Malifa v Sapolu [1998] WSCA 5; 06 1997 (6 March 1998)

IN THE COURT OF APPEAL OF SAMOA

HELD AT APIA
(C.A. 6/97.)

BETWEEN:

SAVEA SANO MALIFA of Vaitele
and FUIMAONO FERETI TUPUA of Alafua
Appellants

AND:

KATALAINA MAKA SAPOLU
of Afiamalu, Barrister and Solicitor
First Respondent

AND:

TOFILAU ETI ALESANA
of Leufisa, Prime Minister
Second Respondent

Coram: The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Hon. Sir Ian Barke

Hearing: 5 March 1998
Judgment: 6 March 1998

Counsel: L.L. Stevens Q.C. and H.J. Schuster for Appellants;
M.S. Jacobs Q.C. and S. Jacobs for Respondents

JUDGMENT OF THE COURT ON QUESTION REMOVED.
DELIVERED BY LORD COOKE OF THORNDON

On 6 June 1997 Katalaina Maka Sapolu of Afiamalu, Barrister and Solicitor, laid an information in the Magistrate's Court against Savea Sano Malifa of Vaitele, Publisher of Samoa Observer, and Fuimaono Fereiti Tupua of Alafua, Samoan Editor of Samoa Observer, charging that at Apia on 6 June 1997 they published or caused to be published a defamatory libel in the Friday edition of the Samoa Observer in the form of a letter to the editor written in the Samoan language by Misatauveve Joe Hollywood, 'which contained the following defamatory matters of and concerning Tofilau Eti Alesana of Leufisa, Prime Minister'. These matters were set out in attached sheets. They comprised five passages in the Samoan language, to each of which an English translation was appended, as follows -

1. Ona auina mai ai lea mo a'u se ua onomea i ana lava teuga ma tautala mai. Ona a'u fesili atu ai lea i le alii poo ai ea ia, a o fea fo'i le tocaina, ua seasea lava ono toe vaaia i le Televise Samoa pe faafofogaina fo'i lona tagivale i le Leitio 2AP, aemaise ai lona ata i lana nusipepa o le Savali. . .

Translation

"... Then it was sent for me one who was becoming in his attire and spoke to me. Then I asked the gentleman, who is he, whereabouts is the old man, who is hardly seen now on Televise Samoa or his crying heard on Radio 2AP especially his photo in his newspaper, the Savali.

2. Ua a'u nofo tata a'e lea ma a'u. tautala to'atasi ai lava, "Aisea na fia Palemia ai, ae ua le faa-Palemia lona 'ai'aiuli lea ua tofia e avea ma fofoga o le Malo?'' Ona a'u saga ata faamaela to'atasi ai lava lea, aua ua atagia mai ia matua le mautonu nei lava ma gapelu si alii, ua faasolo ina gase lona pa'u i faiga a le nusipepa lenei o le Samoa Observer. Ona au fai atu ai lava lea, ["Go Samoa Observer! Go Samoa Observer! Hit him! Hit him! Hit Him hard he'll soon crumble to pieces."]

Translation

I then sat upright and continued to talk to, myself. 'Why did he want to be Prime Minister, instead of making Prime Minister his supporter who is now spokesman for the government?" Then I sneeringly laughed all by myself, because it seems he is now shaken and debilitated, his skin is beginning to tire out by the actions of this newspaper, Samoa Observer. And then I said ["Go Samoa Observer! Go Samoa Observer! Hit him! Hit him! Hit Him hard he'll soon crumble to pieces."]

3. Peita'i, na pei o le pa mai a se faititili le ta'alili, pau mai o le siufofoga o Tulisapelu le Tupu Tamaitai o Seoli, ma a'u iloa atu fo'i le tiapolo, o tau faapili mai I ona tua ma faapea mai, "Faauta! Sauni! Nofo sauni nei loa ua le o toe mamao ni ona aso i le foga'ele'ele, ona matou faatasi a! lea iinei, aua o lena ua saga valevale matua lava ia, ma ua toeitiiti lava ona maliu faafuase'I lea ua so'a e le namu ... ia po o le lago fo'i . . .

Translation

However, like the rumble of thunder, the roaring voice of Tulisapelu ("armed with machete") the queen of Hell spoke, and I could see the devil taunting from behind her saying, Behold! BePrepared! Be prepared now as he does not have many more days on earth before we will be together over here, because he is extremely senile now, and very soon he will die suddenly from being hit by a mosquito or a fly.

