IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

AM 25/2008

Taunauta anors

v

Malupo

Shuster J 
13 February 2009; 20 February 2009

Defamation – appeal against damages awarded – excessive – damages reduced 

On 13 May 2008, two police officers attended the home of the respondent and her husband as a result of a domestic dispute. The respondent said her husband threw something at her van and as a result of that she called the police to her home for help. When the police officers arrived at the scene, they were said by the respondent to have asked her whether the respondent was the one that had been served with the summons, but kept on running away for the court case. The officer also asked whether the respondent was the one staying in a defacto relationship with "the bald head guy". The husband was then angry at the respondent. The respondent claimed the police officer's comment was defamatory and warranted damages claimed at $5,000. The Magistrates' Court ordered the appellants to pay the respondent $1,000 with court costs of $600. The appellant appealed against the level of the award of damages, not an appeal on the Magistrate's findings of fact or on the award of costs. 

Held:

1. A Higher Court would only interfere with the factual findings of a lower court in the clearest of cases, for example if the appellant court was able to conclude the Magistrate's decision was unsound, or that the Magistrate clearly came to the wrong conclusion. 

2. This was a very low level defamation case. Every police officer had a sworn duty to protect and keep the peace. Every police officer had the legal right to look for suspects, to trace persons wanted for offences, and serve process according to law. 

3. The Tongan tradition was that an apology was usually offered by any wrongdoer, and an apology was usually accepted. The respondent spoke to the officer in charge of the police station and the officer suggested the respondent should lay charges and that was exactly what the respondent did. If the officer were to apologize later, then one side to the dispute may construe any attempt to apologize, as either attempting to pervert the course of public justice, or as an admission of liability. 

4. The appeal against the level of damages awarded by the Magistrate was allowed. This was a defamation case at the very lowest end of the scale therefore the order for $1,000 was quashed. 

5. The appropriate amount of damages was assessed at $25. 

Case considered:

 Pa'ila v Ma'u [2002] Tonga LR 114

Statute considered: 

 Defamation Act (Cap 33) 

Counsel for the appellants : Mr Kefu 
Counsel for the respondent : Mr Fifita 

Judgment 

This Appeal concerns a ruling in the Magistrates Court- in civil case no. 106/07- a case involving an allegation of Defamation. The Appeal is against the level of the award of damages, not an Appeal on the Magistrates findings of fact or on the award of costs of $600.00 in the lower court.

The Claim 

The plaintiff claims from you $5000.00 for defamation in which KAUTAI TAUNAUTA (an officer of the second defendant which is a department of the third defendant) told the plaintiff that they had been looking for her, as she was the one who stayed in defacto with the bald guy. The plaintiff strongly denied ever staying in defacto with anyone, but you repeatedly said the same thing to her, and were heard by VILIAMI TOKI and the plaintiff's husband. TOKI told you that it was a different woman, not the plaintiff but you kept saying that it was the plaintiff. What you said was untrue. 

The trial in the Magistrate's court concluded on 19th August 2008 when the Appellants were ordered to pay the Plaintiff (now respondent) $1,000.00PA with court costs of $600.00PA. 

Formal Notice of Appeal against the Magistrates Ruling ON THE LEVEL OF DAMAGE ONLY was signed on 29th August 2008 by Mr. AMINIASA KEFU, counsel for the appellants and the Notice of Appeal was subsequently served in the Supreme Court. 

The Appeal was assigned to me by Ford CJ on 5th February 2009; I listed the case for hearing on 13th February 2009 at 09.30. The substantive hearing of the appeal took place on Friday 13th February 2009 with judgment reserved to 09.30 20th February 2009. I shall mention later in my Judgment the question of what I consider to be fairly substantial delays in this case. 

Six Grounds of Appeal were Adduced 

1. That the nature of the Defamation was based upon a mistake, by the first defendant and that it was not intentional. There was a police investigation and the officer was investigating another case where the person was living in a defacto relationship. A complaint had been made concerning an assault and the police had been looking for someone with the same name. The nature of the statement made was more like an enquiry so in brief that if the context of the enquiry of the respondent in this case. 

