Langi v Televave [2006] TOSC 27; AM 007 2005 (14 July 2006)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
DISTRICT OF HA’APAI

NO. AM.07/2005

BETWEEN:

PILIMA LANGI
Appellant

AND:

‘OLI TELEVAVE
Respondent

BEFORE THE HON MR. JUSTICE FORD

Counsel: Mr Tu’utafaiva for the appellant and Mr Kaufusi for the respondent

Date of written submissions: 6 and 23 June 2006
Date of judgment: 14 July 2006

JUDGMENT

The appeal

[1] The 46-year-old appellant was charged pursuant to a private prosecution in the Magistrates' Court in Ha'apai with criminal defamation. On 28 July 2004, after a defended hearing, she was convicted, fined $200 and ordered to pay compensation of $100 to one of the complainants and in default four months imprisonment. She was also ordered to pay the legal costs of that complainant.

[2] The appellant now appeals against both conviction and sentence. The appeal was first called during the March 2005 session in Ha'apai but the appellant was granted an adjournment until the 2006 circuit of the court in order to instruct a lawyer. As it turned out, there was insufficient time during the May 2006 session for the appeal to be heard and counsel, therefore, sensibly agreed that the appeal could be dealt with by way of written submissions. The court is obliged to counsel for their cooperation in this regard.

[3] One unsatisfactory aspect of the case on appeal is that, although the appellant filed her notice of appeal within six days of the hearing, the Magistrates' Court was unable to make available a transcript of the hearing. The reason given was that the responsible clerk in the Magistrates' Court at Ha'apai had been transferred to the Niua Government Representative Office and he was, therefore, unable to provide the necessary transcript.

[4] Section 77 of the Magistrates' Courts Act provides that whenever an appeal is lodged, the clerk in the Magistrates' Court is required, as soon as notice of the appeal has been given, to forward to the Registrar of the Supreme Court the relevant documents including "a correct transcript of all proceedings in the case in the Magistrates' Court." The excuse offered for the failure of the clerk to provide a transcript of the proceedings in the present case is totally unacceptable. In the end, the presiding magistrate made available a copy of his own record of the case and counsel agreed that the appeal could be determined on the contents of those notes. That still does not explain, however, why the clerk did not fulfil his statutory function. The procedural provisions contained in the Act are there for a purpose. Litigants and this Court are entitled to expect that they will be observed. It is important that the tardiness obvious in this case should not become commonplace.

Setting the scene

[5] In Tongan culture the action of a woman in lifting her dress in a public setting to reveal her thighs or buttocks is regarded as very bad behaviour designed to cause maximum embarrassment and offence, particularly if the onlookers include people who are in a brother and sister or first cousin (tapu) relationship.

[6] Traditionally as part of a wedding ceremony one of the customs the participants go through is that after the wedding the bride presents her "beddings" to the groom and his family. In this regard, it is commonplace to see a vehicle arriving at the groom's family home on the wedding day carrying the beddings and other items of household furniture. The vehicle will be accompanied by the bride and members of her family. Members of the groom's family will also be in attendance.

[9] If at any stage during the presentation of the beddings a female relative of the groom lifts her dress in the manner I have described and none of the other relatives of the groom intervene to dissuade her from doing so, such action can be interpreted as dissatisfaction or disgust on the part of the groom's family with the bride or contempt for her family.

[10] The behaviour is regarded as insulting and a major putdown of the bride and her family. The message is that the groom's family does not think much of her and that their young man is wasted on her. In such a situation it is not uncommon for members of the bride's family to immediately retaliate and the scene can then rapidly deteriorate into something of a free for all between the respective families. Fortunately, such occasions are relatively rare.

The incident

[11] The incident leading to the present prosecution occurred in July 2004 in the small village of Faleloa which is the northernmost village on the Island of Fua in the Ha'apai group of Islands. Relying on the learned magistrate's notes, and accepting for present purposes the evidence of both sides, it would seem that the incident in question can be summarised reasonably briefly.