4. Ona a'u iloa atu fo'i lea o le tiapolo o suigia'i solo mai i lala ku'ava o le faato'aga i Etena, ma faaetoeto taufaalili mai lona laulaufaiva c peisea'i o fai mai, "0 ia lava lenei e le gata ina oti le agaga, oti le tino, ao le a faapena fo'i ona oti atu ai ma le oga'ele'ele a ta'oto ai Iona tino, o le a matua faamalaiaina e le toe ola, ai lava se tapa'a Samoa.

Translation

Then I saw the devil swinging on the branches of the guava tree in the garden of Eden, tauntingly poking out his tongue as if saying, "He is the one who is not only dead in the soul, dead in the body, but likewise he will die from the earth where his body will lie, it will be severely accursed, and will no longer cultivate a Samoan tobacco.

5. Fai mai le meaola, "Afai o ia lava lenei e vaaia fel'uaiga ma va'alele Savili, o loo i ai nei lava mo ia se, galuega faapitoa i la'u nei Malo, na te pulea ai le tufatufaina atu o pea 'apa'au mo agelu o Seoli ae le o le Lagi".

Translation

The (living) thing said, "If this is the one who looks after transport and civilian airline; there is a special job right now for him in my Kingdom, he will be in charge of the handing out of pairs of wings for angels of Hell and not of Heaven."

The informant wishes to have certain amendments made to the English translations of the first, fourth and fifth passages. The proposed amendments were specified to us and it was made clear by counsel, Mr Jacobs Q.C., that they are the only amendments sought. Mr Stevens Q.C. intimated after consideration that the defendants do not object to these amendments.

The proposed amendments are to insert in the English translation of the first passage annexed to the information after the word 'crying', the words 'with the readiness of a child'; to replace in the English translation of the fourth passage the words beginning ' but . . .' with the words 'likewise the earth where his body will lie will be infertile, it will be severely accursed, and will no longer cultivate a Samoan tobacco'; and to substitute in the English translation of the fifth passage for the word 'airlines' the word 'aviation'. In the absence of objection, we will proceed on the basis that these amendments will be made. In any event they are changes in detailed wording which do not, in our view, significantly affect the seriousness or otherwise of the passages complained of. It is appropriate, however, that any leave to amend be by the court of trial which is likely to be the Supreme Court as hereinafter explained. We leave the matter to that court accordingly. We add, to avoid any misunderstanding, that the English translations, as so proposed to be amended, remain simply allegations by the informant as to what the Samoan passages mean.

The defendants have made various pre-trial applications to the Supreme Court and the Magistrates' Court. Some of these, including an application for removal of the trial to the Supreme Court, remain to be determined. But counsel on both sides accepted before us that, if a trial is to proceed, it is appropriate that it should be before the Supreme Court. Subject to any appeal to this Court, the Supreme Court will then have full control of this important case. An-order pursuant to section 30 of the Criminal Procedure Act 1972 for the transfer of the information to the Supreme Court may therefore be appropriate. Again, however, we leave the making of any such order to a Judge of the Supreme Court.

An application for the stay of the Magistrates' Court proceedings pending the determination of applications that have been made in the Supreme Court was granted by the Chief Justice on 17 November 1997. On the same occasion he dismissed an application by the defendants for removal of the pre-trial proceedings involving constitutional questions from the Supreme Court to the Court of Appeal. His reasons were delivered on 24 February 1998. It is from that refusal to order removal to the Court- of Appeal that the present sent appeal is brought.

The present appeal is brought by leave of the Chief Justice. Nevertheless Mr Jacobs argued before us that this Court has no jurisdiction to entertain the appeal. He accepted that constitutional issues are involved and were 'on the table' before the Chief Justice, but he contended that, until the Supreme Court had 'spoken' on these, there is no available provision for appeal to the Court of Appeal.

