need to tako take account of the position of the complainant considered against the background of the community. He referred to the decision of Lord&#160e in giving Judgment of the Court of Appeal in Samoa in n Malifa v Sapolu,[6] which referred to each case turning on its own facts and social settings and close comparisons being unhelpful. Lord Cooke also said:
ockquotkquote>

Politicians are expected to have broad shoulders. In the interests of freedom of speech and democracy, they mus up with criticism, even of a strong and unfair kind. But there is a like between: severe cere criticism on the one hand and vilification or character assassination on the other.[7]

[22] His Honour adopted the three "guiding ideas" from Goldsmith in assessing and weighing up whether or not leave should be granted:

First, before a discretion can be exercised in favour of an applicant who wishes to institute criminal proceedings in respect of a libel, which he contends is criminal, there must be a clear prima facie case. What I mean by that is that there must be a case go to before a criminal Court that is so clear at first sight that it is beyond argument that there is a case to answer. Secondly, the libel must be a serious one, so serious that it is proper for the criminal law to be invoked. It may be a relevant factor that it is unusually likely for the libel to provoke a breach of the peace, although that is not a necessary ingredient at all. Thirdly, the questions of the public interest must be taken into account, so that the Judge has to ask himself the question "Does the public interest require the institution of criminal proceedings?" What is not appropriate, in my Judgment, is the question whether damages might or might not afford an adequate remedy to a complainant. I consider that that question is irrelevant. Once one arrives at the conclusion that the criminal law ought to be invoked, then it is not a private case between individuals: the state has an interest and the state has a part in it.[8]

[23] The Applicant submitted:

• This is a serious case in which the publication is designed to insult and is done with malice;
  
• The Applicant is the person depicted in the cartoon of the Cook Islands stamp. He is well-known as a Member of Parliament and Barrister and Solicitor;
  
• The cartoon has seriously defamed the Applicant and has had a serious effect, particularly on his personal and political life.
  

[24] The Applicant also submitted that:

1. Failure to make a payment in full in relation to the previous application was not a reason to refuse the present application, as an offer for payment by instalment has been made. The Applicant was awaiting substantial costs from an earlier trial. This is why he needs to pursue a criminal sanction and a civil remedy for the defamatory cartoons.
   
2. The Applicant should not be denied justice on the basis he is unable to afford a potential costs Order at the present time, and the previous Order for costs was only on the basis of a procedural omission.
   

100. Due to the inequality between the parties in terms of financial resources, a criminal sanction in terms of a State prosecution is justified.
     

4. The cartoons are continuing so State involvement is required and justified.
   

Respondent's submissions

[25] The Respondent also referred me to the relevant New Zealand cases on leave applications. In Police v McLachlan, Fraser J granted leave to the NalaZealand Police to commence a prosecution for criminal libel against the publisher of a privately published magazine called "Owl Information No. 6". This included a 12 page article contg infion cion critical of S of Sir Robert Muldoon relating to a period when he was Prime Minister of New Zealand. Burgess v Field.a name="fnB9" href="#fn9">[9] This is not a criminal libel case but Randerson J ga;J gave ded consideratieration to the UK and New Zealand authorities which are relevant to the leave for criminal libel prosecution. The third case is Police v W. cases all refer to the proper approach to an application fion for leave under s 213 of the New nd Crimes Aces Act as that adopted by Wien J in Goldsmith v Pram Ltam Ltd.

[26] The second decision was one of Fisher J in Police which ibscribed the application for leave as a "specialecial screening process" and noted that it conferred on the Court an unfetteredretion, but of course a discretion to be exercised judicially. In that case he was dealing ling with a series of anonymous letters which had alleged dishonesty and corruption against the complainant who was the local branch manager. The writer was an aggrieved former employee who sent the letters to various people including the complainant's superiors and others in the community. He remained anonymous for some time. As a result of the letters the complainant was asked to resign as branch manager, and had to resign as president of the local sports club, which had also received the letters. Fisher J ref with approval to prin principles enunciated by Wein J in Golh.


