PacLII Home | Databases | WorldLII | Search | Feedback

District Court of Samoa
You are here:  PacLII >> Databases >> District Court of Samoa >> 2022 >> [2022] WSDC 5

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Police v Tiumalu [2022] WSDC 5 (11 October 2022)

IN THE DISTRICT COURT OF SAMOA
Police v Tiumalu [2022] WSDC 5 (11 October 2022)


Case name:
Police v Tiumalu


Citation:


Decision date:
Oral decision: 09th September 2022
Written decision: 11 October 2022


Parties:
POLICE (Informant) v TIUMALUMATUA LEMALU MUAGUTUTI’A MAIFEA FETU (Defendant)


Hearing date(s):
25th, 26th, 29th, 31st August 2022


File number(s):



Jurisdiction:
CIVIL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Mata’utia Raymond Schuster


On appeal from:


Order:
The defendant is therefore acquitted of the charge and he is free to go. The defendant’s passport that was confiscated by Police is to be returned to him immediately.


Representation:
B. J. Tuala & Superintendent S. Salaa for the Informant
S. Ainuu & M. Lemisio for the Defendant


Catchwords:
publishing false information


Words and phrases:
“Making a false statement causing harm to a person’s reputation” – “application made to quash charges” – “application made for no case to answer” – defamatory libel – defamation – criminal libel


Legislation cited:
Acts Interpretation Act 2015;
Constitution of the Independent State of Samoa, Articles 13; 111; 111(1);
Crimes Act 2013, ss. 4; 4(3); 4(4); 117A; 174A(1)(a); 175;
Crimes Ordinance 1961, s. 84;
New Zealand Crimes Act 1961, ss. 211; 213.


Cases cited:
Attorney General v Latu [2021] WSSC 31;
Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91;
Crockenberg v Police [2018] NZAR 53;
FAST Party v Attorney General [2021] WSSC 25;
Goldsmith v Pressdram Ltd [1977] 2 All ER 557; [1977] QB 83;
He Kaw The v R (1985) 157 Claire 523;
Kilbride v Lake [1962] NZLR 590;
Lange v Atkinson [1998] NZLR 44;
Malifa v Sapolu [1999] WSSC 47;
Police v Carruthers [2017] WSSC 70;
Police v Chan Chui [2007] WSSC 73;
Police v McLachlan [1989] NZHC 400; [1989] 3 NZLR 689;
Police v Paulo [2019] WSDC 3;
Police v Slater [2011] DCR 6;
Police v Toamua [2015] WSSC 50;
Police v Wendt [1997] WSSC 46;
R v Iyer [2016] NZDC 23957;
R v Stevens (1995) 96 C.C.C. (3d) 238;
R v Thomas [1991] NZCA 10; [1991] 3 NZLR 141 at 143[1991] NZCA 10; , (1991) 7 CRNZ 123 (CA);
Texas v Johnson: [1989] USSC 127; 491 U.S. 397 (1989);
Tipple v Pain [1982] NZHC 22; [1983] NZLR 257.


Summary of decision:

IN THE DISTRICT COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


AND:


TIUMALUMATUA LEMALU MUAGUTUTI’A MAIFEA FETU male of Satapuala, Samoa and Sydney, Australia


Defendant


Counsel: Mr B. J. Tuala and Superintendent Sale Salaa for the Informant
Mr S. Ainuu and Mr M. Lemisio for the Defendant


Hearing: 25th, 26th, 29th & 31st August 2022
Oral Decision: 9th September 2022
Written Decision: 11th October 2022


RESERVED WRITTEN DECISION

  1. I had delivered my oral decision on the 9th September 2022 with the proviso that my detailed written reasons will be made available subsequently. These are the reasons as indicated.
  2. The defendant is charged with one (1) count of making a false statement causing harm to a person’s reputation pursuant to section 117A of the Crimes Act 2013 (hereinafter referred as “CA2013”) which carries a penalty of 175 penalty units or imprisonment for a term not exceeding three (3) months.
  3. Section 117A states:
  4. The charge is stated as follows:

Background

  1. The defendant having just arrived in Samoa for a church conference was charged for publishing false information with intention to cause harm. The charge was sworn and filed on 9 July 2022. It was first mentioned before the District Court on 2 August 2022 where the defendant entered a not guilty plea. The defendant sought an early hearing date and was granted without objection from the prosecution. The 19th August 2022 was suitable to both the prosecution and the defendant for hearing, 41 days from the date of filing the charge.
  2. Prior to the hearing, the defendant filed an application to quash the charge. On the date scheduled for the hearing, prosecution applied for an adjournment given two (2) of their crucial witnesses were overseas, Laaulialemalietoa Polataivao Fosi and Vaaaoao Sula Alofipo. Prosecution confirmed that no witness summons were prepared subsequent to 2nd August 2022 but that the two witnesses were due to return Sunday 21 August 2022. It is to be noted that of the nine (9) witnesses disclosed to the defense on 18th August 2022, it did not include the names of Mr Fosi and Mr Alofipo.
  3. Defense counsel also indicated they were not ready as prosecution only served them the day before with trial documents. Noting the motion to quash charges filed by the defendant, the matter was adjourned to hear the motion on the 25th August 2022 with the emphasis that should the motion be successful, that will be the end of the matter. However, should it be denied, the substantive hearing will immediately follow.
  4. I delivered my oral ruling on the motion to quash the charge on the 26th August 2022 dismissing the motion and proceeding with the trial. Counsels were given the opportunity to revisit this question in their closing submissions. Police indicated that they were calling three (3) witnesses however only one was available, Mr Alofipo. Laumatiaamanu Ringo Purcell had travelled overseas. The other, Seuamuli Fasi Toma, was said to have been waiting outside the court room but had since left for Savaii on official government business pursuant to a direction from the “Minister” despite being summoned. Having cited the witness summons dated 24 August 2022, it was noted that Mr Toma and Mr Alofipo’s summons had not been sworn before a Registrar. Mr Purcell was overseas and was not served.