We do not accept that this Court lacks the necessary jurisdiction. Article 4 of the Constitution confers a right on any person to apply to the Supreme Court by appropriate proceedings to enforce the rights conferred by Part II of the Constitution. These rights include those conferred on all citizens of Samoa by Article 13(1)(a) to freedom of speech and expression, subject to c) the qualification in Article 13(2) authorising reasonable restrictions for certain purposes. The defendants have applied inter alia under Article 4 for the quashing of the information as an infringement of their rights under Article 13. By Article 81 an appeal lies to the Court of Appeal from any decision of the Supreme Court in any proceedings under the provisions of Article 4. No leave is required by Article 81, nor is it limited to the final decision of the Supreme Court in any such proceedings. . We hold that the decision not to order the removal of the application to quash into the Court of Appeal was a decision in proceedings under Article 4. Leave to appeal was accordingly unnecessary. This Court has jurisdiction.

The Chief Justice's decision against removal was for reasons expressed in general terms and intended to cover all the pending applications touching constitutional, issues. The essence of his reasons was that prima facie the Constitution intends the Supreme Court to be the primary court to be responsible for the interpretation of the Constitution, albeit subject to appeal. We accept that this approach is correct. We fully and respectfully endorse it. But it has emerged that the possibility of removal of one limited but crucial question only, rather than a general removal, was not raised before the Chief Justice. In so far as he did not expressly advert to this possibility, an important relevant consideration was not taken into account, although that was through no fault of the Chief Justice. Rather than referring the possibility back to him, so as to seek his view on it, we think it preferable in the interests of justice to expedite the case (which already shows signs of being unduly prolonged) by ruling on it now ourselves.

So it was determined yesterday that, in all the circumstances of the case and bearing in mind in particular the constitutional rights of the defendants under Article 13(1) as qualified by Article 13(2), the present appeal would be allowed to the extent only of directing that them be removed into this Court and argued today the following question:

Whether the allegedly defamatory matters specified by the information are reasonably capable of being regarded as sufficiently serious to justify, the application of the law of criminal libel.

In the event of our so ordering, counsel for the appellants did not wish to pursue any other grounds of appeal. In all other respects the appeal has accordingly been dismissed.

We have now heard argument on the question so specified, and we have also received two affidavits filed on behalf of the informant - one by the informant herself, the other by Mata'utia Uefa Ropati of Iva, Public Service Commissioner.

What have led us to identify the question set out above as appropriate for pre-trial determination by this Court, following removal under the Judicature Ordinance 1961, s.55 (as amended), are the defendants' constitutional rights and the nature of criminal libel proceedings. Freedom of speech and expression, subject to reasonable restrictions as authorised by Article 13(2), are constitutionally assured to all citizens of Samoa, including citizens who control media such as the press. These are cherished and valuable democratic freedom, even although not untrammelled or absolute. Criminal libel proceedings, as distinct from civil actions for defamation, cannot properly be used to fetter or penalise exercises of these freedoms except in cases sufficiently serious to attract the operation of the criminal law. They are proceedings of a kind reserved for libels so serious as to require the intervention of the State in the public interest.Various shades of language have been used to describe the degree of seriousness required. For present purposes it is enough to quote Lord Scarman in Gleaves v Deakin [1980] A.C. 477,495:

'The essential feature of a criminal libel remains - as in the past - the publication of a grave, not trivial, libel'.

In England and formerly in New Zealand, criminal libel proceedings are, or were in New Zealand's case, triable on indictment only. In England such proceedings cannot be brought against a newspaper except by leave of a Judge: see the Law of Libel Amendment Act 1888, s.8; Goldsmith v Pressdram Ltd [1977] Q.B. 83; Desmond v Thorne [1982] 3 All E.R. 268. For observations in the House of Lords on the desirability of a legislative amendment to require the consent of the Attorney - General in non-newspaper cases, see Gleaves v Deakin, supra. In New Zealand the crime of criminal libel has now been abolished but when it existed the leave of a High Court Judge was required: Crimes Act 1961, s.213.

None of these safeguards are provided by the terms of the Constitution or otherwise enacted in Samoa. The combined effect of the Crimes Ordinance 1961, s.84, and the Defamation Act 1992/93, s.17. appears to be that, as under the English and the former New Zealand legislation, the burden of proving a defence of public benefit and truth falls on the defendant. The constitutionality of these provisions remains to be considered (at least initially, in the Supreme Court) and is not for our determination now. We express no opinion on whether or how far they are constitutional, nor on whether their interpretation is affected by the Constitution. What is elm, though, is that, despite the generality of the wording of s. 84 of the Crimes Ordinance, provisions constituting m offence of defamatory or criminal libel are traditionally interpreted as requiring something more serious than might suffice for a civil action for defamation. The constitutional rights under Article 13 entrench and reinforce that presumption. Furthermore, in this particular case the prosecutor did not respond until the hearing in this Court to the legitimate request on behalf of the defendants for further particulars of the case sought to be made against them.