[27] Fisher J dealt with the Wein guidelines in turn. He noted (aadopt the formulation set out in the submissions of counselunsel for the Respondents):

1. It would be inappropriropriate to authorise the institution of criminal proceedings for libel unless "the case is a clear one".
   
2. The Court needs to be satisfied "that he statements were seriously defamatory of the complainant".
   

[28] The Respondent also pointed to other factors which were relevant in leave application cases:

1. Motivation of the publication by nothing more than "naked malice" (Police v McLachlan.[10])
   
2. Anonymity of the author which leaves the complainant without remedy for a period of time (Police v McLachlan.[11])
   

100. Which procedure and remedy are most suited to control a given type of undesirable behaviour. The State will often prosecute when the conduct of another citizen is seriously injurious to:
     
     1. effective government conduct of public affairs;
        
     2. the maintenance of peace among its citizens;
        
     3. the welfare of individuals.
        

4. There is a high onus on an Applicant seeking leave to prosecute a criminal libel (Burgess v Field.[12])
   
5. Damages are the ordinary remedy for libel. The implicit policy rationale for setting a high hurdle for criminal libel must have taken that into account (Burgess v Field.[13])
   

[29] Counsel for the Respondents also submitted that an application to bring a private prosecution must be treated with even greater conservatism than a Crown application because:

a. If the State chooses not to prosecute, it may be inferred that there is insufficient public interest to warrant a prosecution.

b. If no complaint is made to the Police, again this indicates a private dispute that is best dealt with in the civil Courts.

c. The opportunity for abuse of process by private prosecution exists. The independence of a State prosecution is absent.

d. The potential for misuse of the criminal process to extract advantages in civil proceedings exists, for example by pressuring civil defendants to settle to avoid a term of imprisonment.

e. Where a private prosecutor may not have the resources to satisfy a costs award, the Court should grant leave only if it can be satisfied that the respondents will not be prejudiced by this fact. This factor could be ameliorated by an order that security for costs be provided.

[30] In this case the Respondent submitted the Applicant is not an appropriate Informant because:

1. The Applicant has a substantial personal benefit at stake;
   
2. The required prosecutorial objectivity is not present as evidenced by the threat by the Applicant solicitor to put the Cook Islands News out of business (Affidavit of RAB Samuel dated 8 December 2010>

100. The Applicant has failed to pay the $750 costs ordered on the striking out of the prs Infion.
     

4. The lack of insight by the Applicant in that he considered the failure to apply for leave to prosecute was, as the Applicant puts it, a "procedural omission" (the submission of the Applicant before Savage J on 14 October 2010), ites he is not a resa responsible prosecutor. His Honour responded that "It is not a slight procedural matter. It is absolutely jurisdictional".
   

[ounse the Respondents also noted that the Cohe Court wurt was boas bound to look at all the circumstances to come to a conclusion that there is a clear prima facie case (Desmond v Thorne:[14])

[32] He submitted:

1. Civil proceedings provide an adequate remedy in this case. Interlocutory remedies are available if the Applicant is concerned about continuing publications. An interim injunction application is available to the Applicant.
   
2. The cartoon complained of is not a defamation of such seriousness to "warrant the transition from a civil remedy to a criminal one".[15]
   
100. The lack of public interest or response as noted in the affidavit of Mr Cook.
     
     4. The strength of the case: the pution is a single cartoon. The Applicant is a public figure who at the relevant time was stas standing for public office. He can expect robust comment in line with the principles of freedom of expression and the application of the principles in Lange v Atkinson.[16] No evidence was produced by the Applicant as to why his case is so strong and clear that the Court should grant leave. In the New Zealand cases and A-G v Pitt evidence was adduced.
        
     5. There is no likelihood that this publication will provoke a breach of the peace. The argument the prosecution might publish other publications in similar circumstances is irrelevant.
        
     6. The State has not taken steps. There is no evidence of complaint to the Police nor of any investigation.
        
     7. Overall it is not a libel "so serious that it warrants the intervention of the criminal law": Police v W.[17]
        
     
     [33] I have weighed up the matters put before me which go to the assessment of the leave applications. In particular:
     
     1. The burden on the Applicant: The Applicant has filed no evidence. He attempted to provide evidence by way of submissions. Mr McLellan objected to thesemattempts and I upheld the objections. The Applicant submitted that it is not appropriate to make findings of facts on the merits of the case. However, I am required to assess the evidence and circumstances in order to reach a conclusion as to the seriousness of the libel. It is the Applicant's burden to satisfy me on the leave application.
        