2. That the statement was made in the presence of only the respondent's husband and another policeman at the scene PC Toko. They had been called to the scene as a result of a domestic dispute and the respondent had called the police. The first appellant assumed she was the person he was looking for. At the trial, only the husband of the complainant was called to give evidence. PC TORI was not called to give evidence of the extent of the defamation. 

3. The husband was cross-examined. He said he did not believe the officers statements. Unfortunately for this appeal the transcript is not complete- it does not show the record of the cross examination of the husband, it only records the evidence-in-chief. Counsel did cross examine the husband. The husband did admit in cross examination he did not believe the statement. It minimises any damage. 

4. In minimizing the claim- at the time the husband heard the words, he was in an agitated state. He was drunk and angry on that evening. He admitted during cross examination that he was a jealous and a possessive husband. The complainant's husband was also cross examined by the Crown and this issue of an affair, was only raised when he was drunk or he had been drinking. The matter was only raised in the context of a domestic dispute.

5. Counsel's submission in minimizing the damages. Shortly after the domestic dispute both the complainant and her husband attended the police station. Then they continued to live together as man and wife up to the date of the trial. Not much danger damage has occurred. 

6. Crown Counsel was not present when- the learned Magistrate gave his judgment on 19th August 2008. It seems like the learned Magistrate used the incorrect bench mark. He used the figure of $1,000.00 from the criminal defamation fine; when he came to assess the damages for this case. In using that bench mark the learned Magistrate equates the statement as of a criminal nature, warranting a penalty at the maximum level. The defamation in this case was not close to criminal, it was trivial- and was based upon a mistake. There was also a limited audience the husband. In context the husband admitted it was not true. It was a domestic dispute and they continued to cohabit as man and wife. Damages are excessive. I also seek costs in this case. 

When Mr Kefu had concluded his submission the court clarified the original claim in this case was $5000.00- and the Magistrate allowed only $1,000.00 as his assessed damages; with court costs of $600.00 against these three Appellants. 

The Respondents Oral Argument 

In response to the Appellant's formal application, Mr Fifita argued- that good reputation is a definitive right, and family is the most important unit in society. Mr Fifita argued that during the whole time, and during the course of the trial the first appellant did not go and apologise to the respondent. The respondents counsel stated the apology has never been done. When the respondent was taken to the police station, she said "I will press charges for ruining my reputation." Saying this in front of her husband is not right. There must be love, he is possessive and he is jealous. Family needs love. From the findings of the Magistrate as my learned friend pointed out the respondents counsel says $1,000.00 is the correct amount. There was no cross appeal and an award of over $1,000.00 would be more appropriate, plus court costs. It was a lenient award in this case. When the learned Magistrate was using his discretion- he accepted in the Tongan Community and he assessed damages to a Tongan woman. He dismissed with costs. 

In response to a question from the bench, on the level of costs awarded in the lower court, counsel for the respondent confirmed the trial was in fact adjourned from time to time. 

Mr Kefu Responded

Counsel raised the point that the question raised concerning an apology was in the transcript. The reason the appellant did not apologize at the time, was because the respondent was very emotional and the apology would have had no effect. Shortly after that the appellant thought an apology would not be accepted- and anyway-counsel did mention the apology in his submission to the Magistrate in the lower court. The respondent was too emotional she was agitated and that is why no apology was offered by the first appellant. 

THE COURT ASKED- if either counsel was able to assist it in determining - how many times this particular case has been adjourned in the lower court before and during the trial. Mr Kefu's record revealed from his records- there were six adjournments prior to the trial; and then ten adjournments during the trial until the final ruling. 

I heard oral argument from both counsel for the appellants and the respondent in this matter on 13th January 2009 and reserved my Judgment until 09.30 hours on the 20th January 2009. Though I accept the Appeal is only against the level of the award of damages, not on the Magistrates findings, or the award of costs in the lower court some comment on the merits of the case are definitely warranted. 

