DC474

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2233 OF 2000

BETWEEN

Tulin Monica
Complainant

V

Kulini Jeffrey
Defendant

Mr. Iova S. Geita - Senior Magistrate
Date: 28 September, 18 October 2000

Cases Cited
Tournier V National Provincial and Unions Bank Of England [1924j 1.Kb 461

Counsel Complainant In Person 
Defendant In Person

REASONS FOR DECISION

GEITA. L S This is an action for damages for defamation brought by the complainant, who at the material time was a student at the University of Papua New Guinea, Port Moresby- The defamatory words are alleged to have been spoken by the defendant at Waigani Market to two persons on Wednesday 16th February, 2000. The words alleged to have been spoken of the complainant as set out in the statement of claim in Pisinare as follows:

"Mrs. Thomas Tulin Monica was kissing fondling, and making love with a male student at UPNG, namely Eric Yambe."

Both the complainant and the defendant gave evidence by way of affidavit. Although both were given an opportunity to call witnesses, no evidence was forthcoming from their respective witnesses if any. The parties having waived their right to cross examination the matter was rested for decision by this court.

The court's duty always remains of examining the whole of the evidence to determine whether the claim has been proven on the balance of probabilities. It is well to remember that the general burden of proof is on the plaintiff and if relying upon the natural and ordinary meaning it is for her to show that the words uttered conveys a defamatory, reputation or if it is disputed what defamatory reputation is conveyed, what it conveys the most serious reputation on which she relies. The complainant relies upon the words as it stands and upon the ordinary meaning which can be drawn from it.

In a supporting affidavit the complainant deposed that the defendant had told her husband's brother Philip Tulin and another cousin Nyata Miukin that she was kissing, fondling and making love with a male student at University of Papua New Guinea. She asserted that the said publication conveyed defamatory imputations. In that the complainant whilst a student at University of Papua New Guinea was engaged in sexual activities outside her legal marriage that she had developed sexual relations with named male students whilst a student.

The defendant gave evidence of seeing the complainant with a male student in the library on 16th February 2000. He admits relaying the message to Philip Tulin but stressed that the matter not be reported to the complainant’s husband. The defendants version of the defamatory publication in; "tok pisin" is reproduced hereunder.

"Mi lukim Monica ya sindaun na toktok wantain wampela mangi long library na luk olsem tupela gris tap tasol mi no laikim y tokim Thomas, yu givim taim long milukim sindau, raun na kaikai tupela ya soim na sapos mi lukim sindaun, raun na kaikai tupela ya soim na sapos mi lukim tupeal gen dispeal taim bai mitupela tokim Thomas."

From the defendants "Tok pisin" version it is clear that an objection has been raised here. The defendant is saying that if he sees the complainant and the male student sitting together and kissing he will report to Thomas Tulin. The complainant’s version of the words used is slightly different to what was submitted by the defendant. This is a situation where the publication consisting of spoken words is unnecessarily different as there is no record available to which reference can readily be made for the entire statement by the person to whom the words were published, certainly the immediate context or such passages which bear upon the actionable character of those words must be put before the court. In the case of Tournier v National Provincial and Unions Bank of Englands (124) LKB 461 Murray C. J. said.

"In actions of slender: and in action of libel where the oral evidence of witnesses is the only proof available, those precise words must be alleged in the statement of claim I is no longer necessary for the plaintiff to prove that those precise words were in fact published. It is sufficient if he proves a material and defamatory part or works which were substantially to the same effect."

Whether the complainant has proved that defamatory words of that effect were spoken by the defendant depends on the whole of the evidence. So far as the complainant' s case is concerned no independent witnesses were called. The complainant has disposed that the defamatory words were made to her husband's relatives. This piece of evidence is clearly hearsay and is inadmissible. If this complaint is to stand there must be evidence from a witness or witnesses to say that the defamatory words were made in their presence. I say this because of the requirements found in S.4 (1) Defamatory Act Ch. No. 293.

"For the purposes of this Act publication is in the case of spoken words or audible sounds. The speaking of these works or making of those sounds in the presence and hearing of a person other than the person defamed," (Emphasis mine)

On the whole, I have reached the conclusion that on the facts before me I should not accept the evidence of the complainant as it is not supported in substance by the evidence of an independent witness. I regret to say that I was unable to accept her evidence minus the witness evidence.

For all these reasons the complainant's action must fail and she is not entitled to an award of damages. The end result is that the complaint is dismissed in its entirety.