[1999] PNGLR 592

PAPUA NEW GUINEA

[supreme court of justice]

Henzy Yakham;
Pacific Star Pty Ltd trading as The National Newspaper;
The Independent State of Papua New Guinea;
Michael Nali; and
Castan Maibawa

v

Stuart Hamilton Merriam and Carol Merriam

waigani: hinchliffe, injia, kirriwom jj
3 July 1998; 30 July 1999

Defamation — Defences — Fair Comment — Truth — Qualified privilege: publication made in good faith for the public benefit — Defamation Act Ch 293, s 9(1)(b), s 10, s 11(1)(h); s 12. 

words and phrases – "demonic" – meaning of.

Facts

The plaintiffs, an American Christian Missionary couple with the Highlands Christian Mission based at Yakusa, Okapa in the Eastern Highlands Province, were ordered to leave the country by the government, following the husband's (Dr. Merriam’s) criminal conviction for sodomy involving a young boy from Okapa where the couple had spent 30 years. The couple challenged the deportation order in the National Court and also challenged eviction proceedings in the District Court instituted by the Highlands Christian Mission. These actions frustrated and delayed the government’s efforts to deport the couple. As a result, the Vice Minister for Foreign Affairs Mr. Nali, the Minister for Provincial Affairs and Member for Okapa in the National Parliament Mr. Maibawa, police officers and parole officers based in Goroka, directly involved in the deportation exercise made certain statements to Mr Yakham, a reporter with the National newspaper which were published in the newspaper on 7 February 1995. The statements described Dr. Merriam as a man of "demonic" character who manipulated the laws of the country to remain in the country, resisted efforts by the government to deport him by mobilising local followers and threatened to take revenge on those who put him in prison. Mrs. Merriam was also referred to in the statements indirectly under the reference "the Merriams". The trial judge found these statements were prima facie defamatory of the plaintiffs and found that the statutory defences of fair comment, and truth and qualified privilege were not proved by the defendants and awarded a total of K40,000 in damages against the defendants. The defendants appealed.

Held

1.	The defence of fair comment under s 9(1)(b) Defamation Act, Ch 293 applies to comments made by members of the public of persons who participate in public affairs. Good faith is not an element of this defence. The comments published in the present case made of the Merriams were made by political, executive and bureaucratic officials of the government, and not by ordinary members of the public. In our view, the defence of fair comment under s 9(1)(b), strictly speaking, may be available to ordinary members of the public who assume the public task of attacking or scrutinising the public conduct of persons who engage in public affairs such as members of local and national government legislatures, ministers of the state, public servants and the like: See Cameron v Consolidated Press Ltd [1940] S.A.S.R. 372. The public scrutiny by way of public commentary, by government officials who see it their legal, social or moral duty to scrutinise the public conduct of members of the public, citizens and non citizens alike, of all walks of life, and claim privilege or protection for their actions are matters properly falling within the ambit of s 11 (qualified protection or privilege). Therefore, we are of the view that the defence of fair comment under s 9(1)(b) was not applicable, in the given circumstances, to the third, fourth and fifth appellants. Likewise, it was not applicable in these circumstances to the first and second appellants who merely reported and published what they were told by the fourth and fifth appellants and other agents or servants of the third appellant. Their actions also fall within the ambit of s 11. The defence of fair comment under s 9(1)(b) and truth under s 10 of the Defamation Act were not applicable in the circumstances.

2.	In determining whether Dr. Merriam had any reputation left to be protected following his sodomy conviction, the court must look at the plaintiff in the eyes of ordinary right-thinking members of the community. The law protects the reputation, which a person possesses in the general community, and not the esteem with which he views himself.

3.	Although the statements were prima facie defamatory, the statements were privileged under s 11(1)(b) of the Defamation Act. That is, it was necessary for the defendant to show that the statements were made or published on a protected or privileged occasion. When the defendants established that the statements were made on a privileged occasion, the onus was then on the plaintiff to prove the absence of good faith or malice.

