[2007] Tonga LR 80

IN THE SUPREME COURT OF TONGA

Fanua

v

Uata

Supreme Court, Ha'apai
Laurenson J 
AM 05/2007

22 May 2007; 23 June 2007 

Appeal against Magistrate's Court decision – question of witness credibility – Court would not depart from Magistrate's assessment – appeal dismissed 

The appellant appealed against a judgment of the Magistrates' Court in Ha'apai dated 1 March 2007 in which the respondent had been awarded damages in defamation in respect of defamatory remarks displayed on certain banners. The essential issue at trial and on appeal was whether the appellant had been involved in the erection of the banners. The magistrate accepted the evidence of two witnesses who said they saw the appellant putting up one out of the three banners in question. Appellant's counsel argued that there was so much evidence in conflict with the evidence given by the two witnesses the magistrate relied upon that it could not be held the respondent had proved his case. 

Held: 

1. The quantity of evidence was not the determining factor.

2. An appellate court would not reverse factual findings unless there were compelling grounds for doing so.

3. Exceptional caution was imperative before an appellate court could depart from the reasoned assessment of the court at first instance of a witness's credibility. 

Case considered: 
Rae v International Insurance Brokers Ltd [1998] NZLR 190 

Counsel for the appellant: Mrs Tupou 
Counsel for the respondent: Mr Edwards 

Judgment

[1] The appellant has appealed against the decision of Magistrate Lokutui in the Ha'apai Magistrates' Court dated 1 March 2007. Judgment was given in favour of the respondent who had issued proceedings alleging defamation and seeking damages against the appellant. 

[2] The essential point at trial and on appeal was the question whether the appellant had published defamatory remarks about the respondent in October 2006 by erecting banners which contained the words in question. 

[3] The Magistrate found that the appellant had erected one objectionable banner out of the three alleged. He therefore awarded $333 being one third of the damages claimed plus lawyers and court fees of $380 plus $800 for travelling and accommodation expenses. 

[4] The appellants submitted: 

(a) the Magistrate's findings were against the weight of evidence; 

(b) there had been an error of law in that the Magistrate had found that the plaintiff had proved its case on the balance of probabilities. 

[5] I should say at the outset that I agree with Mr Edwards' submission that the second ground is really a restatement in a different form of the first ground. 

[6] There are two circumstances where an appellate court can differ from the trial judge when considering matters of fact: 

(a) where the conclusion reached was not open on the evidence i.e. there is no evidence to support it; 

(b) if satisfied the trial judge was plainly wrong on the conclusion reached. 

[7] In this case the Magistrate accepted the evidence of two witnesses: 

(a) Lei'ataua Halatokoua who said he saw the appellant putting up a banner; 

(b) Sosefina Talanoa who asked the appellant "whether it was banners that was hanged in town and he answered yes, he said that he went and put it up." 

[8] Other witnesses had deposed to the appellant being present when banners and poles were loaded onto a vehicle and taken to a property under his control and where he had authorised their erection. 

[9] Defence witnesses acknowledged the presence of the appellant but said he did not erect the banners. The defendant admitted being present authorising the use of the poles but denying he had actually erected the banner. He said he had straightened out a banner which had been affected by the wind. 

[10] There is no question but that the evidence of the two witnesses Lei'ataua and Sosefina were critical to the Magistrate's findings in favour of the respondent.

[11] Mrs Tupou argued that there was so much evidence which was in conflict with their evidence that it could not sensibly be said there was evidence upon which the Magistrate's findings could be based. Alternatively, it was submitted the compelling evidence was such that it could not be reasonably found that the respondent had proved his case on the balance of probabilities. 

[12] The quantity of evidence is not the determining factor. In this case the Magistrate specifically determined that the witnesses Lei'ataua and Sosefina should be believed. Importantly, he found that the appellant could not be believed. The key to this case was the Magistrate's findings of credibility. He addressed the issue and gave his reasons.

[13] An appellate court will not reverse factual findings unless there are compelling grounds for doing so. The position in this regard is spelled out very clearly in the Court of Appeal decision of Thomas J in Rae v International Insurance Brokers Ltd [1998] NZLR 190 at 199: 

"It may not be fully appreciated that the deference of an appellate court to the findings of fact of the court at first instance is founded on a number of pragmatic considerations which make it inappropriate for the appellate court to intervene. The advantages possessed by the trial judge in determining questions of fact are manifest. Of paramount importance, of course, is the fact the trial judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence. He or she can form an impression of the reliability of witnesses and, when necessary, the credibility -- although in deference to the witness's feelings the judge may not always express an adverse conclusion in that regard. As the evidence unfolds the trial judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal. The judge forms a perception of the facts in issue from which- he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue. The judge perceives first hand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result. 

An appellate court has none of these advantages and must acknowledge that the court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate court to assert the capacity to be able to "second- guess" a trial judge's findings of facts when it does not share those advantages. Exceptional caution in departing from the trial judge's findings of fact are therefore regarded as imperative." 

[14] In the present case, I can find no basis upon which to disagree with the Magistrate's findings of fact. His findings provide a sufficient basis for his conclusions. He has explained why. For the reasons referred to in Rae I am not prepared to interfere with the Magistrate's findings which are essentially based on his reasoned assessments of witnesses's credibility. 

[15] Mrs Tupou referred to a clear error in the evidence of Lei'atua. He referred to the incident being in August 2006 whereas all other evidence referred to October 2006. There was only one such incident. I do not see that an error as to date when there is so much of the evidence clearly relating to the actual incident in October 2006 is significant and certainly not sufficient to found an argument that Lei'atua's evidence should be disregarded. 

[16] For the above reasons I find that the appeal should be dismissed. The respondents are entitled to costs and disbursements to be fixed if necessary by the Registrar upon taxation.