Ruling on Preliminary Issue

  1. Prior to the commencement of the trial, the defendant filed a motion to quash the information on jurisdictional grounds pursuant to section 4 of the CA2013 that “... the information which charges the Defendant with acts allegedly committed by him in Sydney, Australia do not disclose any offences as it was not committed in Samoa”. This part of the decision will also take into account both counsel’s supplementary submissions in closing on the issue.
  2. Section 4 states:
  3. Section 4 reflects an English common law principle that was cited by Sapolu CJ (as he then was) and applied in Police v Wendt[1]:
  4. Common law and equity has acquired the force of law in Samoa “... for the time being in so far as they are not excluded by any other law in force in Samoa, ...” pursuant to Article 111 of the Constitution.
  5. Having not filed affidavits in support of the motion, Mr Ainuu conceded that the “act of publishing” was done in Sydney, Australia. He further emphasized that the core issue would be the place of publication and the meaning to be afforded to the term “publish” which must be read to mean “publish in Samoa”. He offers no legal authority for that definition and its application.
  6. The pertinent question therefore is whether section 4(3) of the CA2013 applies given that the offence of which the defendant is being charged under section 117A of the CA2013 is alleged to have occurred in Sydney, Australia.
  7. Sapolu CJ in Wendt quashed the charges against the defendant applying the common law principle as the Samoan Courts did not have the extra-territorial criminal jurisdiction to determine the matter under section 4(3) nor was there any exception that would invoke the jurisdiction of the court under section 4(4).
  8. Mr Ainuu, as far as it was concerning the extra-territoriality issue, was correct that the question hinders on the meaning to be applied to what “publishes” mean in this particular case. He submits for a restricted meaning only to where the actus reus took place, i.e., the actual place where the alleged defendant created the information and “pressed the key” that enabled the information to go on line. It is necessary therefore for the defendant’s case that ‘publishes’ is restricted only to a literal interpretation of an act done in Samoa. This will bring it in line with Police v Wendt and Tipple v Pain[2].
  9. In Tipple, the defendant organized in Sydney, Australia and sent a consignment of explosive shotgun powder destined for New Zealand. Tipple argues that he had not committed an offence for the actus reus was in Australia. Hardie Boys J disagreed that although the initial act was done in Sydney, the arrival of the aircraft with the explosive powder in New Zealand completed the offence of prohibiting the carrying or consignment of any explosive in any aircraft without the prior consent of the Chief Inspector pursuant to section 38 of the Explosives Act. As a result, both section 7 of the Crimes Act 1961 applied as well as the exception for the Courts in New Zealand to have jurisdiction to prosecute the matter.
  10. The particular point of actus reus was argued by Tipple’s lawyer. Hardy Boys J applied the leading case of Woodhouse J in Kilbride v Lake[3]:
  11. Therefore, as Hardy Boys J elaborated, if the aircraft had been re-directed elsewhere, it would not have been an offence in New Zealand notwithstanding the fact that the consent of the Chief Inspector had not been obtained.
  12. In Police v Slater[4], the District Court had to consider whether section 7 of the Crimes Act 1961 of New Zealand applied to Mr Slater who posted an account together with his opinion of a court case including the name of a person who was the subject of a non-publication order in New Zealand. Slater argued that although he posted the account whilst in New Zealand, the server hosting his website was located in San Antonio, Texas, in the United States therefore outside of the jurisdiction of the relevant New Zealand legislation.
  13. Judge Harvey following an elaborate discussion of the communication technologies associated with the internet, stated in paragraph 11[5] that the internet allowed everyone to be a publisher. Harvey J defined publish in the following:
  14. Mr Ainuu, in his supplementary submissions, distinguished Police v Slater on the basis that the defining terms “downloaded and comprehend” required further definition but on its literal meaning must be direct evidence of “actual download” and “actual comprehension” by a user or audience in Samoa. Mr Ainuu submitted that it was comprehended in Samoa but there was no evidence of the item being downloaded in Samoa. I find this argument incoherent and illogical for the reason that information disseminated via the internet technology could only be accessed, let alone comprehended, subsequent to the act of downloading.
  15. Mr Ainuu may have overlooked the point in Slater so far as to the application of section 7 of the Crimes Act of New Zealand was concerned which was two-fold: firstly, the New Zealand Court had jurisdiction given the interpretation and nature of the term “publishes” in section 139 and 140 of the Criminal Justice Act 1985; and in addition to the first, Mr Slater posted the material from New Zealand. Harvey J was clear that either one or both proven on the evidence in pursuance or completion of an alleged criminal offence would suffice to invoke the jurisdiction of the court.
  16. This present case raises novel issues so far as Samoa is concerned under the criminal libel law as it was also acknowledged in Police v Slater concerning the new age medium of communication:
  17. It is worth citing in full Harvey J’s rationale in rejecting the jurisdictional defense issue for in my respectful opinion is right on point and need not be repeated or para-phrased:
  18. The event must be one that is necessary to complete the offence where it involves part of the actus reus having occurred outside of Samoa. I am therefore satisfied that the issue as to jurisdiction where an alleged offender “publishes” information in contravention of section 117A outside of Samoa via the internet does not exclude prosecution under section 4(4) of the CA2013. The offence was completed in Samoa once the published information was made accessible, downloaded and comprehended by Mr Alofipo and any other person in Samoa.

