R v Pohiva [2008] TOLawRp 51; [2008] Tonga LR 260 (26 September 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 376/2007

R

v

Pohiva

Shuster J
26 September 2008

Defamation – publication in newspaper – test is what would ordinary, reasonable-minded person think – defendant convicted

Initially, the accused was charged with two counts of sedition but subsequently an amended indictment was filed under which he was charged with a single count of defamation of the Sovereign contrary to section 3 of the Defamation Act (Cap 33). He pleaded not guilty and elected to defend himself. The particulars alleged that on 6 December 2006 the accused published in the Kele'a newspaper the following words:

"YOU TUPOU V -- AND THE PRIME MINISTER ARE THE ONLY ONES WHO ARE MINDLESS

When I saw and read what the King had said I thought what an idiot Tupou V is. What idiocy is thicker? The one that did the burning or those that caused the people's anger causing them to do the burning. After almost years of asking for our hereditary right to freedom, but Tupou V's government is still resisting and strangling us . . . I am asking you, Tupou V to stop saying stupid words because you 20 stayed there in Tonga but the New Zealand Government used our taxes to fly your father to Tonga. In that case I am telling you to speak and think about what you say - because your stupid words -- will dig up the dead, stop saying stupid words."

The Crown alleged that the published words damaged the reputation, character and good standing of His Majesty King George Tupou V and were capable of exposing His Majesty to ridicule. The defendant inferred that he was out of the country on 6 December 2006 but he admitted having read the article sometime that month. He submitted that the prosecution had failed to prove its case and he asked for an acquittal.

Held:

1. The test to be applied was an objective test meaning what would any ordinary reasonable minded member of the public think concerning the published words.

2. The words published were capable of having a meaning which would damage the reputation or expose to hatred, contempt or ridicule or cause to be shunned both his Majesty the King and the Prime Minister of the Kingdom of Tonga. The defendant was convicted accordingly.

Case considered:

R v Fa'aoso [1996] TOSC 4

Statute considered: 40

Defamation Act (Cap 33)

Counsel for the Crown : Mr Little
The defendant appeared in person

Judgment

The Defendant

The Defendant was charged on an Indictment filed 10 March 2008; he was arraigned on 12th March2008 before Justice Andrew, he pleaded not guilty to two counts of sedition in that indictment-as is his legal right. On 20th August 2008 the Crown prepared and filed an Amended Indictment which contained a single count of- Defamation of the Sovereign. The amended indictment was formally put and the defendant was re-arraigned on 15th September 2008-the date of trial. The defendant pleaded not guilty to the charge and indicated he did not wish to be represented by Counsel- electing to represent himself. The substantive hearing took place on Monday 15th September 2008

The charge against the defendant

• Count One

DEFAMATION OF SOVEREIGN contrary to section 3 of the Defamation Act (Cap 33)

• Particulars of which are: - on or about the 6th December 2006 you defamed the character of His Majesty King George Tupou V by publishing the following words in Volume 21 Number 49 of Kele'a

YOU TUPOU V - AND THE PRIME MINISTER ARE THE ONLY ONE'S WHO ARE MINDLESS

When I saw and read what the King had said I thought what an idiot Tupou V is. What idiocy is thicker? The one that did the burning or those that caused the people's anger causing them to do the burning. After almost twenty years of asking for our hereditary right to freedom, but Tupou V's Government is still resisting and strangling us ... I am asking you, Tupou V to stop saying stupid words because you stayed there in Tonga but the New Zealand Government used our taxes to fly your father to Tonga. In that case I am telling you to speak and think about what you say-because your stupid words-will dig up the dead, stop saying stupid words.