It was against that background, and in the light of the foregoing considerations, that we concluded that argument of the capability question was appropriate at this stage of the case. And, in the event, as will be seen, the argument has served to clear the air.

The argument and the affidavits have satisfied us that the passages complained of are reasonably capable of being regarded as sufficiently serious to justify the application of the law of criminal libel. To avoid any appearance of finally trying the case, which is likely to be the function of the Supreme Court, we should state our reasons briefly only.

We refer first to two points made by Mr Stevens. He said that all the cases of criminal libel he had found reported in the books were cases where the libel had accused someone of criminal conduct. Counsel understandably did not go quite as far as to contend, however, that this is in law an essential requirement. Clearly it is not; there is no authority suggesting that it is; but we accept that whether criminal conduct has been alleged is one factor, and often an important one, in deciding the question of seriousness. In the present case some passages are wide enough in their generality to cover suggestions of criminal conduct, and there is reference to a campaign conducted by the newspaper which has included accusing the Prime Minister of criminal conduct.

Mr Stevens also sought to attach weight to the fact that the publication was in the form of a letter to the paper from a reader, rather than purporting to be an expression of the paper's own opinion. But it is plain that, if a newspaper chooses to publish an obviously scurrilous libel, it cannot escape responsibility by claiming that it is only publishing another person's opinion. Moreover, in this case an affidavit on behalf of the defendants indicates that some editing of the letter was carried out by the newspaper before publication. To that extent the defendants may be said to have adopted the published passages as their own - or at least as passages which they could responsibly place before their readers.

Turning more directly to the passages, we note that they include allegations that the Prime Minister is extremely senile and very soon will die suddenly as a result of something as trivial as being hit by a mosquito or a fly. There are words suggesting that he will go to hell and to work for the devil and that the earth where his body will lie will be accursed and barren. This is reasonably capable of conveying that he is a very wicked and evil man. The affidavit of Mata'utia Ropati satisfies us, even disregarding the expression of opinion in its last paragraph, that such a suggestion about the burial place of a Prime Minister arid prominent matai could be found to be especially serious in Samoa.

The urging of the newspaper to continue hitting the Prime Minister is reasonably capable of being regarded as a reference to a campaign that the paper has been conducting against him. The affidavit of the informant provides particulars of this campaign, exhibiting copies of articles in the paper over a period from June 1997 to February 1998, including references to an alleged conviction for theft and to praying to Satan. It also shows that in pending civil libel proceedings by the Prime Minister against the paper the defendants have pleaded against him various allegations of dishonesty and unlawful misconduct. The relevance of these in that civil action, and any question of their correctness, will be for the Supreme Court when the action is tried. For present purposes the significance of the action and the pleadings in it is simply that it further demonstrates the nature of the campaign that the newspaper has been waging. The defamatory matters charged in the information with which we are now concerned may reasonably be seen as linked with that campaign and intended to remind readers if it.

Numerous cases in the field of criminal libel were cited to us by counsel, but each must turn on its own facts and social setting. Close comparisons are unhelpful. Politicians are expected to have broad shoulders. In the interests of freedom of speech and democracy, they must put up with criticism, even of a strong and unfair kind. But there is a line between: severe criticism on the one hand and vilification or character assassination on the other. The material published by the defendants as specified in the information is reasonably capable of being found to have crossed that line. In some societies it might perhaps be dismissed as obvious nonsense, so absurd as to be incapable of being taken seriously. We do not consider, however, that this is necessarily so in Samoa. What the newspaper has published is reasonably capable of being found to be a criminal libel. The Supreme Court will have the responsibility of deciding whether or not it was in fact such a libel.

The question that has been argued is accordingly answered Yes. The case is remitted to the Supreme Court for the disposal of all outstanding matters. Costs of the present proceedings in the Court of Appeal will be costs in the cause and may be dealt with by the Supreme Court at the appropriate time. We conclude by noting that the Chief Justice has rightly indicated that, by reason of his relationship to the informant, the proceedings in the Supreme Court will have to be heard by another Judge.

Solicitors: Fepulea'i Law Office, Apia, for Appellants;
Katalaina M. Sapolu, Apia, for Respondents