Evidence

  1. Prosecution had only one witness available on the day scheduled for trial, Mr Alofipo. He testified that he watched the defendant on Facebook. This was recorded on an electronic disc and submitted by consent as Exhibit D1 for the prosecution. The defendant specifically named “Laauli” and “Olo” and characterized the rise of the F.A.S.T political party following the general election as having been brought about by a ruling of the courts which was inconsistent with the Constitution but initiated by the F.A.S.T party. Mr Alofipo further testified that as Secretary of the F.A.S.T party, he felt obligated to bring a complaint as the defendant’s statements were false, harmful and hurtful to the reputation of their party, its members, their families, villages and supporters. Mr Alofipo went as far to state that it could very well be detrimental to their preparations for the next general election. He took the defendant’s published information to mean that the F.A.S.T. party members were dishonest and liars.
  2. Under cross examination by Mr Lemisio, Mr Alofipo confirmed that he did not know who published the material although he associated the publication to the person featuring in the item. Mr Lemisio pressed the witness that the alleged comments were part of a religious sermon on ‘living a humble life’. However, Mr Alofipo was resolute that the intent of the defendant was to harm by publishing false information about their political party.

No case

  1. At the close of the prosecution case, Mr Lemisio applied for a no case to answer submission upon the grounds that there was evidence but it is of a tenuous character (i.e., because of inherent weaknesses or vagueness or because it is inconsistent with other evidence) that the prosecution’s evidence taken at its highest is such that a trier of fact sitting alone properly directing himself or herself could not properly convict on it. Applications of ‘no case to answer’ is well settled law in Samoa[6].
  2. Mr Lemisio submitted that there was no direct evidence that it was the defendant who published the information alleged to be false. He accepts, however, that there is circumstantial evidence based on the video disc produced by consent that the court would be able to draw an inference, and in the absence of evidence to the contrary, that it was the defendant that produced the video or consented to its production.
  3. Furthermore, Mr Lemisio submitted that the fact Mr Alofipo affirmed that the information was published in Australia confirmed that there was no offence committed in Samoa and therefore consistent with the grounds upon which Police v Wendt was quashed by the Court. On such a proposition, Mr Lemisio should accordingly not oppose Mr Alofipo’s evidence that based on the video, it was reasonable to suggest that the defendant published the video or consented to its publication. Respectfully, I cannot place reliance on Mr Alofipo’s confirmation as to the place of publication. Although it may be a logical and deductive speculation on his part, it is still speculation and should be considered with little weight.
  4. This is not the same when it comes to the question of whether it was reasonable for Mr Alofipo to testify that it was the defendant who published the alleged false information. The fact that Mr Alofipo downloaded and listened to alleged information is material and highly relevant. He made a logical and reasonable deductive analysis that the person who was the central focus of the material most probably published or consented to the publication of it.
  5. Mr Lemisio repeats their extra-territorial argument in support of the issue as to the act of publication. However, given my finding as to the meaning of the term ‘publish’ stated earlier, I concluded there was prima facie evidence for a case to answer.
  6. The next question is whether the corresponding element relating to the victim or complainant ‘about another person’ under 117A(1)(a) refers to a natural person only or may also include a legal person or entity, in this case the F.A.S.T. party. Mr Lemisio submits that it should be restricted to mean a natural person. This is understandable given the charging information identifies the reputation of the ‘person’ harmed as the F.A.S.T. Party. Mr Alofipo testified that not only was the reputation of the F.A.S.T. party harmed, but specific members of the F.A.S.T. party being ‘Laauli” and ‘Olo’ were also named in the information published. For whatever reason, no evidence was tendered from ‘Laauli’ or ‘Olo’ nor were their names on the prosecution witness list and that is as far as the matter can be considered.
  7. Mr Lemisio rejects the prosecution submission that the Acts Interpretation Act 2015 (hereinafter referred as the “AIA”) defines ‘person’ as including a legal person for it was inconsistent with the intention, object and context of section 117A of the CA2013. Furthermore, such an interpretation would be contrary to a provision, context or intention of the Crimes Act 2013. However, instead of substantiating the legislative inconsistencies that would exclude a wide interpretation of ‘person’, Mr Lemisio merely made an emotive appeal as to the likely detrimental effects of applying such a wide interpretation especially when it relates to a political party.
  8. I find there is no clear or obvious inconsistency given to the meaning of ‘person’ in the AIA and the intent, object and context of section 117A of the CA2013. It would be absurd to suggest that a legal person (which would in my view include a political party unless there was authority to the contrary) whether duly registered or not as an organization under the relevant laws of Samoa would be immune to harsh and defamatory criticisms merely because it is not a natural person. The fact is that a legal person is recognized by law to have a legal personality which enables it to sue and be sued particularly when to do with its corporate image and reputation.
  9. Mr Lemisio is further concerned that such a wide interpretation would be in breach of Article 13 of the Constitution in relation to a person’s freedom of expression. It must be made clear that such rights are not absolute and subject to restrictions designed to protect interests and values which qualify the scope of any right[7]. Section 117A is a clear interference to the right of freedom of expression and the limitation in my view is justified by law and not inconsistent with Article 13 of the Constitution. The purpose is to hold people exercising their freedom of expression to a higher standard devoid of vile and malicious intent.
  10. In saying that, there is at times a fine balance between freedom of expression and the existence of some lawful restriction that the courts, if faced with, must determine. The fact that one’s expressed opinion contradicts and offends that of another in and of itself does not constitute a breach of section 117A whether a natural person, political party or other. The test in this case is whether the maker of the publication intended to use his right to freedom of expression, knowing the information to be false, in order to cause harm to another. I will come back to this in the substantive part of this decision.
  11. The question as to whether the information was false and intent to cause harm is one of weight to be determined in closing submissions under the standard of proof beyond a reasonable doubt. However, I am satisfied on a prima facie level that there is evidence of the information and that it was published.
  12. As to the remaining element of intention to cause harm, I find that there is evidence that a publication was made that could lead, on a prima facie level, to harming a person’s reputation based on the video tendered and the testimony of Mr Alofipo requiring the defendant to answer. I therefore dismissed the no case to answer application but gave leave for counsels to revisit the jurisdictional issue in closing. Having made that determination earlier in this decision, I will not prolong this decision by repeating that finding.