The prosecution's case

The Crown says- the indictment relates to a charge of defamation of the sovereign a charge laid in relation to an article which was published in a letter to the editor-published in the Kele'a- newspaper on 6th December 2006. The Crown says the defendant was arrested and interviewed by police and that he admitted in a police VCS he was the publisher of the Kele'a-newspaper-on the 6th December 2006. The Crown says the terms of the letter of defamation-are set out fully in the amended indictment - the Crown says-the words published in the newspaper clearly establish the offence of defamation of the Sovereign. The Crown says the words published on 6th December 2006 damaged the reputation, character and good standing of His Majesty King George Tupou V-the King of Tonga and were/are (words) capable of exposing His Majesty to ridicule.

Elements of defamation

Defamation of character consists of-

(1) In speaking or in writing, printing or otherwise putting into visible form; any matter

(2) Damaging the reputation of- or-

(3) Exposing another to hatred, contempt, or ridicule -or

(4) Causing him-her to be shunned.

Further: - Every person who shall defame the character of the King-or any member of the Royal Family shall on conviction thereof be liable to a fine not exceeding $2000-and in default of payment to imprisonment for any term not exceeding two years.

Publisher and publishing

The ordinary dictionary meaning of the words- publisher and publishing-

Is defined by the Oxford English Dictionary as follows-

• The process- of the production of and

• The dissemination of literature or information

• It is the activity of making information available for public view

The burden and standard of proof

Certification: As this was a trial before a Judge alone; I certify I directed myself in accordance with the Law on the Burden and Standard of Proof in a criminal case. I have also directed myself of the need to consider the evidence in respect of each charge and for the defendant separately. Where appropriate I have given the Accused the benefit of any doubt. The prosecution brings this case; they must prove the case beyond any reasonable doubt so that I am sure the defendant committed the offence.

The defendant does not have to prove anything; because he is innocent until he is proven guilty.

Voluntary caution statement

I am also required to consider a defendants voluntary caution statement[s] also his charge/confession statement as to whether they are voluntary or not, in the true sense of the word.

• I find as a fact upon hearing all the evidence; the VCS Exhibit 1, is voluntary in the true sense of the word;

• As is the charge statement Exhibit 2 and

• The Confession statement Exhibit 3.

• These documents were never challenged by the defendant himself.

In R v Fa'aoso [1996] TOSC 4- it was held,

• "A confession alone can be sufficient to justify a conviction where the judge [or the jury] is satisfied that the confession-is reliable and cogent evidence.

Evidence

The defendant accepts he was interviewed by the police under caution on the 26th March 2007 at the CID office. He did not challenge the admissibility of documents produced / tendered during the trial. He accepted he was cautioned and also agreed he told the police at the time of his interview he suffered from high blood pressure. He did not complain of ill treatment at the hands of the police officers who conducted his interview. In his VCS the defendant was asked for his occupation he replied, "I am the publisher for the Newspaper Kele'a-and he was also an agent for the Tonga Human Rights and Democratic movement." The defendant accepted- on the date of interview with police 26th March 2007 he had been the publisher of the Kele'a-newspaper for three years.

The defendant was asked in his VCS if he recalled the article [or item] published by Sitaleki Tupou on 6th December 2006- he said yes. He agreed when he looked at a copy of police summons [no. 804-07] that the words-were the statement published in vol. 21 No.49 of- the Kele'a. The defendant went on to explain the staff of the newspaper-the reporters- obtained these details. The defendant told the police the newspaper was published in New Zealand. He denied having any responsibility for editing information given -or-editing information which was to be published. The defendant claimed he relied on the newspaper's editor to edit all that sort of information. He accepted - the first he knew about what appeared in summons 804-07-was (1) when he came back from the United States-and that was in February 2007 and (2) when he read the letter in the Kele'a Newspaper-in December.

The defendant told the police he believed the statement made- to be fair- he explained further that was because it was Setaleki Tupou's perspective-and the grounds for his statement [Setaleki] are-what had happened in the past. The police put to the defendant (in the VCS) their view- that the statement made which the defendant had published- incites hatred towards the King and the Government, from members of the public-the defendant replied he had no answer to that answering other questions asked by the police officers during the course of the interview-the defendant also replied-he had no answer to that.