I have considered carefully all that was said by counsel in their submissions to the Supreme Court and I have studied carefully all the paperwork submitted from the lower court. I am also grateful to counsel for assisting me in identifying an area which I feel needs urgent reform and modification. That is to say I am greatly concerned that there were many delays in the trial of this matter in the lower court. There have also been delays in bringing this case from the lower court to the Supreme Court for the appeal. In my view this matter should have been dealt with- a long time ago; again I consider the maxim-justice delayed is justice denied. 

Defamation - Defamation Act Cap 33 

Section 2(1) 
• Defamation of character consists of- in speaking or in writing printing or otherwise putting into visible form, and matter damaging the reputation of another, or exposing another to hatred, contempt, or ridicule, or causing him to be shunned.  

Section 2(2) 
• The reputation by any person of defamatory matter concerning another also constitutes defamation of character.  

The Evidence 

Applying the facts of the case to the law- the evidence in the lower court reveals that:- 

• In this case on the 13th May 2008, two police officers attended the home of both the respondent and her husband as a result of a domestic dispute. 

• The lower court was told the respondent had had an argument with her husband VA'IANGA MALUPO, which happened sometime during the evening/ night. 

• The respondent said her husband threw something at her van and as a result of that she called the police to her home, for help. 

• When the police officers arrived at the scene, they were said by the respondent to have asked her the defamatory question, i.e. whether I (the respondent) was the one that had been served with the summons, but kept on running away for the court case. 

• The officer also asked whether I am the one (respondent) staying in a defacto relationship with the bald head guy. 

And in evidence in chief- the respondent says 

• My husband then attacked me, and he said- 

• LOOK AT WHAT YOU ARE DOING. This the respondent claims was defamatory and warranted damages claimed at $5,000.00PA (The claim)

• The respondent accepted they (husband and wife) went voluntarily to the police station, she said to the lower court- the difference with her husband- was compromised. 

• The respondent told the Magistrate at the police station she spoke to the Inspector on duty, and she said the Inspector's answer was that the most satisfying thing for her to do- was to lay charges. He was not called to test the truth of that statement. 

• The respondent says she still has problems with her husband because, he thinks she is having a relationship with someone. (to the date of trial) 

• The respondent told the lower court- she felt ashamed of the lie. 

• The respondent told the court a man called PILA TOKI was present when the police officer was defamatory. 

• The witness PILA TOKI was not called as a witness to give evidence at the trial in the Magistrates Court. 

The Husband's Evidence  

Vaiinga Malupo 

The witness is 49 and a pig seller. He told the Magistrate he married the respondent in 1978 and they have 13 children. He told the lower court, he was upset in thinking that what happened-was true. He told the lower court in the evening he argued with Lavinia, and as a result she called the police and two police officers came over to their home. He said while the officers were talking with PILA TOKI; the first defendant asked his wife Lavinia whether she was the one served with a summons, and kept running away. He clarified to the court- it was about her complaint against the bald head guy who she stayed in a defacto relationship with. The witness said he was really upset thinking that he was staying with his wife, and at the same time she was haying a defacto relationship with another man. He said he was really mad at his wife. The court asked the reason why they had separated so many times, the husband replied- whenever he went out they fought. The court record is silent on whether the respondent and or her husband admitted drinking on the day in question. 

The Police Officer's Case  

Kautai Taunauta 

Is a serving police officer and he has worked for 15 years in the Criminal Investigation Department. He testified that he did not intend to defame LAVINIA with the question he asked at the scene. He said he only asked the question because he had heard her name was LAVINIA MALUPO, which name also related to a different person. The officer went on to explain to the court in his testimony- that he was looking for a different LAVINIA, the reason for asking what he said- was he heard that the respondent's name was Lavinia Malupo. No one called the other officer who attended the scene on the 13th May 2008, with PC TAUNAUTA to give evidence of the respondents demeanour- or the effect of the words spoken to the respondent- or to her husband. 

At Common Law 

I need to remind everyone; that every citizen has a duty to assist the police in their investigations into allegations of crime(s) and the preservation of peace in the community. That duty also extends to assisting each and every one of the Kingdom's law enforcement officials- who are trying to trace suspects involved in crime, and the duty also extends to help assist law enforcement officials attempting to identifyingsuspects for the serving of court process on any person who is or may be resident, or domiciled within the Kingdom, be it by way of assisting in serving any lawful warrant, summons, witness subpoena or writ on any such person. 

