Wallis v Lee Kiat Lim [2000] PGNC 48; N2013 (25 September 2000)

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DEFAMATION - Policeman performing duties - Complaint by member of

public - Lodged with Police Public Complaints Unit - Defamatory letter of complaint - Defence - Fair comment: Defamation Act (Ch. No. 293), S.9(1)(c).

Cases cited in the judgment:
Henzy Yakham & Ors v. Stuart Merriam & Another SC617 (1999)

INJIA, J.: This is an appeal against the decision of a District Court dismissing the appellant’s claim for defamation brought against the respondent. The reasons for the decision made on 2/10/99 was stated as "Court finding - Complaint not proved. Case dismissed with costs". Full reasons for decision have been not provided by the Magistrate concerned. However, to overcome delay, both parties agreed that this Court to decide the appeal based on their written submissions which they filed before the District Court and I have agreed to adopt that course.

A short chronology of events leading to the appellant’s claim is this. The appellant is a policemen based at Lae. On 25/3/95, he, in the execution of his police powers, arrested the respondent and 2 others for drinking beer in a public place and confiscated from them 8 cans of beer. He had them charged and brought to Court. On 20/4/95, upon their guilty plea, the District Court convicted them and fined them K50.00 each. The Court also ordered the appellant to return the 8 cans of beer to the respondent and his two friends.

Between 25/3/95 - 20/4/95, the appellant stored the 8 cans of beer in his family refrigerator in his house because there was none at the police station where he was based. On the day of the Court decision, outside of the police station, the appellant handed over to the respondent the 8 cans of beer which were placed in a carton. The respondent took the beer and went home. At his house the respondent opened the carton and felt the beer cans were cold and he assumed that these beer cans were not the same ones which were confiscated from them. So he lodged a complaint with the Police Complaints Unit at Lae, saying the appellant did not return the original 8 cans of beer he took from them because the 8 cans of beer he returned were fresh or new "cold beer". The complaint was that the appellant stole the respondent’s 8 cans of beer and replaced them later with his own.

As a result of the complaint, the appellant was charged by the police department with a serious disciplinary offence, that is, with stealing the respondent’s 8 cans of beer. The appellant’s reply to the charge was that the 8 cans were stored in the refrigerator at his house because there was no refrigerator at the police station and the same were returned "cold". On 8/5/95, the Police Commissioner found him guilty of the charge and dismissed him from the police force. But the appellant sought a judicial review of this decision by the National Court. On 9/9/96, the National Court granted the review and quashed the Police Commissioner’s decision and ordered his re-instatement. The National Court found there was insufficient evidence to support the charge. The National Court concluded that the Police investigation material upon which the Commissioner acted "to some degree.... showed considerable bias against the plaintiff". The National Court found that the appellant’s explanation was reasonable and believable compared to the "rather flimsy and guessing" type of complaint by the three man. These and other findings are set out in the judgment of the Court, a copy of which was placed in evidence before the District Court.

Thereafter, the appellant filed a defamation suit against the principal complainant, the present respondent, alleging that he made false statements in his letter of complaint to the appellant’s superiors which caused him to be improperly and unfairly dismissed and which in turn caused his reputation to suffer.

"The learned Magistrate erred in law in dismissing this claim of (Defamation) when in the circumstances of the case -

*(a)*	*The Court’s decision was against the weight of evidence.*
*(b)*	*The court erred in law when it failed to consider the defendant’s complaint as defamatory in accordance with the provisions of Sections 2(1)(b), (c),*
	*3(b), 4(c)(ii), (iii) & (iv) of the Defamation Act (Ch. 293)".*

It is submitted by Mr. Poka for the respondent that the statements were not defamatory, but if they were, then the comments were fair in the circumstances: S.9(1)(c) of the Defamation Act. The appellant submits the respondent falsely accused him of stealing the 8 cans of beer because he had ill feelings against him for arresting him, and that he wanted to see the appellant punished in return, that the statements were defamatory and unfair, and that his reputation as a good hardworking police suffered as a result.