Defendant's closing address

The defendant chose not to give evidence- on oath; or to call witnesses in his defence-as is his legal right. He elected to give a submission from the floor of the court- a submission which I have recorded in full. The defendant proposed there was no case to answer, the evidence he said revealed no case- he referred to the first prosecution witness who said- he did not like reading the newspaper-and-that he did not in fact read the article. The second prosecution witness said under oath he did not want to take note of the article-in other words he said it was not clear what he read. What was clear-was-that was the only time the witness read the article- he said well it did not sound really good to him. The defendant submitted then there was the third witness, it did not defame anyone, and he said nothing about it. A question was posed as to whether he defamed the King-and after reading the article he said no. The defendant said it was reflected from that witness's evidence that person has some knowledge of rights granted by the Constitution. The defendant said witness number four stated very strongly-he was disappointed by the article, he said the article reflected on the Kings reputation. He said the King was like a father- to him-by the note he was still loyal to the King. The defendant said he came to his conclusion it was the source rather than the character of the King.

Inferences and speculation

A court is not entitled to speculate, but it may draw inferences. There may be strong circumstantial evidence in which a court may say, when taken together will lead to the sure conclusion it was the defendant who committed the crimes. Circumstantial evidence can be powerful evidence, but it is equally important to examine it with care and to consider whether the evidence upon which the prosecution relies in proof of its case is reliable and if it does prove guilt; or, are there any other circumstances which are, or may be of sufficient reliability and strength to weaken or destroy the prosecution's case. Finally a court should be careful to distinguish between arriving at conclusions based upon reliable circumstantial evidence and mere speculation. Speculation in a case amounts to no more than guessing; or making up theories without good evidence to support them, neither the prosecution, the defence nor should I do that.

Analysis

In this case the defendant submits the prosecution has failed to prove its case and asked me to acquit him of the charge shown in the indictment. I do not intend to rehearse the prosecution evidence in detail or the prosecutions closing, speech because, in a case such as this, it is a question of whom do I believe, on the evidence-including relevant documentary evidence before me. This was a short trial with relatively few issues. It is the evidence given in open court on oath -together with all available documentary evidence which is properly admitted- or-tendered by consent-which goes to prove whether or not I find the guilt or innocence of the accused.

Accordingly:-

There is dispute- a letter was written to the editor of the defendant's newspaper or that it was published on 6th December 2007. The defendant infers he was out of the country on the 6th December 2006 but he admitted to reading the article in December 2006.

The test to be applied in this particular case is an objective test-meaning what would any ordinary reasonable minded member of the public think concerning these published words.

YOU TUPOU V-AND THE PRIME MINISTER ARE THE ONLY ONE'S WHO ARE MINDLESS

When I saw and read what the King had said I thought what an idiot Tupou V is. What idiocy is thicker? The one that did the burning or those that caused the people's anger causing them to do the burning. After almost twenty years of asking for our hereditary right to freedom, but Tupou V's Government is still resisting and strangling us ... I am asking you, Tupou V to stop saying stupid words because you stayed there in Tonga but the New Zealand Government used our taxes to fly your father to Tonga. In that case I am telling you to speak and think about what you say-because your stupid words-will dig up the dead, stop saying stupid words..

I have carefully considered the text of the words published in vol. 21 No.49 of- the Kele'a newspaper and I find as a fact that the words used and published were capable of having a meaning which ... would.

In speaking or in writing, printing or otherwise putting into visible form; any matter damaging the reputation of- or-exposing another to hatred, contempt, or ridicule or causing him-her to be shunned-both towards HM the King and the Prime Minister of the Kingdom of Tonga.

I convict the defendant on the charge of defamation of the Sovereign. In my view the prosecution has proved its case beyond reasonable doubt so that I am sure the defendant is guilty, and- I find as a fact the defendant as a publisher published the said material- thus he is guilty as charged.