Pulu v Rex [2000] TOCA 17; CA 27 1999 (21 July 2000)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY

Cr. App. 27/99
CR.647/98
BETWEEN

‘ISILELI PULU

Appellant;
AND

REX

Respondent

Coram:
Burchett J, Tompkins J, Beaumont J.

Counsel:
Siosifa Tu’utafaiva for the Appellant
John Cauchi for Respondent

Date of Hearing :10 July 2000
Date of Judgment :21 July 2000

JUDGMENT OF THE COURT

The appellant was charged with defamation of the King, contrary to ss 2 and 3 of the Defamation Act (cap. 33).

The following were the particulars of the offence:

‘ISILELI PULU on or about 5^th November 1997 you did write a letter (which was subsequently published in the "Taimi 'o Tonga" newspaper, volume 8, No 45 of 5^th November 1997) in which you published the words:

"He neongo e nofo pe 'a e Pule puaka 'i he ve 'e’ a puaka, ka 'oku tu’o 2 pe 'ene ‘ahia ‘a e fanga puaka he ta'u."

which translated is:

"Even though the Chief pig lives next to the pig sty, he only visits the pigs twice a year."

Taken in the context of the letter it is alleged that those words carry the imputation that:-

(i) The King is a pig or is a carer of pigs

(ii) The King is indifferent to the proceedings of the Legislative Assembly."

Following a trial before Ward CJ, he was, on 27th July, 1999, convicted of the offence charged. He was fined $1,500. He has appealed against conviction and sentence.

The statement relied on

The Crown relied on the contents of a letter the respondent wrote on 5th November, 1997 to the Taimi 'o Tonga newspaper. As the significance of the relevant parts of the letter should be judged in the context of the whole of the letter, we reproduce it in full as it was presented to the court:

"Source: Taimi 'o Tonga Vol 8 No. 45 November, 5 1997

"The Way of Life Within a Pigsty"

[Translation Only]

Sir,

We are all well acquainted with the way of life of pigs that are kept in a pigsty .Even though the sty and its fence are beautiful they will still behave like pigs.

At a pigsty in the centre of Nuku'alofa, its nature is different and exceptional from any other pigsty in Tonga, the Pacific, and even the world. And though the Chief pig lives next to the pigsty, he only visits the pigs twice a year. That is those who dig up and muddy themselves there are 12 attractive boars, 9 large pigs (who just grunt and lie down), and 9 piglets.

It is only natural for the larger pigs to feel a common bond for each other, as they have been selected and cross-bred from a customary dynasty of pigs. And they are very close in body and blood-ties, different from the piglets, as they have only been recently adopted.

The most exciting time is their feeding time. The share, the smallest portion always is the piglets because they are small physically and in number. Whereas the bigger portion is for the larger pigs as they are physically stronger, selfish, cranky and are numerous. And if their portion that was shared out finishes they will still chew noisily. Some will yelp and run about and they won't be calm until some more scraps have been thrown in.

The most surprising thing, is that it is another large pig who cares for the pigs and no wonder because he is very gifted. This job is a small matter to him as he does not care about the mess and filth within the sty. And the larger pigs dominate, flatulate, and casually make a mess. What's exciting is the pig carer's best trick is burying his fellow pigs' mess. Even though the piglets keep on digging it up.

Nevertheless that is the way of life within a pigsty. The strong will always rule over the weak. We cannot criticise the larger pigs as they have no brain, conscience, soul, law or God.

Fortunate are we, mankind, as we are the pinnacles of God's creation. Even though it has been proven, it is quite possible for Godly grace and the pig's way of life to blend within man.

Respectfully Yours,

'Isileli Pulu

Houmakelikao"

At the trial an issue arose concerning the meaning of the expression "Pule puaka".The Crown initially translated the expression as "the Chief pig." In the course of the trial, on the application of the prosecution, the Chief Justice amended the particulars of offence by adding the words " or is a carer of pigs". The allowing of this amendment is one of the grounds of appeal to which we later return.

In his judgment the Chief Justice set out portions of the interviews of the appellant by the police. We do not reproduce them. The appellant did not admit that he intended to refer to the King and the Legislative Assembly, but nor did he deny it. He elected not to answer directly the questions put to him.

The Chief Justice expressed his findings on the evidence called by the prosecution in these terms:

"The prosecution called the deputy editor of the newspaper. He expressed the view that, when he first read the letter, he considered it referred only to pigs. He told the court that the accused had frequently written to the paper criticising people and institutions and airing his views about government and political matters. He could not recall him having ever written previously about pigs.

Three other witnesses were called about the effect of the letter. One clearly stated he had never read the article and I discount his evidence. The other two were clear that the letter referred to the Legislative Assembly and the King. It was significant in the context of this case to see that one of the witnesses was extremely reluctant to give his opinion because he found it difficult to repeat something as disrespectful as this in court."

The appellant did not give or call evidence.

The offence charged.