[12] The 29-year-old respondent, 'Oli Televave, was walking to the local shop with her sister the other named complainant in the summons, 37-year-old Teisa Televave, and two friends, 19-year-old Vaikoloa Leha and another woman, Mafile'o Leha. It is not altogether clear from the evidence and the submissions whether the names Vaikoloa and Mafile'o refer to the same woman. That is a possibility. In all events, as the group walked by the appellant's home, the appellant called out to them and asked why they had raised their clothes when the matrimonial bed of her daughter had been taken to the house.

[13] In her evidence the respondent described the appellant as being "very angry" when she was speaking to them. The respondent then swore at the appellant and the appellant swore back at the group. She accused Vaikoloa, according to the translation, of having "a spotted arse and a rash (ring worm) thigh." Mr Kaufusi translated the offending words as meaning "shaven or clipped or hoed etc in patches, the inner side of your thigh got ring worm." Either way the words were not very pleasant. Vaikoloa admitted in cross-examination that the appellant had apologised to her for making those particular remarks.

[14] It is the words which followed on immediately from that exchange, however, which form the substance of the defamation charge. According to the respondent, the appellant then said:

"I will say only one word and you will shut up. It was your sister who gave birth to your own uncle." Teisa Televave then responded by calling out, "we will solve this in court."

[15] the summons issued on the 26 to July 2004 reads as follows:

"To Pilma Langi of Faletau

Because of the charge brought against you for what you did on the 24th of July 2004 at Faletoa you did defame contrary to section 5 Cap 33 of the Laws of Tonga 1988 Vol 1 in which you said words to the effect that 'Oli Televave and Teisa Televave have a sister who gave birth to their uncle and other words which Vaikoloa Leha and others heard. What you said is not true and defamed them and it can cause negative rumours. You are therefore hereby summoned to appear before me at the Magistrates' Court at Pangai on the 28th day of July 2004.

26.7.04

(Signed by Magistrate)"

[16] At the hearing the respondent had a lawyer acting for her. The magistrate inquired as to whether the appellant wished to have a lawyer representing her but she responded that she would defend herself. The complainants, 'Oli and Teisa, along with Vakoloa then gave very brief evidence, the gist of which is summarised above. In her evidence, the appellant told the court, "I called out to them why did they raise their clothes when the matrimonial bed of my daughter was taken to their house. I swore at them because 'Oli Televave swore at me. I said, "the uncle" and that was all that I said." In cross-examination she denied saying the words complained of but she admitted making a reference to the uncle. She was not asked to clarify or elaborate on her reference to the uncle.

[17] No other witnesses were called and it does not appear from the record that the magistrate invited either party to make submissions before he gave his decision. His failure in this regard is one of the complaints on appeal. The magistrate's decision, as recorded, read as follows:

"I believe that the prosecution have proven that there was defamation. Therefore, you are guilty of defamation that you have been charged with."

The magistrate then immediately proceeded to impose the penalty mentioned earlier.

The grounds of appeal

[18] The first ground of appeal which is the only ground of appeal against conviction, is something of a composite. It is alleged that the finding of guilt was against the weight of evidence but under this head a number of separate and quite distinct issues were raised. Thus it was submitted by the appellant that the magistrate failed to apply the correct standard of proof or to consider the essential elements of the charge such as whether the words complained of were defamatory of the complainants. Then it was submitted that the magistrate gave no opportunity for submissions before giving his decision. Mr Kaufusi did not take any issue with the way in which the grounds of appeal were presented.

[19] In his written submissions in response, Mr Kaufusi examined the evidence in detail and invited the court to reject the appellant's contentions. Neither counsel cited any authorities which is disappointing given the complexity of criminal defamation and the wealth of available authorities.