The Law Section 117A

  1. Criminal libel was part of the repealed Crimes Ordinance 1961 (CO1961) section 84 which stated:
  2. The history of section 84 shows that only one case came before the Courts prior to 2013. Malifa v Sapolu[8] was a case involving the late Prime Minister Tofilau Eti Alesana who brought a private prosecution against the publisher of Observer Newspaper, Savea Sano Malifa, and its Samoan Editor, Fuimaono Fereti Tupua over a letter that was published in the Samoa Observer.
  3. Although the substantial proceeding was stayed following the passing of the then former Prime Minister Alesana, the pre-trial issues raised important legal questions of substance and procedure that would be a guide to future cases of criminal libel. Justice Moran was tasked to deal with two (2) main pre-trial constitutional questions:
  4. The status of the criminal libel law in Samoa was stated by Justice Moran as such at the time:
  5. It is clear from Justice Moran’s assessment of section 84 that it did not codify the English common law by creating a statutory offence but instead merely provided statutory limitations on the offence. Following an elaborate discussion as to whether section 84 infringed on any of the Applicants constitutional rights especially the right to ‘freedom of speech’, Justice Moran restated the scope of criminal libel law in Samoa:

Available Defenses:

The following defenses are available to a defendant who bears the burden of proving them upon the balance of probabilities.
1. That the statement is true provided that the defendant proves that publication is for the public benefit.
2. That the statement is published on an occasion of privilege (absolute or qualified).
3. That the statement amounts to an honest expression of opinion or fair comment.
Privilege and fair comment are defeated by the prosecution's proving that the publisher was actuated by express malice.
Context - political statements:
The publication which is the subject of these proceedings is in the nature of political comment upon the ability of a public figure to discharge his office. It is published not by the author but by the publisher and editor of a newspaper in the form of a letter to the editor.
Against this contextual background a high value is to be placed upon freedom of expression. This bears upon whether a provision that restricts the right is "reasonable".
"The more worthy the activity, the more difficult it is to justify a limit on it. On the other hand, a limit on activity which is harmful to another and far removed from the values embodied in the freedom of expression can more readily be justified." - Lucas para 89.
................
In the final analysis I am not persuaded that the law of criminal libel as it stands in Samoa impairs the right to freedom of speech and expression any more than is necessary to accomplish Parliament's objectives.
It follows that the law of criminal libel in Samoa is a reasonable restriction upon the exercise of the right to freedom of speech and expression.
  1. So far as the first question is concerned, Justice Moran was satisfied that the offence of criminal libel as it exists in Samoa, infringes the applicants' constitutional right to freedom of speech and expression. However, such infringement, was justified as a reasonable restriction on the right and is not therefore inconsistent with the Constitution.