4.	The trial judge failed to consider the issue of whether the statements were made on a privileged occasion and whether the plaintiff had discharged their onus of proving absence of good faith or malice. This is a fundamental error.

5.	In order for the occasion to be privileged, the communication must be made in pursuance of a duty or on a matter in which there was a common interest in the party making and the party receiving the communication: Adam v Ward [1916-17] All ER 157 at 162. Where the communication is made in pursuance of a duty, the duty may be "legal, social or moral duty, to communicate it to the general public and it is in the interest of the public that the publication should be made": London Artists Ltd v Littler [1968] 1 WLR 607 at 619. Where the duty is legal, it is not difficult to ascertain. But where the duty is social or moral, it is not easy to ascertain and this means the judge must do the best he can.

6.	A criminal conviction generally and in particular a conviction for sodomy which was related to Dr. Merriam’s private morals and manners was undoubtedly related to Dr. Merriam’s work and character as a missionary of God’s word and his reputation as a faithful observer of God’s laws and the laws of the State. The conviction shattered that reputation and opened wide the doors for legitimate public criticism of his conduct. When it comes to scrutinising his conduct as a missionary of God’s word, he ought to be prepared to accept legitimate public commentary from members of the public especially, government officials who see it their public duty to comment on his conduct. These statements were made by people in government who had a direct interest in the public welfare of the people of Okapa and PNG on a matter, which seriously, as they believed to be in good faith, were of public interest.

7.	The occasion in which the statements were made by Mr. Nali, Mr. Maibawa, police and parole officers was privileged. This privilege extended to the National newspaper and its reporter in Mr Yakham because they also had moral and social duty founded on constitutional premises, to publish the statements in the interest of the public. Between them, their interests were mutual. Privilege enjoyed by the makers of the statements extended to the publishers whom the former authorized.

8.	The occasion for the publication being privileged, the onus was on the plaintiff to show that the defendants were actuated by malice against the plaintiff. This is a specific requirement under s 12 Defamation Act. It is founded on well established principles at common law. As we pointed out earlier in our judgement, the first fundamental error made by the trial judge was that His Honour failed to consider whether the statements were made on a privileged occasion. His Honour also then failed to consider whether the plaintiffs had discharged their burden of proving absence of good faith.

9.	The evidence showed that the statements were made or published on a privileged occasion and that they were made in good faith. The appeal is allowed.

10.	The adjective "demonic" generally refers to person whose actions and convictions are evil, wicked or ungodly. Whether a particular deed such as sodomy as evidenced by a criminal conviction for sodomy, in truth bespeaks of a "demonic" character is devoid of factual proof. The answer to the question of whether a conviction for sodomy of a missionary of God’s word is evidence of "demonic" character is also incapable of factual proof. This is because the word "demonic" has supernatural connotations which we humans have very little or no understanding of. When these and other similar kinds of questions arise in a religious setting, they are strictly religious or spiritual questions and they are best left to the individual Churches concerned to decide in accordance with their own tenets of faith. It is not the function of a Court of law to decide such religious questions.

Papua New Guinea cases cited

Rimbink Pato v Umbu Pupu [1986] PNGLR 310.
PNG Aviation Services Pty Ltd v Michael Thomas Somare N1493 (1996).