Discussion

[20] The case proceeded as a private prosecution. In many common law jurisdictions, including New Zealand, proceedings for criminal defamation have now been abolished altogether. In other jurisdictions such proceedings are able to proceed only with the prior consent of a judicial officer such as the Attorney General. In England and Wales oral defamation (slander) is not a crime but written defamation (libel) is a common law misdemeanour. No criminal prosecution can be commenced in respect of a publication in a newspaper, however, without leave of a judge. The learned authors of Gatley on libel and slander 10th edition (2004) at para 22.1, note that the primary reason for excluding defamatory spoken words (slander) from criminal defamation proceedings lies in the "difficulties of proving in relation to words spoken in the heat of the moment exactly what was said and with what intent."

[21] Commenting on the English situation where leave from a judge is required, Halsbury Vol 28 p 280 states:

"Leave will only be granted where there is a prima facie case, where the libel is so serious that the criminal law ought to be invoked and where the public interest requires the institution of criminal proceedings."

On the same subject, Gatley (para 22.14) notes that judges are increasingly reluctant to grant leave to potential prosecutors and the learned authors observe that since 1940 the number of criminal libel trials in England has "fallen sharply".

The rationale of criminal defamation

[22] In recent years several private prosecutions for criminal defamation have come before this Court on appeal. Although it is not strictly relevant to the case before me, it may be an appropriate opportunity to try and give some broad guidance on the complex subject.

[23] Referring to criminal defamation proceedings in general, Halsbury Vol 28 p 5 states:

"An indictment will lie (1) where the libel tends to provoke the person defamed to commit a breach of the peace; or (2) where it is in the public interest that criminal proceedings should be brought."

[24] Gatley at para.22.5 refers to the historical rationale of criminal libel as being the concern with the maintenance of social order and keeping the peace and notes that the survival of the crime of libel into contemporary times may be questioned. In Gleaves v Deakin [1980] AC 477 the House of Lords confirmed that it no longer need be shown that a criminal libel is likely to disturb the peace of the community or to provoke a breach of the peace but their Lordships appeared to be divided over whether a criminal libel must involve the public interest.

[25] Lord Edmund Davies (p 491) adopted part of a passage from the direction of Lord Coleridge C.J. in Reg v Deverell 86 LTJo 300 which confirmed that:

"there ought to be something of a public nature about [the defamatory remarks] to justify the interference of the Crown and when "it was clearly an individual squabble between two people it was well settled law that it ought not to be, and was not, in point of law, a proper subject of indictment."

His Lordship said that the necessity of the wrong to be of a public nature is emphasised by the requirement in the Act that if truth is to be pleaded, it must also be asserted that publication was for the public benefit. The same requirement exists in section 7 of the (Tonga) Defamation Act (Cap 33) which reads:

"7. In criminal proceedings for defamation of character, proof of the truth of the matter charged shall not entitle the defendant to be acquitted unless it is also proved that the publication of the matter charged was for the public benefit."

Viscount Dilhorne took a different view from that of Lord Edmund Davies. He said, p.486, that he did not think it was right to say that a libel to be criminal must involve the public interest.

[26] It seems to me, with respect, that the approach suggested by Lord Edmund Davies is persuasive and more in keeping with the apparent objective of the Defamation Act. It is difficult to see how any sensible meaning can be given to the defence provided for in section 7 of the Act unless public interest is recognised as a relevant element in a criminal defamation prosecution. At common law, it is a complete defence to a defamation action to show that the words complained of are true. If public interest is not to be an ingredient of criminal defamation then surely, as with civil defamation at common law, it should be an absolute defence to any criminal charge if the person who uttered or published the defamatory words can simply establish that they are true. That is clearly not the position, however. Section 7 provides that in order to establish a defence of truth in criminal defamation not only must a defendant prove that the statement was true but he or she must also establish that the publication was for the public benefit. Expressed in a rhetorical sense the question a defendant might want to ask is, if public interest is not an essential element in all criminal defamation cases, why would the legislature not have restricted the application of the public benefit requirement in section 7 to those cases only where public interest is, in fact, an ingredient?