Crimes Act 2013

  1. The Crimes Act 2013 repealed the CO1961 along with section 84. The Samoa Law Reform reviewed the CO1961 and recommended:
  2. Despite Parliament accepting the recommendation and left out section 84 from the new Crimes Act 2013, this changed in 2017. The Crimes Amendment Bill was urgently introduced and tabled on the 17 December 2017 in Parliament to amend the Crimes Act 2013 and introduced the new offence of ‘False statement causing harm to a person’s reputation’ by false publication. The Explanatory Memorandum introducing the amendment stated:
  3. Introducing the bill, the then Minister of Justice and Courts Administration, Faaolesa Katopau Ainuu stated justifying the amendment in Parliament:
  4. Member of Parliament and lawyer by profession Fonotoe Lauofo Pierre Meredith added in an interview with Samoa Observer dated 19 December 2017 said:
  5. Former Prime Minister Tuilaepa Sailele Malielegaoi quoted in the Samoa Observer edition of 20 November 2017 prior to introducing the bill to Parliament:
  6. Section 117A of the CA2013 bears several significant differences from section 84 of the CO1961:
  7. It seems the issues elaborately dealt with by Justice Moran in relation to section 84 as to its codification, constitutionality, burden of proof and defence of truth appear now to be non-issues under the resurrected libel law under section 117A. In saying that, Justice Moran’s decision is still relevant as to the approach to be considered when assessing whether or not to invoke the intervention of criminal libel on a case by case basis.
  8. The first case since the re-enactment of section 117A was Police v Paulo[11]. Mr Paulo entered not guilty pleas to 14 charges of publishing information that were false and intended to harm the reputation of the Prime Minister at the time, Tuilaepa Sailele Malielegaoi. Most of the charges were alleged to have been performed whilst in Australia where Mr Paulo permanently resides. The prosecution subsequently withdrew all 14 charges and substituted with one charge that was alleged to have been committed whilst in Samoa on the 17 May 2019 pending the hearing. To this single charge, Mr Paulo entered a guilty plea and appeared for sentence before District Court Judge Papalii.
  9. Judge Papalii, in reviewing the issue of criminal libel laws and freedom of expression, was of the opinion that the civil remedy for defamation was insufficient to cater for wrongdoings against individuals in the Samoan context especially where reputation, family and fa’a-Samoa are concerned[12]. ‘Criminal law’ was therefore necessary:
  10. I accept and agree with Judge Papalii that the ‘criminal law’ is the ultimate refuge against deviant criminal human behavior that inflict physical and psychological harm on innocent members of society. However, so far as ‘criminal libel law’ is concerned, I do not believe that Judge Papalii intended to mean that it warranted the same blanket scope of application. That is, for criminal libel to be invoked in every instance of defamation that may come to question or demean the reputation of a Samoan. Furthermore, it would not be limited to a Samoan especially one in the political arena. I further do not believe that Judge Papalii was rejecting civil defamation as a non-option but that Her Honours emphasis was on access and affordability especially for the underprivileged.
  11. Whilst I accept that ‘criminal law’ may be the refuge against all deepest injuries that human conduct can inflict on individuals, it is also not immune to abuse and manipulation like any other legislation. In many instances, to the detriment of the underprivileged. This is especially evident when applied to criminal libel because there is a fine balance between the freedom to express an opinion that may be critical and offensive on the one hand and may be defamatory and/or malicious on the other.
  12. In the controversial but landmark Texas v. Johnson[14] case, the US Supreme Court voted 5-4 in favor of Gregory Lee Johnson. Johnson was the protester who had burned the American flag in protest to the policies of the late President Ronald Reagan in violation of a Texas statute that prohibited the desecration, inter alia, of the American flag:
  13. Despite the fact that Johnson’s actions were malicious, offensive and disagreeable to the majority of the American society who respected the American flag, the Court found that the government should not prohibit via legislation his individual right as a minority to express in his own way opposition to a political policy he does not support. This was and still is the backbone of a democratic government. To be distinguished from this particular matter, Johnson was a ‘non-speech’ case but the action symbolic in nature and clearly directed against the Reagan administration.
  14. Respectfully, I do not believe it is necessary that the criminal libel law be made the ultimate reliance or first stop against all defamatory complaints. The availability and accessibility of communication via technology on different website platforms has dramatically changed the ‘publication’ landscape where it was previously limited to newspapers, television, radio and magazines. It is so pervasive as well as intrusive that it has taken on a life, nature and character of its own daring to impose its own right by virtue of its global appeal to be at the finger-tips of each and every human being. The expression and exchange of opinion in real time that may or may not be injurious to another person, in my respectful opinion, calls for an objective standard that distinguishes one act that may offend section 117A from an act that does not.
  15. As important as protecting the reputations of persons is the necessity for people to be assured that they can be able to speak freely especially in a democratic society. Justice Moran acknowledges it as such in Malifa and adopted the passage from Huband and Philp JJ. A:[15]
  16. Justice Moran dealing with Article 13 of the Constitution further contended that a proper balance is required as to the right of free speech and the limitation regulated by legislation provided that it is reasonable:

Seriousness

  1. Given Justice Moran’s determination of the Constitutional issue relating to section 117A as providing a limitation to freedom of speech in Article 13(2), I can now focus on the case at hand. The question therefore is should the criminal libel law intervene and what factors should be considered in answering this question? One of the remedial measures as to whether the criminal law will intervene would depend on the “seriousness” of the charge. Justice Moran affirmed this requirement when considering whether a particular matter warranted invoking the criminal law:
  2. The Rt Hon. Lord Cooke of Thorndon, President, the Rt Hon. Sir Maurice Casey and the Hon. Sir Ian Barke[16] dealt with an interlocutory appeal by the same parties in Malifa v Sapolu. This was in relation to a refusal by the Chief Justice Sapolu of an application by Malifa for removal of the pre-trial proceedings involving constitutional questions from the Supreme Court to the Court of Appeal. At the same time, the court of appeal was tasked with the 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’.
  3. Although there is no equivalent preliminary safeguard in section 84 as found in section 213 of the New Zealand Crimes Act 1961 the mandatory requirement to obtain leave of a Justice of the High Court before prosecution can be instituted, it appears Mr Steven’s for Malifa took advantage of the opportunity to make it a preliminary issue before the Court of Appeal to quash the information.
  4. Lord Cooke, delivering the Courts decision, answered the question in the affirmative. In determining the scope that the term “serious” must be applied, Lord Cooke stated:
  5. Lord Cooke took account of allegations of criminal conduct against complainants and continuous campaign on the part of the newspaper. The respondent’s affidavit in support and in counsel’s submissions showed that the newspaper had published many articles detailing instances of abuse, mismanagement, and ongoing departures from basic principles of good governance. The affidavit further attest to reports, in the past, of alleged sexual impropriety by the former Prime Minister. Lord Cooke concluded that these factors, particular to this case, are relevant to determining whether the alleged offending conduct was “sufficiently serious” to invoke criminal libel.
  6. The history of the criminal libel law in Samoa goes back to the Administration of New Zealand under the League of Nations following the end of the First World War. The Samoa
    Act 1921 (hereinafter referred as the “SA1921”) was a creature of the New Zealand Parliament[17] designed to govern the new colony. Section 153 of the SA1921 provided for criminal libel and was an exact duplicate of the New Zealand Crimes Act 1908:
(ii) To publish a defamatory libel means to do any act which confers upon the person defamed a right of action for damages for libel.
(iii) In a prosecution under this section the burden of proof shall be determined by the same rules as in an action for damages for libel.
(iv) In a prosecution under this section it shall be no defence that the libel is true unless the publication thereof was for the public benefit.
  1. Upon gaining independence on 1 January 1962, section 153 of the SA1921 was retained verbatim in section 84 of the CA1961 and remained until it was repealed in 2013. It is reasonable to infer given (Western) Samoa’s new found independence and infancy as a nation, the intricacies and shortcomings of section 84 were far from the minds of the new law makers.
  2. Given this historical connection, it is worth considering as a guide criminal libel cases in New Zealand as to answer, inter alia, the question what constitutes “serious” libel. The criminal libel law created by section 211 and 213 of the New Zealand Crimes Act 1961 was repealed by the Defamation Act 1992:
  3. The main distinctions with section 84 of the CO1961 and section 117A of the CA2013 is the fact that section 213 provides a safeguard qualification where leave of a Judge of the High Court is required before a prosecution is commenced. In Police v McLachlan[18], Fraser J adopted Justice Wien’s ratio decidendi in Goldsmith v Pressdram Ltd[19]. A subset of the safeguard requires that there must, firstly, be a clear prima facie case; secondly, the libel must be a ‘serious’ one; and thirdly is to ask the question whether the public interest require the institution of criminal proceedings:
  4. McLachlan was instituted under section 213 for leave to prosecute. Fraser J found the libel allegation sufficiently serious and warranted the interference of the criminal law. This took into account, inter alia, the grossness of the libel, the eminent public position of the complainant, the nature of the publication and the nature of the article itself.
  5. Justice Moran in the Malifa case formulated that the right to be outspoken politically in a free society is necessary and must be protected under a system of free expression whether it be in Samoa, Canada or New Zealand:
  6. Justice Moran further cited and endorsed the English Law Commission’s report to Parliament in September 1985 identifying what it saw as shortcomings in the law of criminal libel. The Law Commission was concerned as to two aspects which make it unacceptable in the modern society: firstly, the burden of proof placed on the defendant, and not the prosecution, to prove he/she was telling the truth and that it was for the public benefit; and secondly, the defence of mistaken belief:
  7. It is for the prosecution to firstly prove that the published information was false. In order to prove a statement to be false, the prosecution would have to provide a counterexample, i.e., by showing a situation where an existing counter statement disproves the false statement. Furthermore, I am of the view that the new section 117A requires the prosecution to show that the defendant, being aware that there was a counterexample, nevertheless published the false information with the intent to harm a person’s reputation.
  8. Therefore, the mens rea must be satisfied by the prosecution prior to and in the absence of the defendant raising a truth defense to be stated as such:
  9. It is to be understood that libel laws have taken a new meaning given the new modern age of communication and the desire to preserve the right to free speech subject to a justified limitation of those rights. Section 117A is one restriction to that right. However, given such restriction to protect reputation, the state must approach with caution so as not to undermine public confidence in the pursuit of truth in a democratic society especially where public officials are called to be held accountable. As Lord Cooke[21] put it:
  10. I would venture to say that vilification or character assassination per se may not necessarily follow as crossing that imaginary line. There would, in my respectful opinion, be exceptional instances where verification of alleged abuse of public office warrant protection of public outcry which characterize vilification and character assassination as freedom of speech.
  11. For the purpose of this part and in view of the new section 117A, it is in my respectful opinion necessary that to prove the alleged information to be false, the state must prove that the defendant was aware of a state of affairs that was contrary to what he believed to be the case. The defendant is not required to prove truth until the prosecution have established on sworn testimony or otherwise that there was a state of affairs contrary to what the defendant believed and published.

Defences

  1. Justice Moran in dealing with section 84 acknowledged that the common law defences of privilege (absolute and qualified) and fair comment were available in a charge of criminal libel:
  2. The enactment of section 117A has also made justification and truth as defenses to a charge of criminal libel where it was not under common law and the repealed section 84.

Summary

  1. The scope of the law of criminal libel may now be restated pursuant to section 117A:

The scope of libel law is restricted by the available defenses to a defendant who bears the burden of proving them upon the balance of probabilities:

(i) It matters that the statement, though false, but was acting under a mistaken and honest belief to be true whether it was reasonably held or not;
(ii) That the statement is published on an occasion of privilege (absolute and qualified);
(iii) That the statement amounts to an honest expression of opinion or fair comment.

Privilege and fair comment are defeated by the prosecution proving that the publisher was motivated by express malice.

  1. In terms of the factors to be taken into account as to whether an offence has been committed to invoke section 117A:
  2. Even if one or all of the above factors are found to exist in the circumstance of each case, the final question must still be determined as to whether the public interest require the intervention of the state by instituting criminal proceedings instead of a private case between individual’s. Obviously, the more serious the allegation on reputation and the absence of belief in truth, the higher the likelihood of invoking criminal libel.