Defamation is defined as "an imputation concerning a person or a member of his family whether living or dead by which the reputation of that person is likely to be injured; or he is likely to be injured in his position or trade or other persons are likely to be induced to shun, avoid, ridicule or despise him": Defamation Act (Ch. No. 293), S.2; Henzy Yakham & Ors v. Stuart Merriam & Another SC617 (1999).

In the present case, I am satisfied that the statement or innuendo that the appellant stole the 8 cans of beer and replaced them with new ones was false and prima facie defamatory. The issue is whether the comment or statement was fair comment.

(1)

For the purposes of this Act, it is lawful to publish a fair comment .....

*(i)*		*the conduct of a public officer or public servant in the discharge of his public functions; or*
*(ii)*		*the character of any such person, so far as his character appears in that conduct;*
*(2)*	*Whether a comment is or is not fair within the meaning of this Act is a question of fact.*
*(3)*	*If a comment is not fair, and is defamatory, the publication of it is unlawful."*

There is no doubt that a policeman is a public servant. The performance of his police function is subject to public scrutiny and commentary, not only in the Courts, but also at administrative level. That is why there exists a Police Complaints Unit in the Police Department to facilitate public grievances over despicable conduct of policemen in the course of discharging their public function. In appropriate cases, the Police Department may process the complaint through the normal disciplinary process provided under Part IV of the Police Force Act 1998. These disciplinary provisions are designed to afford the policemen charged an opportunity to be heard on the charge laid against him before a decision on guilt and penalty is decided by the Police Commissioner. The Act prohibits appeal or review against a decision of the Commissioner but the Courts have held that such provision do not oust the Court’s inherent power to review administrative decisions. In a judicial review, the aggrieved policeman is given an opportunity to challenge the Police Commissioner’s decision and seek appropriate relief and these include quashing of the decision, re-instatement and ordinary damages for loss of salary income and emotional stress and hardships as a result of the unfair disciplinary process. I do not believe that the Police Force Act should be read to permit a policeman, whose official conduct is complained of, by an aggrieved member of the public to the policeman’s superiors, through normal internal administrative avenues, should feel defamed to be able to mount a defamation suit and succeed against the member of the public concerned. Section 9(1)(c) of the Defamation Act is consistent with the Police Force Act in that sense.

Returning to S.9(1)(c), I am satisfied that the respondent’s comments were a little adventurist but it was a fair comment. The respondent was handed over 8 cans of loose beer in a carton which were "cold", some one month after they were seized, and any ordinary member of the public would not be mistaken for assuming that the policeman must have consumed the 8 cans himself and replaced them under Court order. He had reason to suspect that the beer that was taken from him was not the same one returned under the Court order. He assumed that because the beer was not handed over to him inside the Police Station when he went there to collect them, or because the beer was not presented in Court at the time of the Court hearing, and because he was given "cold" beer in a carton, the appellant had stolen the beer or consumed it himself. Given the easily consumable nature of this particular product, this conclusion was not unreasonable. And so he lodged a simple complaint with the appellant’s superiors as he was entitled to. What happened within the police hierarchy in terms of internal investigation of the complaint and the subsequent disciplinary action that followed were matters beyond the knowledge and control of the respondent. If the Police Force approached the complaint in a biased fashion, then that is something which the appellant was entitled to challenge on judicial review and seek appropriate redress, as he did already.

For these reasons, I am of the view that the Magistrate correctly came to the view that the complaint was not proven and dismissed the appellant’s action. I dismiss the appeal with costs to the respondent.
___________________________________________________________
Lawyer for the appellant : Pryke & Bray
Lawyer for the respondent : In person

National Court of Papua New Guinea

Wallis v Lee Kiat Lim [2000] PGNC 48; N2013 (25 September 2000)