[27] Quite apart from the public interest element, the authorities do seem to be in agreement that the defamatory words in criminal defamation must be serious, not trivial -- see Archbold (2003) para.29.33. In Gleaves p.495, Lord Scarman said:

"The logic of the law was finally exposed by du Parcq J. in Rex v Wicks [1936] 1 All ER 384. In giving the judgment of the court, he said at p.386 that a prosecution ought not to be instituted "when the libel complained of is of so trivial a character as to be unlikely either to disturb the peace of the community or seriously to affect the reputation of the person defamed." It is plain from the passage in the judgment where these words appear that the learned judge was emphasising that it is the gravity of the libel which matters. The libel must be more than of a trivial character. In my judgment, the references in the case law to reputation, outrage, cruelty or tendency to disturb the peace are no more than illustrations of the various factors which either alone or in combination contribute to the gravity of the libel. The essential feature of a criminal libel remains -- as in the past -- the publication of a grave, not trivial, libel."

[28] The decision whether or not to issue a summons is a judicial decision, not an administrative one. Commenting on the position in England which is not dissimilar, Lord Widgery C.J. stated in West London Metropolitan Stipendiary Magistrate ex parte Klahn [1979] 1 WLR 933:

"The duty of a magistrate in considering an application for the issue of a summons is to exercise a judicial discretion in deciding whether or not to issue a summons. As Lord Goddard C.J. stated in Rex v Wilson [1948] 1 KB pp 46-47:

"A summons is a result of a judicial act. It is the outcome of a complaint which has been made to a magistrate and upon which he must bring his judicial mind to bear and decide whether or not on the material before him he is justified in issuing a summons." "

Lord Widgery went on to state that as the matter was properly within the magistrate's discretion it would be inappropriate to attempt to lay down an exhaustive catalogue of matters to which consideration should be given but he did say that, "it is clear that he may and indeed should consider whether the allegation is vexatious". In other words, the magistrate should give consideration to whether the complainant is simply attempting to harass the defendant by means of malicious or trivial litigation.

[29] Although it is not in general the duty of a magistrate to enter upon a preliminary survey of the evidence when called upon to sign a summons, he is required, in the exercise of his discretion, to be satisfied on the complaint before him that the issuance of the summons is justified and that the summons itself identifies a criminal offence. Until such time as the issues I have touched upon relating to criminal defamation are fully argued and determined in this Court or the Court of Appeal, a magistrate called upon to sign a summons in a criminal defamation case should first satisfy himself, especially in the case of a private prosecution, that it is in the public interest that the prosecution should be allowed to proceed and that the publication complained of constitutes a grave, as distinct from a trivial, defamation of the complainant. If the principles referred to above are correctly applied, it will be found that the occasions when it is appropriate to allow a private prosecution for criminal defamation to proceed will be rare and exceptional.

The instant appeal

[30] Before turning to the specific grounds of appeal before me, there are two general observations I wish to make about the present case which were not canvassed in counsels' submissions. The first matter relates to the summons itself. As was stated by Ward C.J. in Dhayananadan v Police [1999] TOSC 15:

"It is well established that a charge of defamation must specify the defamatory words. It is usual to quote them in direct speech but in this case the magistrate was right, if he considered the point, to accept the principal defamatory words were set out clearly enough to allow the defendant to know the case alleged against him."

The charge in that case read that the appellant, "defamed a man, namely Lilo Finau, when you told 'Emosi Fanagatua and some others that the cut of your dog was because Lilo Finau hit the dog with the bush knife and also other defamation."

The Chief Justice held that, "the last words in the summons were totally defective and should have been struck out." Likewise, the reference to "and other words" in the summons in the present case were defective and should have been struck out by the magistrate.

