Nipil v Tan [2007] PGDC 95; DC606 (6 September 2007)

DC606

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 24 of 2007

BETWEEN

JACKLYN NIPIL
Complainant

AND

KENNY TAN
Defendant

Goroka: M Gauli, PM
2007: September 06

CIVIL - Defamation – Accused of being a thief – Criminal charge dismissed for insufficient evidence – Detained at the place of work for three hours after the close of business – Denied of her constitutional freedom after hours – Damages.

Cases Cited
Theresa Joan Baker –v- Lae Printing Pty Ltd [1979] PNGLR, 16
Wayne Cross –v- Wess Zuidema [1987] PNGLR 361

References
Nil

Counsels
For the Complainant - In Person
For the Defendant - In Person

06 September 2007

DECISION OF THE COURT

M Gauli, PM: The Complainants sued the defendant in damages for branding her of a thief, detaining her at the place of work for three hours after working hours, made a search of the complainant while alone at night without another female present and defamed her father of being a witch craft. The complainant claims damages in the sum of K10, 000.00.

2. Undisputed Facts

The defendant owns and operates a Kai Bar shop at the Gouna Centre in Goroka town. The defendant employed the complainant at his Kai Bar shop as a cashier for three weeks from the 06 to 20 of March 2007. At the close of business on the 20 of March, the defendant discovered that there was a short fall of K400.00 from the days taking. The complainant is the only cashier at the defendants shop. Defendant asked her of the money. She denied taking the money. After other employees have left the shop at 6:00 pm the defendant searched the complainant including her string bag (bilum) without anyone present. No money was found in her possession. Defendant detained her at the shop after working hours from 6:00 pm to 9:00 pm for three hours. The complainant resides at the Banana Block in West Goroka. At about 8:30 pm the complainant asked the defendant to release her as her place of residence is quite far from her place of work. Defendant refused to release her. However at 9:00 pm the defendant released her and told her to come back with the money next day in the morning. At 9:00 am the next day defendant went to the complainant’s residence with members of police force and arrested her. She was charged for stealing. She was held in Police custody for three days until she was released on K100.00 bail. Her criminal charge was dismissed on the 20 May 2007 for lack of evidence by the other Magistrate.

3. Disputed Facts

Defendant denied calling the complainant’s father a witchcraft.

4. The Issues

There are four issues to be considered. These issues are as follows:-

i. Whether or not the Complainant stole the K400.00 from the days takings.

ii. If the Answer to Issue No. 1 is “No”, then whether the accusation that the complainant is a thief amount to defamation.

iii. Does detaining the Complainant at place of work after working hours denied the complainant’s constitutional right to go home after working hours.

iv. Did defendant defame the complainant’s father by calling him a witchcraft?

I now discuss these issues.

5. Issue No 1: Whether or not the Complainant stole the K400.00 from the days takings.

The Complainant is the only cashier employed at the defendants kai bar shop. At the end of the days work, the defendant balanced the days takings and discovered that there was a short fall of K400.00 that day. He asked the Complainant of the money. The Complainant denied taking the money. She was searched of her person and her string bag. There was no trace of the money in her possession. One of the followings could have happened that would have resulted in the short fall. The complainant could have taken the money from the till and given to her relatives who visited her at the shop. Or the complainant could have given wrong changes to the shoppers that day. There is no evidence that the complainant was visited by some relatives or friends at the shop that particular day. So I would rule out the first possibility. However the possibility of her giving wrong changes to the shoppers is there. This could not mean that she stole the money.

6. The defendant tendered to Court a document marked EXHIBIT B1 and B2. This document shows some scribbling of some figures without any explanations by the defendant. I find it very difficult to comprehend it. EXHIBIT B2 shows a shortfall of K415.10 on the 18 of March 2007. From the evidence as presented before this Court, I could not be satisfied that the complainant had stolen the money.

7. Issue No 2: If the Answer to Issue No. 1 is “No” then whether suspecting the complainant a thief amount to defamation.