This matter may have been complicated further- and more substantially, if it was revealed during the trial that there were in fact two persons with the same name of LAVINIA MALUPO. What if one of those persons was in fact living with a man with a bald head; just as the officer alleged and that was the only way to trace her. Would that not then have then been a perfectly reasonable question for any officer to ask of any honest citizen under common law? 

Both the lower court and the Supreme court were told that there was an altercation at the home of the respondent at the night in question; and that the respondent called the police to her home- because of the actions of her husband. The evidence in the lower court reveals two police officers attended the respondent's home address as requested by the respondent to investigate her complaint against her spouse. 

I do not know and the record is silent- if either of the two officers had had prior dealings with this respondent prior to the incident on the 13th May 2008. That would be a central question. I do not know if the officers carried out any CRO or warrant checks, when they were present at the scene. 

The court record is also silent on the question of whether the respondent or her spouse had consumed any large quantity of alcohol; but I was told by Mr Kefu in the appeal- that they had and that is not shown on the court record. History proves in almost all domestic disputes, tempers run high, and people are unreasonable and the police have a difficult job to do to keep the peace whenever alcohol is involved. Essentially the court record does not reveal any evidence of the state of intoxication or not, of the respondent and her husband, and that is disappointing because it is very material in considering an award for damages. In my view the court should have enquired into this the effect of alcohol- of its own volition and recorded same accurately, this was not done in this particular case. 

Much has been said by Mr Fifita of the sanctity of the family unit and I fully agree, but a cohesive family unit does not easily separate at a whim as the evidence in the lower court reveals. The Tongan tradition is to work together in order to settle disputes. 

Conclusion 

As an Appellant Judge I come to this conclusion- that I believe this police officer the first appellant who has 15 years' police service when he said in his evidence in the lower court that he did not intend to defame the respondent. From what I have been told, and I accept from an analysis of the evidence- it reveals quite, clearly the said defamatory words used were demimeos. 

Applying the case of Pa'ila v Ma'u (2002) Tonga LR 114 which states - a Higher Court will only interfere with the factual findings of a lower court in the clearest of cases- for example if the appellant court was able to conclude the Magistrate's decision was unsound- or that the Magistrate clearly came to the wrong conclusion. 

In this particular case I find that the decision of the Magistrate was unsound- and accordingly I will allow the appeal against the quantum of damages as assessed by the Magistrate in August 2008.  

In my view this is a very low level defamation case. I justify my decision- because every police officer has a sworn duty to protect and keep the peace. Every police officer has the legal right to look for suspects, to trace persons wanted for offences, and serve process according to law.

I fully accept and I agree with Mr Fifita that the Tongan tradition is that an apology is usually offered by any wrongdoer, and an apology is usually accepted- in true Tongan tradition. In this case the respondent said she spoke to the officer in charge of the police station and the officer suggested the respondent should lay charges; and that is exactly what the respondent did. 

If that was the case then if the officer were to apologize later, then one side to the dispute may construe any attempt to apologize, as either attempting to pervert the course of public justice; or as an admission of liability. 

For all the above reasons this appeal against the level of damages awarded by the Magistrate on the 19 August 2008 in this case MUST be allowed. Because the circumstances reveal, this is a defamation case at the very lowest end of the scale; I must quash the order for $1,000.00 and go on to consider an appropriate amount of damage based upon the evidence before me. 

Because of the delay in this and other cases which have recently come to light, I will also see fit to recommend that in order to prevent what I will call inordinate delay's occurring in the lower courts, through unnecessary adjournments (as in this case with 16 such adjournments) that the appropriate authorities consider the question of imposing FIXED COSTS in the lower courts. 

Order 

• The decision of the lower court in relation to the quantum 330 of damages in this case in the sum of $1,000.00 as awarded by the learned Magistrate on 19th August 2008 is quashed. 

• I substitute an appropriate amount of damage which I assess at $25.00 (TWENTY FIVE PA'ANGA) 

• Costs of this appeal are awarded to the appellants- to be taxed by the Chief Registrar.