[31] The second general observation relates to the brevity of the decision under appeal. The two sentence decision is totally inadequate for dealing with the complex issues involved in a criminal defamation case. There is nothing in the record of appeal before me to indicate that the decision comprised of anything other than the two sentences quoted above and counsel did not suggest otherwise. Although there is no general rule of law which requires reasons for a decision to be given and the absence of reasons does not nullify a decision, the case for giving reasons is overwhelming.

[32] In the leading New Zealand authority on the giving of reasons, R v Awatere [1982] NZCA 91; [1982] 1 NZLR 644, 649, the Court of Appeal said:

"Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion. Indeed failure to follow that normal judicial practice might well jeopardise the decision on appeal. It could do so because of potential appellant might seem to be unduly prejudiced or it could do so by leaving it open for the appellate court to infer that there are in fact no adequate reasons to support it."

The first point on appeal -- burden of proof

[33] Mr Tu'utafaiva referred to the first sentence of the magistrate's decision, "All right I believe the prosecution has been able to prove that there was defamation" and submitted: "With respect it is difficult to understand the standard of proof applied. It is further submitted that the learned magistrate erred in law when he used his belief as the basis of his decision and not the required standard of proof beyond reasonable doubt." Mr Kaufusi did not respond specifically to this ground of appeal.

[34] As Ward C.J. stated in the Dhayananadan case, "defamation is a highly technical offence and the magistrate must be satisfied to the criminal standard of proof beyond reasonable doubt." Given that a defamation claim can proceed either as a criminal prosecution or civil action it is critical that a magistrate should apply the correct standard of proof. In the present case the magistrate made no reference in his decision to the fact that the burden of proof was on the complainants to prove their case to the criminal standard of beyond reasonable doubt. His statement that he believed that the prosecution had proved the defamation tells one nothing about the standard of proof that he had in mind and it leaves the issue in doubt. As with any criminal case, once a reasonable doubt has been established then the accused is entitled to the benefit of such doubt. This point alone is sufficient to dispose of the appeal but I will briefly deal also with the second point raised by Mr Tu'utafaiva.

The second point on appeal -- person defamed

[35] Mr Tu'utafaiva submitted that the magistrate failed to make any finding on the crucial element of whether the words complained of were published of the complainants. Counsel submitted that even accepting that the words complained of were uttered by the appellant (and he stressed that the magistrate made no specific finding on this point) if the words "were defamatory of anyone it was the sister of the complainants and their uncle but not the complainants themselves."

[36] Mr Kaufusi in his submissions referred to there being only one complainant, namely 'Oli Televave, and he submitted that, "the implication of the words complained of will stir up public hatred and cause considerable public distrust against the complainant, the complainant cannot be trusted, a dishonest person. She is a crook." The magistrate obviously shared Mr Kaufusi's view that there was only one complainant. He spoke in his decision about "the complainant" (singular) and when it came to sentencing he awarded compensation of $100 to 'Oli Televave only. Clearly, however, the summons identifies both 'Oli Televave and her sister Teisa Televave as the joint complainants.

[37] Whether the words were capable of reflecting upon the complainants was indeed, as Mr Tu'utafaiva submitted, an essential element of the prosecution case and it had to be proved not simply on the balance of probabilities but to the criminal standard of beyond reasonable doubt. Gatley at para 71 states:

"It is an essential element of the cause of action for defamation that the words complained of should be published of the claimant. There is no cause of action, for instance, if words are defamatory of the claimant's relatives, unless they reflect on the claimants" (emphasis added).

In the present case there was simply no finding at all on this crucial aspect of the case and Mr Tu'utafaiva's submission must be correct. Again, therefore, I uphold the appeal on this ground also.

Decision

[38] I uphold the first two points on appeal and find it unnecessary to have to deal with the other issues raised. The appeal is, therefore, allowed and the conviction and sentence quashed.

NUKU'ALOFA: 14 JULY 2006

JUDGE