Katun v Asiri [2003] PGDC 14; DC182 (24 January 2003)

DC182

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 44 OF 2002

BETWEEN

Gabriel Katun
Complainant

V

Amea Asiri
Defendant

Daru: Madu. Pm
24th January 2003

LEGISLATION
Defamation Act Chapter 293

CASES CITED
Nil

Counsel
Complainant: In Person
Defendant: In Person

The complainant in this case is claiming damages against the defendant alleging that on 23rd November 2001, he made a defamatory statement saying Gabriel Katun is a jealous person and that he has carried out his business dishonestly thus it would be fitting to say that a complainant suck the defendant' dick.

The complainant relies on the following facts that on 23rd November 2001, at about 3.30 pm the complainant in company of Thomas Bama and Robin Sawi drove to the airport and parked the Mitsubishi Galant on the left hand side of the road. There were less than 10 vehicles parked in front of the complainants vehicle on the left hand side of the road. There were also other vehicles parked on the opposite side of the road.

The airport was full of people arriving and departing whilst others were there to meet the passengers arriving from Port Moresby. There was no vehicle parked behind the complainants vehicle at the time of parking on the left hand side of the road. The complainant started his car and was reversing not realising that Nissan Patrol was parked at the back. The complainants vehicle hit the defendants vehicle and immediately he drove forward and stopped the vehicle to check the extent of damage. The complainant the apologised to the defendant saying he was sorry for what did and gave his explanation but the defendant did not accept his apology. The defendant instead directed obscene language at the complainant saying "Gabriel Katun is a jealous person and that he has carried out his business dishonestly, thus it would be proper and fit for the complainant to suck the defendants dick".

The matter was suppose to be proceeded by affidavit evidence however due to complainants non appearance the court did not allow any cross - examination by either of the parties. The defendant submitted for the court to consider the evidence that was already presented to court. The complainant presented four affidavits whilst the defendant presented three affidavits. The decision of this court is based on the evidence presented.

Before examining the evidence, it is proper to define what is defamatory? The Law of Tort seventh Edition John Fleming at P.501 states and I quote "a defamatory statement may be defined as one which tends to lower a person in the estimation of his fellow men by making them think less of him. It takes the form of an imputation calculated to bring the plaintiff into hatred, contempt or ridicule whether by direct statement, irony, caricature or any other means but not necessary that the words have tendency to excite feeling of disapprobation, provided they cause him to be shunned and avoid by his followers.

In PNG defamatory matter is defined under s.2 of Defamation Act chapter 293.

S.2. Definition of Defamatory Matter.

(1) An imputation of that person or a member of his family,

Whether living or dead by which:

(a) the imputation of that person is likely to injured or,

(b) he is likely to be injured in his profession or trade or,

(c) other person are likely to be induced to shun, avoid, ridicule or despise him is a defamatory imputation.

To determine whether a statement capable of being defamatory, one looks not to the intention of the author but rather the effect of it upon the person by what is heard or seen. Having stated the law, I will now refer to evidence.

Complainant called five witnesses of which three were present when the defamatory remarks were uttered whilst the fourth witness gave evidence of complainant being the director of Soho Trading Company.

The first three witnesses including the complainant gave evidence that the argument started as a result of accident caused to the defendants vehicle by the complainant vehicle in the course of reversing. It was at that point in time when the defendant uttered the defamatory words saying" Gabriel Katon is a jealous person and that he has carried out his business dishonestly thus it would be proper and fit for complainant to suck the defendants dick. The witnesses stated that there were plenty of people at that time when the defendant said the above mentioned words.

The complainant said he was trying to establish reputation of his company Soho trading Company as a chairman but the words the defendant used in the public hurt him and his family when he was trying to build his reputation.

The defence called total of three witnesses including the defendant. Two of the witnesses were present when the incident took place. The complainant when reversing his vehicle hit the defendants Nissan Patrol on left front side close to the signal light which caused a dent. The witnesses stated that the defendant did go out and talked to the complainant telling him that vehicles cost a lot of money to purchase and he must see the road before driving and then swore at him saying "skin my dick" but admitted that the words spoken were out of anger.

The issue to determine is whether the words uttered did defame the character of the complainant?

The evidence is very clear that the defendant did admit that he used the abusive words and I quote "skin my dick" and not "suck the defendant dick"

From the evidence, it is that the witnesses who came forward to give evidence were together with the complainant and were present when the words were spoken. Further the complainant stated that the words spoken by the defendant did hurt him as a person and the family.

For the defendant to prove that the statement was defamatory, the evidence must show that the statement was published. The test is not the nature of the defendants intention but the meaning which would be imputed by a reasonable persons.

The complainants evidence show that there were many people around at that time the words were said and the bystanders all heard it and may have made their own conclusion about the complainant however there is no evidence to suggest that the words uttered did defamed the complainants character.

I am of the opinion that words said did not in any way damage the character and reputation of the complainant. Accordingly the complaint is dismissed

In Person: Complainant
In Person: Defendant