Discussion

  1. Having dismissed the application of no case by the defendant and the latter electing not to give evidence, I am now to consider the unchallenged sworn oral testimony by the prosecution and the documentary evidence produced by consent. The question is whether the prosecution who carry the burden of proof have proven beyond a reasonable doubt all the elements pertaining to the charge. Until the prosecution discharge the burden will I turn to the issue of defense of truth being mindful that the defendant had elected not to give evidence.

i. Publish information

  1. So far as the first element is concerned, I am satisfied that the prosecution have proven publication and that it was the defendant that either published or consented in the facilitation of the publication. Mr Lemisio and Mr Ainuu have aggressively argued that there is no evidence that directly links the defendant to the publication not only in their no case submission but also in closing. However, having tendered the video by consent, I would have to take into account all the contents of the video as appears on the screen at different intervals as well as take note of the popularity and global explosion of the Facebook platform that the defendant is alleged to have used.
  2. Having earlier decided that there was a prima facie case for the defendant to answer, the question is whether prosecution have proven this element to the necessary standard. I accept that there is no direct evidence as the defendant consistently pointed out. However, there is circumstantial evidence that I can draw inferences from in order to determine this question.
  3. The defendant is the central focus of the material and for all purposes appear to be the person in control of its compilation either in self-recording or directing its recording. Furthermore, contact information intermittently scrolling at the bottom of the screen (telephone numbers, email address, website address, etc) would be normally suggestive as directly related to the defendant’s program to invite ‘live on the air’ comments, email or blogging. There was no other evidence to the contrary or that the video and its content was the creation of someone other than the defendant.
  4. Mr Ainuu submits that it would not be necessary to take judicial notice of how Facebook works or in particular that accounts on Facebook would ordinarily belong to the person whose personal profile is on the account unless it is a ghost writer or pseudonym. The question in R v Iyer[23] relied by the defendant was whether the uploading on Facebook photographs of the complainant constituted the ‘posting of a digital communication’ as defined in the offending provision. Judge Doherty determined that it was not necessary to call expert evidence. Neither did Judge Doherty rule out taking judicial notice as to how Facebook works and it was not necessary to have expert evidence for, regardless of the platform, the issue is whether the posted material was a ‘digital communication’[24].
  5. Iyer was a no case submission and the identity of the defendant was not an issue based on his admission that he created the account and posted the two photographs of the complainant.
  6. I find that it is not necessary to take judicial notice in this case for I can infer from the evidence that the Facebook account of which the information was published belong to the defendant whose physical profile and appearance is the focus of its content. This evidence is uncontested despite the defendant’s protests in cross examination of Mr Alofipo.

ii. About another person

  1. As to the second element, I am also satisfied that the information published refers to the complainant as named in the charge being the Faatuatua i le Atua Samoa ua Tasi (F.A.S.T.) political party as already discussed earlier[25].

iii. That it was false

  1. As to whether the information published was false, has the prosecution proven this element beyond a reasonable doubt? This issue is related to the statutory defence under section 117A(2). The common law defence of honest belief is directed to that mens rea element. It requires evidence that the defendant had an honest belief in a state of affairs or as to the existence of a fact, which if true would make the act innocent[26]. Justice Muir in Crockenberg v Police[27] held that once the defendant provides an evidential foundation for such a belief, it is then for the prosecution to prove beyond reasonable doubt that the defendant had no such belief. This case was in relation to a charge of willful trespass. The defendant’s belief need not be reasonable; it simply must be honestly held.
  2. In the High Court of Australia in He Kaw Teh v R[28], Gibbs CJ said that if guilty knowledge is an element of an offence, an honest belief, even if unreasonably based, may negative the existence of the guilty knowledge and thus lead to an acquittal. This case involved the importation of prohibited imports.
  3. There is no sworn evidence from the defendant that he knew that the statement was false yet alleges that he had an honest belief that a state of affairs or as to the existence of that fact was honestly held to be the case. Mr Alofipo was extensively cross examined by Mr Lemisio that the highlighted alleged defamatory information –

was in the mind of the defendant true given the determination of the Supreme Court decision in Attorney General v Latu.[29]

  1. Mr Alofipo rejected this and countered that it was the Supreme Court decision on Sunday 23 May 2021[30] that paved the way for the swearing in of the new government under the F.A.S.T. party. Therefore, the Supreme Court merely confirmed a legitimate election result as opposed to being the institution that appointed the F.A.S.T. elected members as the new government via an unlawful decision as opposed to the results of the election.
  2. Given the number of applications and counter applications that were filed before the Supreme Court and Court of Appeal leading up to and after the swearing in of Parliament on 24 May 2021, it would not have been an exaggeration if many Samoans local and abroad were to look at the whole situation and feel confused about the legal status of the result of the elections. This is a relevant consideration. Mr Lemisio challenged Mr Alofipo that the published information was the defendants own opinion and political understanding of the results of the election based on Attorney General v Latu[31].
  3. It is for the prosecution to prove that the information published was false. The prosecution narrowed their focus from a verbose charge to only two statements as referred in paragraph 94 above. There was no application to amend the charge at the close of the prosecution’s case. Notwithstanding, I am empowered under section 93 of the Criminal Procedure Act 2016 to make such amendment where the evidence warrants provided the defendant has not been misled or prejudiced by the amendment. I do so make that amendment.
  4. As discussed earlier[32], the prosecution would have to tender evidence of a counterexample. There appears to be at least two Supreme Court decisions that the alleged published statement may be referring to. However, prosecution had not clearly identified via Mr Alofipo as to which decision is that referred to by the defendant. Mr Alofipo’s evidence identified the decision that was made on “Sunday” which preceded and paved the way for the swearing in of Parliament on Monday 24 May 2021. It would follow that case was the FAST Party v Attorney General[33] of 23 May 2021. However, Mr Lemisio focused cross examination on the 28 May 2021 case where the swearing in was, inter alia, ruled to be unconstitutional.
  5. I take judicial notice of the above Supreme Court and Court of Appeal decisions relating to the results of the 2021 election. However, I cannot generalize as to how the general Samoan, without specialized legal understanding and/or training, local or abroad, perceiving the same circumstances, would arrive at interpreting the state of affairs at the time to be the same. I am not satisfied that the prosecution evidence goes as far to prove beyond a reasonable doubt a state of affairs that was contrary to the state of affairs that was perceived and believed by the defendant. That is, there was no clear and unambiguous evidence to show that the state of affairs, at the time the defendant published the information, was that the F.A.S.T. party came to be the government by virtue of a clear election result.
  6. I am further not satisfied that prosecution have proven on the evidence beyond a reasonable doubt, even if prosecution proved that there was counterexample, that the defendant was not mistaken as to his belief as to the existence of facts inferred from the circumstances of the case that what he published was false. Having made that determination, that would be the end of the matter and the defendant must be acquitted of the charge.
  7. However, if I am wrong on this, we move on to consider the final element.