The defendant suspected the complainant of stealing K400.00. And the defendant told her that he will not send her home unless she produces the missing money. There is no doubt that the defendant called her a thief. The defendant proceeded and searched her, but there was no money in her possession, even after she told the defendant that she had not taken the money. Where words spoken of another person which words are likely to injure that persons reputation or his trade or profession amounts to defamatory imputation. The Section 2 of the Defamation Act, spells out this quite clearly. This provision states and I quote:

“2 Definition of defamatory matter

(1) An imputation concerning a person, or a member of his family, whether living or dead, by which –

• (a) the reputation of that person is likely to be injured; or
• (b) he is likely to be injured of his profession or trade; or
• (c) other persons are likely to be induced to shun, avoid, ridicule or despise him,

is a defamatory imputation.

(2) An imputation may be expressed directly or by insinuation or irony.

(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing defamatory meaning is a question of law.”

8. I find that the words spoken of the complainant were defamatory and were likely to injure her reputation. The Section 4 of the Defamation Act requires publication of the defamatory words. The defendant does not deny suspecting the complainant of stealing the money, so I have no difficulties in finding that the defendant did make the publication.

9. The defendant did not raise any of the defences under Section 9 to 12 of the Act. However his evidence given before this Court would seem to me that one of the defences namely a fair comment (s. 9); truth (s.10) or defence of excuse (s. 11) could be available to him. Taking into consideration that the defendant had referred the complainant to police and was charged for stealing, but provided no evidence or insufficient evidence resulting in the case been dismissed, I do not given any considerations to these defences. Where a person proceed to lay criminal charges against another person but fails to produce evidence, fails to prove a guilt against that person, then the defences provided for in the Defamation Act would not be considered in a civil suit.

10. Issue No 3: Does detaining the complainant at place of work after working hours denied the complainant’s constitutional right to go home after working hours?.

The provisions in the Constitution of Papua New Guinea gives each person certain freedoms to do anything that will not deprive the rights of another person. The Sections 32 and 36 of the Constitution specifically provided for these freedoms the s. 32 (2) states: “Every person has the right to freedom based on law, and accordingly has a legal right to do anything that – (a) does not injure or interfere with the rights and freedoms of others; and (b) is not prohibited by law, and no person – (c) is obliged to do anything that is not required by law; and (d) may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).”

11. The s. 36 (1) speaks of freedom from inhuman treatment, which states and I quote: “No person shall be submitted to fortune (whether physical or mental), or to treatment or punishment that is cruel or other wise inhuman, or is inconsistent with respect to the inherent dignity of the human person.”

12. I consider that when the defendant detained the complainant at the place of work after working hours for three hours from 6:00 pm to 9:00 pm was a clear breach of the complainant’s Constitutional rights under ss. 32 and 36. The defendant’s action was an interference to the rights and freedom of the complainant and it was inhuman.

13. Issue No 4: Did defendant defamed the complainant’s father by calling him a witchcraft? .

The complainant’s evidence is that on the evening of Tuesday 20 March 2007 the defendant said to the complainant: “You are a daughter of a magician (or witchcraft)”. The defendant denied saying her father was a witchcraft. Instead the defendant asked her: “Do you have some of your relatives magicians or witchcraft?” The complainant has no witness present at the time the alleged defamatory words were uttered. I am not convinced by the evidence of the Complainant that the defendant said defamatory words of the complainants father.

14. Damages:

Having satisfied that the defendant accused or suspected the complainant of being a thief and detained her for three hours after work, I find the complainant is entitled to damages. The defendant proceeded to search the complainant without the presence of another person and in particular in the presence of a female person.

15. The damages for defamation are at large and are to compensate the complainant for injury to her reputations. In the case of Theresa Joan Baker –v- Lae Printing Pty Ltd [1979] PNGLR 16, the National Court awarded K6, 000.00 in damages for publication of a defamatory statement of the plaintiff for calling her the most odious, revolting creature”. And the National Court in Wayne Cross –v- Wess Zuidema [1987] PNGLR 361 awarded damages of K4, 000.00 for publishing that the plaintiff was applying “Mafia tactic”.

16. In the present the complainant was called a thief. She was searched without anyone present. She was kept back at the place of work for three hours after work from 6:00 pm to 9:00 pm thereby denying her rights from going home to be with her family after work. Having considered all these circumstances, I would award a sum of K6, 000.00 damages in favour of the complainant. The amount payable in six months from the date of this order.

For the Complainant – In Person
For the Defendants – In Person