Rex v Simiki [2001] TOSC 53; CR 049 & 050 2001 (7 December 2001)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

NO. CR. 49-50/01

BETWEEN:

REX
Prosecution

AND:

1. 'OFA SIMIKI
2. VIKA PULINI
Accused

BEFORE THE HON CHIEF JUSTICE WARD

COUNSEL: Mr 'A. Kefu for prosecution
Mr S. Tu'utafaiva for the first accused
Mr T. Fakahua for the second accused

Date of Hearing: 27 - 30 November, 5 and 6 December 2001
Date of Ruling: 6 December 2001
Written reasons: 7 December 2001

RULING

The accused are each charged with criminal defamation, contrary to section 5 of the Defamation Act, Cap 33. The charges arise from a public meeting on 13 September 2000 at which the contents of a proposed petition to the King were read out by the second accused, Vika Pulini, on the direction of the first accused, 'Ofa Simiki. At the time they were representing a group of Tongan retail traders and were the secretary and chairman respectively.

The indictment charges that they defamed the Minister of Police and particularises three defamatory statements namely that:

"1. the Minister and a driver who was in police uniform, went in the Ministerial vehicle to collect money from a Chinese man at 2 am in the morning (sic)

2. the Minister of Police and the Immigration Division issue work visas without restriction to the Chinese, and not only that they collect a lot of money from the Chinese
3. there was a Chinese person who was issued a visa at the Minister of Police's residence, rather than at the office or during Government's working hours."
   

Trial was by jury and, at the conclusion of the evidence, I directed the jury to return a verdict of Not Guilty on the basis that the statements charged were absolutely privileged under section 9(a). I explained the position to the jury at the time but stated I would give my reasons in writing later and I now do so.

Briefly the evidence was that, as a result of concern by a number of Tongan small shopkeepers about apparently widespread undercutting of prices by Chinese shopkeepers and the suspicion that this was because of some form of dishonest dealing with various government departments, the first accused called a meeting of Tongan shopkeepers. At the first meeting an ad hoc committee was selected of which she was the chairman. Subsequently the second accused became the secretary.

The court heard evidence of more than one meeting prior to the meeting on 13 September from which the charges arose. From those various meetings the consensus was that they should petition the King about their concerns. The terms of the proposed petition were drafted in a number of meetings of a sub-committee and the suggested draft was read out to a meeting on 4 September. Various suggestions were made to amend the draft and these were considered subsequently by the sub-committee. The principal amendment appears to have been to omit reference to the Ministry of Health which had previously been named in the draft.

The first accused then put an announcement out on the radio inviting Tongan small shopkeepers and anyone else interested to attend the meting on 13 September. The evidence is that she announced the purpose of the meeting was to read out the petition.

On 13 September, more than seventy people attended the meeting. It started with a prayer and then the first accused made a few opening remarks before telling the audience that she would call on the second accused to read out the petition. She added the sensible request that, if anyone had any questions or comments, they should wait until the petition had been read out in its entirety.

The second accused then stood and read out the petition. At the end, there were various comments from the floor but no proposal that the petition should be further amended. It was then placed on a table for those who wished to sign to be able to do so.

A few days later, the petition with a number of signatures was presented to the Palace Office in what the court was advised is the normal manner of delivering petitions to the King. In fact His Majesty was out of the country at the time and the Prime Minister was Regent. Evidence was lead that it was passed to him.

Although the wording of the petition is different from that of the statements in the indictment, it is accepted by the prosecution that the words stated at the meeting were the actual words of the petition. It is also not disputed that the second accused simply read out the actual petition. The charge of defamation relates only to the 13 September meeting.

The defence does not deny those facts. The accused have pleaded not guilty with the alternative defences that the statements were privileged under sections 9 and 10 of the Act.

Those sections so far as they are relevant to this case read:

"9. No criminal or civil proceedings for defamation of character shall be maintainable in respect of any matter stated-

(a) in any petition to the King or Legislative Assembly;

(b) ..."

"10. No criminal or civil proceedings for defamation of character shall be maintainable in respect of any communication made bona fide by any person in discharge of a legal, moral or social duty or in reference to a matter in which he has an interest and the person to whom such a communication is made has an interest in hearing it unless it is proved that the person making such communication was actuated by anger, ill-will or other improper motive."

The case was tried by a jury but, in view of the provisions of section 11, I invited counsel to address me on the defence under section 9 before the case went to the jury.

Section 11 provides:

"11. (1) Whether a communication was or was not made under any of the circumstances mentioned in either section 9 or section 10 hereof shall be decided by the judge at the trial.