Other cases cited

Adam v Ward [1916-17] All ER 159.
Bik v Mirror Newspaper Ltd [1979] 2 NSWLR 679.
Blackshaw v Lord [1984] QB 1.
Cameron v Consolidated Press Ltd [1940] SASR 372.
Eyre v New Zealand Press Association [1978] NZLR 736.
Fountain v Boodle [1842] 3 QB 5.
Goody v Odhams Press [1967] 1 QB 333.
Horrocks v Lowe [1975] AC 135.
Kelly v Tinling [1865-66] LR 1 QB 669.
Krapp v Mcleod (1926) 58 DLR 605.
London Artists Ltd v Littler [1968] 1 WLR 607.
Lovelady v Sun Newspapers Ltd (1938) 59 CLR 503.
McPherson v Daniels (1829) 109 ER 448.
Polly Peek (Holdings) v Trelford [1986] 2 All ER 84.
Slim v Daily Telegraph Ltd [1968] 2 QB 157.
Truth (N.Z.) Ltd v Holloway [1960] 1 WLR 997.
Truth (N.Z.) Ltd v Holloway [1960] 79 NZLR 69.
Watson v Jones 80 U.S. 679 (1871).
Watt v Longsdon [1930] 1 KB 130.

Counsel

W Frizrell, for first and second appellants.
P Mogish, for third, fourth and fifth appellants.
G Sheppard, for respondents.

30 July 1999

By the court. This is an appeal against the decision of the National Court sitting in Waigani on 14 November 1996 which found the appellants liable for defamation and awarded damages to the respondents in the sum of K40,000.00. The Court apportioned 50% of the award to be paid by the first and second appellants and the other 50% to be paid by the third, fourth and fifth appellants. From this decision the appellants appealed to the Supreme Court in two separate appeals, which were jointly heard by us, by consent of the parties.

The first appellant (Mr Yakham) is a journalist employed by the second appellant (the "National" newspaper). The National is one of two major daily newspapers in the country, the Post Courier being the other one. The third appellant (the "State") is the principal/employer of the fourth appellant (Mr. Nali) and the fifth appellant (Mr. Maibawa). At the material time, that is on 7 February 1995, Mr Nali was the Vice Minister for Foreign Affairs and Trade assisting the then incumbent, Sir Julius Chan. Mr Maibawa was then the Minister for Provincial Affairs and Member for the Okapa open electorate in the Eastern Highlands Province, in the National Parliament. The first respondent (Dr Merriam) is the husband of the second respondent (Mrs Merriam). They are American citizens. At the material time, the Merriams were Christian missionaries with the Highlands Christian Mission based at Yakusa, Okapa, in the Eastern Highlands District. They had arrived in the country some 30 years back and helped set up the Church together with schools and other welfare institutions in the area.

On 19 March 1993, the National Court sitting at Goroka convicted Dr. Merriam on two separate counts of sodomy involving two young boys from Okapa and sentenced him to 5 years imprisonment on each count, to be served concurrently. On 29 April 1994, upon appeal by Dr. Merriam, the Supreme Court quashed one of the convictions but confirmed the other conviction and reduced the sentence for that one offence from 5 years to 3 years. On 27 September 1994, Dr. Merriam was released on parole and placed under the supervision of Parole Officers at Goroka. The parole term was to expire on 19 May 1996.

Whilst Dr. Merriam's parole term was still current, sometimes in July 1995, a decision was made by the Department of Foreign Affairs and Trade to deport Dr. Merriam and his wife. The principal reason for the deportation was the criminal sodomy conviction against Dr. Merriam. Efforts were undertaken by the department with the police to enforce the deportation order. The Merriams were physically removed from their home in Okapa and airlifted to Port Moresby. Eviction proceedings were also instituted by the Mission in the District Court at Port Moresby to evict the Merriams from their home at Okapa. Dr. Merriam defended this Court action. He also challenged the deportation order in the National Court. On 21 February 1995, upon application by Dr. Merriam, the National Court at Waigani temporarily stayed the execution of the deportation order, pending its decision as to the validity of the deportation order.

Mr. Nali and Mr. Maibawa were directly interested and involved in the deportation exercise. The actions of Dr. Merriam in delaying his deportation by resorting to, inter alia, court action was not well received by these two men. The National followed these events closely. Mr Yakham conducted investigations through telephone interviews with Mr. Nali, Mr. Maibawa and policemen and parole officers based at Goroka who were involved with the Merriams. The result of his interviews was published in the National on 7 February 1995. It is this article that was the subject of the defamation suit instituted by the Merriams. The full text of the article is:

"AMERICAN MISSIONARY COUPLE TO BE DEPORTED.