iv. Intention to cause harm to that person’s reputation

  1. As discussed earlier, to determine this element, I must take into account several factors such as: that there must be a clear case of criminal libel, that it was serious and not a trivial vilification on reputation, that there may be allegation(s) of criminal conduct on the part of the complainant, the eminent public position of the complainant, the nature of the publication, the nature of the article itself and whether there was express malice.
  2. Prior to the determination of the above factors, I must first consider whether the prosecution have proven on the evidence beyond a reasonable doubt that the defendant intended to vilify and cause harm to the F.A.S.T. party reputation. I accept on the evidence that the published information alleged was part of a sermon on “Aua le ola faasausili” (Do not live a prideful life). Of the whole six (6) hour video, the alleged offensive statement appears at about 1 hour 17-minute mark. The rest of the video were spiritual messages of encouragement, resilience, acceptance and support of the new government.
  3. There is no evidence of a persistent nature of offensive remarks beyond the video footage tendered although there was suggestion that the defendant posted several damaging videos. If there were such evidence of similar, habitual persistent behavior of alleged abuse of free speech over the Facebook platform, that would have been significant as to the intent of the defendant to cause harm to reputation. This was one of the crucial considerations in Iyre.
  4. In saying that, it does not mean that one instance is not sufficient to raise a section 117A charge for a single instance may be just as severe and damaging that it would no doubt require the intervention of the criminal law.
  5. I find the nature and content of the published information not trivial given the sensitivities that are pertinent to a Samoan society as alluded to by Lord Cooke, Justice Moran and Judge Papalii respectively. However, it is in my view short to the extent of being so serious as to invoke the intervention of the criminal law. The novelty of the application and issues arising out of section 117A necessitated a thorough determination of the evidence as a whole on trial with sworn testimonial evidence as opposed to a pre-trial preliminary issue.
  6. I accept as Mr Alofipo testified that behind the F.A.S.T. party are real people associated with it for without them there is no party. Therefore, unwarranted and unfounded criticisms may bring shame, embarrassment and general ostracism that may even bring about its demise. Nevertheless, this is the nature of the animal called politics where the battle for accountability is at the national level and the most public exposure. Public criticism is therefore not just expected, it is anticipated measured only to the limitation provided by law.
  7. At the end, I am not satisfied that prosecution have proven beyond a reasonable doubt that it was the defendant’s intention when publishing the material alleged to harm the reputation of the F.A.S.T. Party.

Conclusion

  1. The defendant is therefore acquitted of the charge and he is free to go. The defendant’s passport that was confiscated by Police is to be returned to him immediately.

MATA’UTIA RAYMOND SCHUSTER
DISTRICT COURT JUDGE

[1] [1997] WSSC 46 (1 May 1998); R v Martin and Others 2 All ER 86
[2] [1983] NZLR 257
[3] Ibid Par 35 & 40 pg 259; [1962] NZLR 590
[4] [2011] DCR 6
[5] Ibid
[6] Police v Carruthers [2017] WSSC 70 (29 May 2017); Police v Chan Chui [2007] WSSC 73 (25 September 2007);
Police v Toamua [2015] WSSC 50 (19 May 2015)
[7] Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 (par 37); Police v Slater [2011] DCR 6 (par 123)
[8] [1999] WSSC 47 (30 March 1999)
[9] Article 111(1), Constitution of the Independent State of Samoa
[10] SLRC Report 01/10, 2010 at 64
[11] [2019] WSDC 3 (25 October 2019)
[12] Police v Paulo (par 103); Wechsler, H “The Challenge to the Penal Code in Glanville Williams in A textbook of Criminal Law (1978 at p3, quoted in the Canadian case of R v Stevens [1993] CanLII 14706 at 145
[13] Ibid par 111
[14] Texas v. Johnson: 491 U.S. 397 (1989)
[15] R v Stevens (1995) 96 C.C.C. (3d) 238 at 266-7
[16] Malifa v Sapolu [1998] WSCA 5; 06 1997 (6 March 1998)
[17] 1st December 1921, Parliament House, Wellington, New Zealand
[18] [1989] 3 NZLR 689
[19] [1977] 2 All ER 557; [1977] QB 83
[20] Lange v Atkinson [1998] NZLR 44 at 428
[21] Malifa v Sapolu [1998] WSCA 5; 06 1997 (6 March 1998)
[22] Malifa v Sapolu [1999] WSSC 47 (30 March 1999)
[23] [2016] NZDC 23957 (28 November 2016)
[24] Ibid par 24
[25] See par 33-35 above
[26] R v Thomas [1991] NZCA 10; [1991] 3 NZLR 141 at 143, (1991) 7 CRNZ 123 (CA)
[27] [2018] NZAR 53
[28] (1985) 157 CLR 523.
[29] [2021] WSSC 31 (28 June 2021)
[30] FAST Party v Attorney General [2021] WSSC 25 (23 May 2021)
[31] [2021] WSSC 31 (28 June 2021)
[32] Par 74 above
[33] [2021] WSSC 25 (23 May 2021)

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/ws/cases/WSDC/2022/5.html