The offence with which the appellant was charged is contained in ss 2 and 3 of the Defamation Act (cap. 33):

"2. (1) defamation of character consists in speaking or writing, printing or otherwise putting into visible form any matter damaging the reputation of another or exposing another to hatred contempt or ridicule or causing him to be shunned.

(2) ....

3. Every person who shall defame the character of his Majesty the King or her Majesty the Queen shall on conviction thereof be liable to a fine not exceeding $2,000 and in default of payment to imprisonment for any term not exceeding two years."

Counsel for the appellant accepted that the Chief Justice correctly set out the burden of proof and the elements of the offence. The burden lay on the prosecution to prove the words set out in the indictment, and that they were published in writing, printing or otherwise in visible form, that they refer to the King, and that the innuendo it claims to make that inference is proved. In a trial by judge alone, the judge must decide if the words are capable of bearing the meaning alleged and, if so, whether they do bear that meaning. The judge must then consider whether it is proved that the meaning they bear damages the reputation of the King or exposes him to hatred contempt or ridicule or causes him to be shunned. As this is a criminal charge each of these matters must be proved beyond reasonable doubt.

The appeal against conviction

Counsel for the appellant advanced two grounds in support of the appeal against conviction.

First, he submitted that the Chief Justice erred in allowing the prosecution to amend the particulars of the charge in the manner to which we have referred. This amendment was applied for and granted after the Crown had opened its case and after the evidence of three of the five witnesses had been heard. However, as the Chief Justice recorded in his judgment, he allowed the amendment subject to the right of the accused further to cross-examine the witnesses already heard - a right he chose not to exercise. Mr Tu'utafaiva, however, submitted that it was generally unfair to allow the amendment of the particulars at that stage of the trial. He did not submit that the appellant had been prejudiced in any particular respect, but rather that allowing the amendment resulted in unfairness of a general nature.

We do not accept that submission. The amendment was to the particulars of the charge, not to the charge itself. Further the amendment was only to the translation of the words in Tongan that the appellant had used in his letter. It was simply a matter of describing more accurately in English what the appellant had written in Tongan. The appellant himself, of course, knew exactly what he had written and what those words meant. We can find no grounds for holding that there was any element of unfairness in allowing the application for amendment at that stage of the trial, particularly where the appellant was given the right to question further the witnesses who had already given evidence. This ground cannot succeed.

The second ground advanced was that the Chief Justice erred in deciding that the particular words relied on, in the context of the letter as a whole, exposed the King to ridicule and damaged his reputation without evidence from one or more witnesses to that effect. Mr Tu'utafaiva submitted that before the Chief Justice was entitled to make that finding, he had to have before him evidence from one or more witnesses to that effect. He was not entitled to draw his own conclusions from the words used in the letter, unsupported by direct evidence from witnesses saying that they thought that the words used defamed the King in the manner alleged.

We are not able to accept that submission either. The letter was itself evidence. The Chief Justice was entitled to have regard to the whole of the letter in deciding whether it defamed the King as alleged. In doing so he could take into account, for example, phrases such as "what's exciting is the pig carer's best trick is burying his fellow pigs' mess." and "We cannot criticise the larger pigs as they have no brain, conscience, soul, or God." There are other passages in a similar vein.

The Chief Justice was entitled to conclude that the words relied on, taken in conjunction with other passages in the letter such as those to which we have referred, are defamatory of the King. As he put it, the description of the King as a keeper of pigs is, in itself, a matter that exposes him to ridicule. Further, the description of the King as the boss of the pigs that are alleged to behave in the manner described in the letter adds significantly to the defamatory meaning of the references to the King in the letter. For the King to be said to be indifferent to members of the Legislative Assembly behaving in the way described, damages his reputation and further exposes him to ridicule. The Chief Justice did not need evidence to that effect. He was entitled to draw those conclusions from the words themselves. The second ground also cannot succeed.

The appeal against sentence

Mr Tu'utafaiva submitted that a fine of $1,500, when the maximum fine was $2,000, is out of proportion to the seriousness of the offending, and therefore excessive.

This was a satirical article. As such, it did not directly insult the King. But satire can be a particularly effective form of ridicule. So it was in this case. By publishing his satire in the form of a letter to a newspaper with wide circulation in Tonga, the appellant ensured that the ridicule and the damage to reputation intended to be conveyed by the article, reached as wide an audience as possible.

In Tonga the King is the embodiment of the state. By ridiculing and damaging the reputation of the King, the appellant was ridiculing and damaging the reputation of Tonga itself. The seriousness of the offence of defaming the King or the Queen is reflected in Parliament making such an action a separate and distinct offence. Had the offending been more serious, even to a moderate degree, the appellant could well have been charged with the far more serious crime of sedition. In all of these circumstances, we are not able to conclude that a fine of $1,500 is clearly excessive.

The result

The appeals against conviction and sentence are both dismissed.

Burchett J,
Tompkins J,
Beaumont J