FOREIGNERS MUST ABIDE BY PNG LAWS", SAYS MINISTER

By Henzy Yakham

Port Moresby

An American missionary, couple who wanted to be buried here when they died, are under deportation orders issued by the government. Vice Minister for Foreign Affairs and Trade Michael Nali yesterday said he ordered the deportation last week of Stuart Merriam and his wife Carol. While the reason for the deportation was not given, Mr Nali said that foreigners were guests in Papua New Guinea and must abide by the country’s laws. Mr Nali, following advice from his department urged the couple to leave the country without causing unnecessary inconvenience to relevant government agencies enforcing the order. He declined to reveal reason but questioned the use of a missionary preaching (the word of) God when his actions are demonic on the other hand". The couple had been working for many years for the Highlands Christian Missions based at Yakusa in the Okapa area of the Eastern Highlands Province. Mr Merriam was convicted of sodomy and sentenced to five years imprisonment in 1992 and was released on parole last year. Government officers in Goroka alleged that Mr Merriam did not abide by the parole conditions and had even threatened revenge against those who put him in prison. The Merriams, who had worked in PNG for more than 30 years, had wanted to be buried here when they die, Eastern Highland’s Provincial Police Commander Samson Mapi said. Both in their 60s, they were arrested by Goroka Police and flown here last week, Mr Mapi confirmed. Following complaints from local people and their leaders, the Port Moresby District Court early last month issued a court order for the Merriams to move out of their house at Yakusa and leave PNG. On Jan 3, when Policemen from Goroka went to serve the court order they refused to accept it and instead mobilised some villagers to force the policemen to leave. The policemen returned the next day with reinforcements and the two were taken by helicopter to Goroka before being brought to Port Moresby under police custody. Before they were taken to Goroka, Mrs Merriam allegedly called the Prime Minister’s Office from Okapa and tried unsuccessfully to speak to the Chief of Staff Renagi Lohia, claiming that she was a friend of Sir Julius Chan. Yesterday, the Merriams' lawyer successfully sought a National Court order for their release from the police custody pending an appeal against their deportation. The couple could not be contacted yesterday. Okapa MP and Provincial Affairs and Village Services Minister Castan Maibawa expressed anger at the continued resistance of the couple to leave PNG. Mr Maibawa said he was totally disgusted at foreigners, especially those who were convicted of criminal offences who tried to manipulate the country's laws to remain here. The Minister said it was shameful of Dr Merriam to find loopholes in the laws of the land to remain even when convicted of a criminal offence. Mr Maibawa said such people had no place in PNG and should gracefully return to their country of origin".

In their statement of claim, the respondents claimed that those underlined passages in the article were defamatory of them either directly or by way of innuendoes.

At the trial the defendants admitted making or publishing the statements that were published in the newspaper. But they defended their statements based on certain defences provided in the Defamation Act Ch 293 namely, fair comment, truth and qualified privilege. But the trial judge found that these defences were not proven by the appellants and found them liable for defamation. They have now appealed against this decision.

The grounds of appeal in the two appeals are very detailed. We set them out below in full.

Grounds of appeal

We set out the grounds of appeal by the third, fourth and fifth appellants first because they are more elaborate. They are:

(a)	The learned Judge erred in law in finding that the third and fourth defendants concede that the words complained of are prima facie defamatory or defamatory per se.

(b)	The learned Judge erred in fact in finding that the third and fourth defendants concede that the words complained of are prima facie defamatory or defamatory per se.

(c)	The learned Judge erred in fact and in law finding that the third and fourth defendants conceded that the words complained of were defamatory per se contrary to the defences relied on by the third and fourth defendants.

(d)	The learned Judge erred in law in failing to consider all the grounds of defence relied on by the third and fourth defendants.