I am asked to take the cartoon itself as evidence of the serious libel. I accept for the purposes of this application that the Applicant would be recognised from the cartoon. The words in the cartoon with the juxtaposition of cartoons of Milan Brick and the Nigerian Scammer. I am not familiar with, nor was there any evidence before me about, "Sheik Yerbooti", so I do not take that into account. I accept, however, that I must find a clear prima facie case which raises hurdle for bringing the leave application. As Randerson J noted,[18] the onus is high to establish a clear prima facie case. It must be beyond argument that there is a case to meet. I am of the view that the cartoon meets that test sta on its own.

2. Seriousness of libel: I do not consider the libel complained of is so serious that it is proper for the criminal law to be invoked. Standing back and looking at it at a whole, the rhetorical nature, the fact that it is a cartoon, it occurred in the run-up to political elections when there was much commentary on the various campaigns and politicians, the comparisons to Milan Brick or a Nigerian Scammer was obviously exaggerated and the public would not likely take the comparison too seriously. It is in the context of politics and a politician should expect some robust commentary. Cartoons and satire, political and otherwise, have been the subject of very few defamation actions. That is because many of them can be categorised as honest opinion and perhaps because public figures have come to expect exaggerated and entertaining commentary on their activities.[19] The protection of freedom of expression in this case weigh towards a civil remedy rather than a criminal prosecution. As Lord Cooke put it,[20] "politicians are expected to have broad shoulders".
   

100. Public interest: The libel complained of does not provoke a breach of the peace,
     

4. The State's involvement: The State has taken no interest in prosecution. There appears to be no public interest which has concerned the State to pursue a prosecution. In this regard I also take into account the attitude of the Applicant to this matter, as I have outlined above. On its own the non-payment of costs on the previously laid charge would not be sufficient to count against allowing the Applicant to prosecute. The non-payment together with his attitude to the requirement to apply for leave demonstrated before Savage J gives ncerns about the imhe impartiality of the Applicant as prosecutor.
   
5. Other remedies are available if the Applicant wishes to seek interim relief. A criminal prosecution is not the answer to allegations of continuing defamation.
   
6. Lack of resources by the Applicant is not a factor to be taken into account in support of granting leave. In fact it may be a factor which impugns his impartiality as a prosecutor.
   

[34] Taking all matters into account I refuse the application for leave to commence prosecution for criminal libel.

[35] Costs are reserved. Counsel may file submissions in relation to the issue of costs and quantum as follows:

1. The Applicant is to file and serve submissions within seven (7) days of this Judgment.
   
2. The Respondents have three (3) days from receipt of the Applicant's submissions to reply.
   

100. The Applicant has two (2) days from receipt of the Respondents' submissions to reply.
     

Grice J

---

^[1] A-G v Pitt [2005] NZAR 599.
^[2] A-G v Pitt [2005] NZAR 599.
^[3] Goldsmith v Pressdram Ltd [1977] 2 All ER 557.
^[4] Police v McLachlan [1989] 3 NZLR 689.
^[5] Police v W [1989] 3 NZLR 696.
^[6] Malifa v Sapolu [1998] WSCA 5.
^[7] A-G v Pitt at [10].
^[8] Supra at [10].
^[9] Burgess v Field [2007] 3 NZLR 832.
^[10] At 700.
^[11] At 700-701.
^[12] At 27.
^[13] At 28.
^[14] Desmond v Thorne [1983] 1 WLR 163 (QBD) at 168-169.
^[15] Fisher J in Police v W^[16] Lange v Atkinson [citation]
^[17] At 699.
^[18] Burgess v ss v Field at [27].
^[19] Burroughs and Chair Media Law in New Zealand (5^th ed) Oxford Universitys 2005 2005, Melbourne, at p 19.sup>[20] Mafia v Sapolu – referred to in A-G v Pitt at [10].