Saulala v Rex [2004] TOCA 10; CA 15 2003 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY

AC. NO. 15/2003

BETWEEN:

1. SANGSTER SAULALA
2. SEMISI KAILAHI
3. OCEANIA BROADCASTING NETWORK
Appellants

AND:

REX
Respondent

Coram: Burchett J
Tompkins J
Salmon J

Counsel: Mr Edwards for appellants
Mr Kefu for respondent

Date of Hearing: 28 July 2004
Date of Judgment: 30 July 2004

JUDGMENT OF THE COURT

[1] The appellants were found guilty after trial before a jury of criminal defamation. They appealed against that verdict. There was no appeal against the sentence later imposed upon them. When the matter came on for hearing before us Mr. Edwards, counsel for the appellants, abandoned the appeal in respect of the 2^nd and 3^rd named appellants. Accordingly the Court dismissed the appeals by those parties and awarded costs to the respondent. This judgment is concerned only with the appeal by Sangster Saulala.

Background facts

[2] The complainant in these proceedings was the former Attorney General and Minister of Justice Tevita Tupou. In February of 2001, the second appellant was interviewed by the first appellant on a television programme broadcast by the third appellant. The earlier part of the programme criticized the activities of a Mr Pohiva and the Democracy Movement. The first appellant then moved the discussion to Mr Tupou and an incident about one year prior to the interview when he lost his office keys. These were later returned by Mr Pohiva. The portion of the interview relied upon as containing the defamatory comments was set out in full in the indictment. It is only the introductory portion of the indictment under the heading “Particulars of the Offence” which is the subject of the appeal. It reads:

“Sangster Saulala of Tofoa on or about 20 of February 2001 at Nuku’alofa, you did together with Semisi Kailahi, defame the character of Tevita Tupou, the former Attorney General and Minister of Justice when you broadcast the television programe “Check it Out” on Oceania Broadcasting Network Television, where together with Semisi Kailahi you stated as follows: ..”

[3] The indictments against the other appellants were worded similarly with, in each case, the particular appellant named first. The trial Judge summed up to the jury in a careful and helpful manner. He used a flow chart to assist the jury and to identify the elements of the offence and the various defences raised, with guidance as to the circumstances in which a guilty or not guilty verdict would be appropriate.

[4] The jury returned a verdict of guilty against each appellant. Each of the first and second named appellants was fined $500.00 and the third named appellant was fined $750.00.

The appeal

[5] The notice of appeal contains the following grounds:

1. The verdict handed by the jury was perverse whereby no jury of reasonable men, properly directed, could have found defamation by the first appellant.
   
2. The learned trial Judge erred in respect of the “no case to answer” submission made before the trial Judge by leaving to the jury a question which was for the Judge alone.
   
3. The verdict handed down by the jury was procured by the prosecution due to an irregularity arising from the closing speech of Crown Counsel causing a substantial wrong or miscarriage.
   

The 3^rd ground was not pursued in submissions. These grounds will be addressed in order.

Ground one

[6] Counsel for the appellant claims that the Crown Prosecutor conceded that there was no defamation by the first appellant and therefore no reasonable jury could have found a guilty verdict against the first appellant.

[7] The Crown Prosecutor claims that he made no such concession. In fact his concession was that the words actually spoken by the first appellant were not defamatory. However, the prosecution was put on the basis that this was a joint enterprise and that the first appellant effectively adopted and encouraged the use of the words by the second appellant and was thus responsible for the offence. It is clear from the Judge’s summing up that this in fact is the way it was put. At page four of the summing up the following passage appears.

“The Crown also invites you to conclude that Sangster Saulala is as equally responsible for the words published by Semisi Kailahi as he would have been had he actually spoken them himself. The Crown argues Sangster Saulala was manager of the television station and the host of the programme and that he, as it were, set Semisi Kailahi up to say the allegedly defamatory things he did say about Tevita Tupou and then he allowed the statements to be broadcast. ... so the Crown invite you to conclude that they did it together and Saulala is just as responsible as Kailahi for what was said”.

Ground two

[8] This ground alleges that there was a serious defect on the face of the indictment. The indictment is claimed to be defective as a result of the concession claimed to have been made by the Crown. It is further claimed that the Judge should have held in favour of the appellant on a “no case to answer” application. Upon analysis this ground really raises the same point as the first, that is to say the issue is whether the indictment is appropriately worded to include the first appellant as a party to a joint enterprise. In this respect the Judge in his summing up gave a direction to the jury which should in fact have been the subject of a ruling by him. This is because it raised a legal issue. This passage may also be found at page four of the summing up and follows a question raised by the Judge as to whose show the programme really was. The Judge said:

“Counsel did not address you on this point specifically but when you look at the indictment, you might like to ask yourselves does it, as the prosecutor contends, make it clear that the Crown is alleging that Sangster Saulala is liable for the words spoken by Kailahi. If you do not think that it does then you should reject Crown Counsel’s invitation to make Saulala responsible for anything that Kailahi said. This is a criminal prosecution and it is up to the Crown to word their indictment in such a way that an accused person knows exactly all the allegations that are being made against him. If there is any doubt in your mind arising from the wording of the indictment then you have to give the benefit of that doubt to the accused”.

[9] As noted above it is a responsibility of the Judge to determine whether or not the indictment discloses the existence of an offence by the person to whom it is directed. In the above quoted passage the Judge asks the jury to determine that question. He should not have done so. The question as to whether the indictment discloses the existence of an offence against the appellant is a question of law. As such it was for the Judge to determine. This issue is now the central question for determination in this Appeal.

[10] For the Crown, Mr. Kefu submits that the first appellant was involved in the defamation through his actions before, during and even after the broadcast. He submits that the broadcast was a joint enterprise so that the words used by Mr. Kailahi were in effect also used by Mr. Saulala.

[11] It is important to note that the Crown did not charge Mr. Saulala as a party to Mr. Kailahi’s offence. Rather Mr. Saulala was charged along with Mr. Kailahi as a principal offender. However the indictment does not make it clear that the Crown is alleging that Mr. Saulala is liable for Mr. Kailahi’s words.

[12] The way in which the indictment is worded can only lead to the conclusion that Mr. Saulala is being charged in respect of the words that he used. The Crown’s concession absolves Mr. Saulala from any direct liability for those words. In the context of this case defamation arises from the utterance of words which have the defamatory meanings complained of. Where, as in this case, the words relied on to establish the offence were not uttered by the person charged, it is, in our view, essential that the indictment make it clear that that person is responsible or jointly responsible for the words of the person who actually spoke them. This is particularly the case where, as here, both people have spoken.

[13] These are criminal proceedings. An accused is entitled to be tried on an indictment that clearly discloses the nature of the crime alleged against him. In our view this indictment fails to do that and the appeal must succeed on that ground.

Ground three

[14] This ground was not addressed in submissions and it is only necessary to refer to it briefly. The ground relies upon a statement in the closing speech of Crown Counsel and in effect claims that the Crown Counsel put the matter to the jury on an incorrect legal basis in his closing address. That cannot provide a ground of appeal. It is the Judge’s responsibility to direct the jury on matters of law. The summing up made it clear that the jury was bound to accept and act upon the directions of law given by him.

Result

[15] Because of the inadequacy of the indictment the appeal is allowed. The conviction is quashed. The appellant is entitled to costs to be fixed if necessary by the Registrar.

Burchett J
Tompkins J
Salmon J