(e)	The learned Judge erred in law in finding that a statutory defence under the Defamation Act reverses the onus of proof in the Defamation Act on the party alleging lack of good faith.

(f)	The learned Judge erred in law in placing the onus of proof on the third and fourth defendants to show that the publication was made in good faith, contrary to s 12 of the Defamation Act.

(g)	The learned judge erred in law, in placing the onus of proof on the third and fourth defendants in respect of the defences of fair comment, truth, justification and qualified protection.

(h)	The learned judge erred in law in finding that the plaintiffs/respondents bore no onus of proof whatsoever as a consequence of the defences of the third and fourth defendant/appellants.

(i)	The learned judge erred in law in finding that the publications were not fair comment.

(j)	The learned judge erred in law in finding that the publications were not fair comment.

(k)	The learned judge erred in fact in finding that the publications were not fair comment.

(l)	The learned judge erred in law in finding that the publications were not made in good faith.

(m)	The learned judge erred in fact in finding that the publications were not made in good faith.

(n)	The learned judge erred in law in finding that the first defendant was angry and therefore that the publications were not made in good faith.

(o)	The learned judge erred in fact in finding that the first defendant was angry and therefore that the publications were not made in good faith.

(p)	The learned judge erred in law in finding the third defendant's comments in relation to the first plaintiff's observance of his parole conditions to be false and therefore defamatory.

(q)	The learned judge erred in fact in finding the third defendant's comments in relation to the first plaintiff's observance of his parole conditions to be false and therefore defamatory.

(r)	The learned judge erred in law in finding that it was not fair comment for Mr Nali to refer to the fact that Stuart Hamilton Merriam has been convicted of a sodomy charge.

(s)	The learned judge erred in fact in finding that it was not fair comment for Mr Nali to refer to the conviction of Stuart Hamilton Merriam had become "dead" two years after he had been convicted and sentenced on the charge of sodomy.

(t)	The learned judge erred in law in refusing that it was not fair comment for Mr Nali to refer to the conviction of Stuart Hamilton Merriam for sodomy two years after that conviction.

(u)	The learned judge erred in law in finding that the conviction of Stuart Hamilton Merriam had become "dead" two years after he had been convicted and sentenced on the charge of sodomy.

(v)	The learned judge erred in law in refusing an application for an adjournment by the third and fourth defendants to enable evidence to be given by a Police Officer relating to the resistance to arrest by the first and second respondents.

(w)	The learned judge erred in law in refusing to issue either a Bench warrant or a summons to assist the third and fourth defendants to provide evidence that the first and second respondents had resisted arrest.

(x)	The learned judge erred in law in finding that the conviction for sodomy is not evidence of a wicked and evil act on the part of Stuart Hamilton Merriam.

(y)	The learned judge erred in fact in finding that a conviction for sodomy is not evidence of a wicked and evil act on the part of Stuart Hamilton Merriam.

(z)	The learned judge erred in law in finding that a conviction for sodomy was not evidence that Stuart Hamilton Merriam was guilty of actions which were demonic.

(aa)	The learned judge erred in fact that a conviction for sodomy was not evidence that Stuart Hamilton Merriam was guilty of actions which were demonic.

(ab)	The learned judge erred in law in relying upon Leviticus 18:22 of the Holy Bible to find that Mr Merriam was not a "wicked or cruel person".

(ac)	The learned judge erred in fact in relying upon Leviticus 18:22 of the Holy Bible to find that Mr Merriam was not "a wicked or cruel person".

(ad)	The learned judge erred in law in relying upon the Holy Bible to define sodomy rather than relying on the law in and about the Criminal Code to define it.

(ae)	The learned judge erred in law in relying upon a religious text to define a criminal act rather than relying upon the law of Papua New Guinea contrary to his secular obligation sitting as a National Court judge under the National Court Act.

(af)	The learned judge erred in law in relying upon irrelevant proceedings known as OS 40 1995.