(2) If the judge rules that the communication was made under any of the circumstances enumerated in section 9 hereof he shall enter judgment for the defendant.

(3) If it is ruled by the judge that the communication was made under any of the circumstances mentioned in section 10 hereof then if there is no evidence that the defendant was actuated by anger, ill-will or other improper motive the judge shall direct a verdict for the defendant."

It appears to me that the terms of section 11 mean that the decision whether or not the defamatory matter is privileged under section 9 is entirely one for the judge and he must take that issue away from the jury. The question of whether it arose in the circumstances that give rise to qualified privilege under section 10 is also for the judge but, where he finds that they were made in such circumstances, he must leave it to the jury to decide whether the defendant was actuated by anger, ill-will or other improper motive including, I would assume, lack of bona fides.

The defence case in relation to section 9 is that the words charged were simply matter stated in the petition and therefore absolutely privileged. I suggested an additional possibility that, even if they were not, the wording of article 8 of the Constitution, which not only gives the right to petition but also to meet and consult concerning those matters, should extend the privilege under section 9 to protect such meetings as well.

Article 8 provides:

"All people shall be free to send letters or petitions to the King or Legislative Assembly and to meet and consult concerning matters about which they think it right to petition the King or Legislative Assembly to pass or repeal enactments provided that they meet peaceably without arms and without disorder."

The argument was, in effect, that the Constitution gives a right to petition the King and, as the Act makes the contents of such a petition privileged, the surrounding right given under the Constitution in relation to the petition should be protected similarly.

On reflection, I think I raised a bad point. Undoubtedly article 8 gives a right to petition the King and also to meet and discuss the reasons for the petition. However the inclusion of such meetings in the article is to allow them even where they are to try and seek a change of the law so long as the meeting is peaceable. The article may be a defence to a possible charge of sedition in relating to such a meeting but, if there is any defence to defamatory statements made and discussed during such meeting, it would need to be one of qualified privilege under section 10. In that case it would be a matter for the jury as to the motive and intentions of the people making the defamatory statements.

The basis of the main submission by the defence was that the statements made and charged were the actual words in the petition and that petition had been drafted on the direction of the people attending the earlier meetings. The meeting on 13 September was simply to read it out so those people who had requested it would know the contents before deciding whether or not to adopt it as their own by adding their signatures.

Mr Kefu, for the prosecution, accepted, as has been stated, that the words charged were the actual words in the petition but suggests that it only becomes a Petition to the King when it is presented at the Palace.

I accept there must be some limit to the privilege under section 9. Clearly the privilege under that section cannot be used as a defence to charges over statements made in weeks of meetings under the claim that the meetings will eventually give rise to a petition.

However, the facts of this case as demonstrated in the evidence are very limited. The earlier meetings are not relevant except by to confirm that the meeting on the 13 September was to read out a petition that had been amended from an earlier one discussed and drafted at those previous meetings.

The evidence was that the 13 September meeting was called specifically to read out the final petition. Whilst it was not attended solely by shopkeepers and the announcement had included an invitation to other people interested in the same problem, there is no evidence it included anyone other than the same general section of the community as the previous meetings at which the petition had been first mooted.

A television camera was mentioned by one witness but there is no evidence that the meeting was broadcast or subsequently reported or that the defendants had attempted to use the petition further to blacken the name of the Minister of Police or done anything with it, once the signatures had been appended, other than to deliver it to the Palace. There was no evidence even of any further meeting.

Whatever the position of the earlier meetings, I simply cannot accept that the reading of those words on 13 September was not privileged as part of the matter stated in a petition to the King. That is precisely what they were and the reading was only to inform the people who had requested it of its contents.

The right to petition the King is a right of every individual but that does not preclude a number of people deciding to present a joint petition. In the modern idiom, that has become the popular meaning of the word. If a group of people decide to petition the King and, for obvious practical reasons, delegate it one of their number to draft on their behalf, how else are they to know the contents before they sign? It would make no difference if the words are read out aloud or each possible signatory is given an individual copy - either would be a publication under the Act.

In this case, as I have stated, there was no evidence that the contents were publicised beyond the group which had requested it. Of course, some of those who heard it did not ultimately sign it but that does not mean the words were communicated to them for any reason other than to inform them of the form of the petition that it was intended to present to the King and which was so presented.

I rule therefore that the statements made by the accused on 13 September as charged are protected by section 9 and the action is therefore not maintainable. Despite the reference to entering judgment in section 11 (2), the accused are in the charge of the jury and it must be directed to return a verdict of not guilty.

NUKU'ALOFA:

CHIEF JUSTICE