(ag)	The learned judge erred in fact in relying upon irrelevant proceedings known as OS 40/1995.

(ah)	The learned judge erred in law in assessing special damages when there was no evidence of such damages.

(ai)	The learned judge erred in fact in assessing special damages when there was no evidence of such damages.

(aj)	The learned judge erred in law in awarding the quantum of damages in the amount of that His Honour did.

(ak)	The learned judge erred in fact in awarding the quantum of damages in the amount that His Honour did.

The grounds of appeal raised by the first and second appellants are:

(a)	The learned trial judge erred in fact and law in finding that the statements made by the second and third appellants were defamatory which amounted to an innuendo for slander and libel.

(b)	The learned trial judge erred in fact and law in finding that the second and third defendants made all statements published in the National newspaper.

(c)	The learned trial judge erred in fact and in law in failing to consider the first, second and third appellants denial that the words complained of were prima facie defamatory.

(d)	The learned trial judge erred in fact and law in finding that Mr. Nali and Mr. Maibawa's comments relating to the appellants conviction was deliberate and malicious.

(e)	The learned trial judge erred in law in finding that the statement relating to Mr. Merriam's conviction was an insinuation or an innuendo directed to Mrs Caroline Merriam.

(f)	The learned trial judge erred in fact and law in placing too much weight on the fact that the respondents did not resist arrest.

(g)	The learned trial Judge erred in fact and law in finding that the words complained of as "his actions were demonic" were defamatory when the Court found that it amounted to abomination.

(h)	The learned trial judge erred in law in finding that words tend to lower the first respondent’s standing severely when as a result of the sodomy charge he had no or little reputation left.

(i)	The learned trial judge erred in law in finding that as a result of the publication the first respondent was shunned by people and former students and the words exposed the respondent to be hated, mocked, ridiculed, and gossiped about by the public without any supporting evidence.

(j)	The learned trial Judge erred in law in finding that the third appellant's comments in relation to the first respondent's observation of parole conditions were false and therefore defamatory.

(k)	The learned trial judge erred in fact and law in finding that the newspaper publication resulted in the first and second respondents’ lost of donors, not supported by evidence.

(l)	The learned trial judge erred in fact and law in awarding special damages not supported by evidence.

(m)	The damages awarded for loss of reputation and mental anguish by the learned trial judge was excessive and not in line with damages awarded in Papua New Guinea.

In total, there are fifty (50) grounds of appeal. Thirty-seven (37) of them are from the first and second appellants (hereinafter referred to as the "first appeal") and thirteen (13) are from the third and fourth appellants (hereinafter referred to as the "second appeal"). When argued before us, it became apparent that many of these grounds raise common issues and they can be dealt together. A close analysis of the grounds of appeal produces the following five categories:-

a.	Were the statements published in the daily National newspaper made by the third, fourth and fifth appellants?

b.	Were the statements complained of defamatory?

c.	Were the defences of fair comment, truth and qualified privilege made out by the defendants?

d.	Were damages proved and if so, were the damages awarded reasonable.

e.	Were any procedural errors committed by the trial judge?

We consider each of these five categories separately.

The grounds of appeal raise issues of law and fact. The principles governing the appellate Court’s power to review findings of fact made by the trial judge in a defamation case are found in a decision of this Court in Rimbink Pato v Umbu Pupu [1986] PNGLR 310.

1.	Were the statements published in the National newspaper attributed to agents or servants of the State or Messrs Nali and Maibawa made by them. Only ground (b) of the second appeal raises this issue but this ground was abandoned by the appellant’s counsel at the hearing of the appeal.

2.	Were the statements defamatory? Grounds (a), (b), (c), (p), (q), (u), (x), (y), (z), (aa), (ab), (ad) & (ae) of the first appeal and grounds (a), (c), (d), (e), (f), (g), (h), (I), (j) & (k) of the second appeal relate to this issue. There are four main allegedly defamatory statements attributed to four authors, the subject of the defamation suit (hereinafter referred to as the first, second, third and fourth statements respectively). They are:

(1)	Mr Nali: "While the reason for the deportation was not given, Mr Nali said that foreigners were guests in Papua New Guinea and must abide by the country's laws. Mr Nali, following advice from his department urged the couple to leave the country without causing unnecessary inconvenience to relevant government agencies enforcing the order. He declined to reveal the reason but questioned the use of a missionary preaching (the word of) God when his actions are demonic on the other hand."

(2)	Government Parole Officers in Goroka: "Government officers in Goroka alleged that Dr Merriam did not abide by the parole conditions and had even threatened revenge against those who put him in prison."

(3)	Policeman in Goroka (Mr Mapi): On Jan 3, when policemen from Goroka went to serve the court order they refused to accept it and instead mobilised some villagers to force the police men to leave."

(4)	Mr Maibawa: "Mr Maibawa said he was totally disgusted at foreigners, especially those who were convicted of criminal offences who tried to manipulate the country's laws to remain here. The Minister said it was shameful of Dr. Merriam to find loopholes in the laws of the land to remain even when convicted of a criminal offence. Mr. Maibawa said such people had no place in PNG and should gracefully return to their country of origin."

At the trial, both Mr Nali and Mr Maibawa gave their reasons for the government’s decision to deport the American Missionary. The reason was that Dr. Merriam was a convicted felon and prisoner of the State on parole. His continued presence at Yakusa and for that matter, in Papua New Guinea was not in the best interest of Papua New Guinea and the work of the Highlands Christian Mission in Eastern Highlands in view of the Board's desire to have him replaced. In other words, he was not a fit and trustworthy person to continue to carry out the work of God as a missionary amongst the people with whom he had lived with for over 30 years.

At the trial, the Merriams purported to separate these statements in an effort to show that they were false and defamatory. And the trial judge isolated these four statements and made separate findings on them in favour of the respondents.

As to the definition of defamation, the trial judge did refer to the definition contained in the Defamation Act which in our view is exhaustive. A defamatory matter is defined as an imputation concerning a person or a member of his family whether living or dead, by which the reputation of that person is likely to be injured; or he is likely to be injured in his profession or trade or other persons are likely to be induced to shun, avoid, ridicule or despise him. An imputation may be expressed directly or by insinuation or irony: s 2. Under s 2 of the Act, any defamatory imputation of a person that is actionable in tort against whoever publishes such imputation must be likely to bear the following consequences:-

1.	That reputation of that person is likely to be injured;

2.	That person is likely to be injured in his trade or profession;

3.	Other persons are likely to be induced to sun, avoid, ridicule or despise him.

The issue before the trial judge was "what reputation and character", if any, did Dr. Merriam have left following his conviction and imprisonment for the crime of sodomy that required protection.

In determining whether Dr. Merriam had any reputation left to be protected following his sodomy conviction, the court must look at the plaintiff in the eyes of ordinary right-thinking members of the community. As Professor Brown on the Law of Defamation, writes at p 38:

"A publication is defamatory, if it lowers the reputation of the plaintiff in the estimation of the right-thinking members of this society, that, if it has the tendency to or does injure, prejudice or disparage the plaintiff in the eyes of others, or lowers the good opinion, esteem or regard which others have for him, or causes him to be shunned and avoided, or exposes him to hatred, contempt or ridicule."

The law protects the reputation, which a person possesses in the general community, and not the esteem with which he views himself. As Gatley on Libel and Slander (8th Ed. 1981) states at p.102 para 222:

"A man's reputation is not the good opinion he has of himself, but the estimation in which others hold him."

As to whether the statements published were defamatory, the trial judge found that these statements were prima facie defamatory primarily because Mr. Yakham and the National "conceded that the words complained of are defamatory per se" or "prima facie defamatory." Counsel for the appellants in the first appeal submits that the trial judge erred when he found that it was conceded that the words were defamatory per se because no such concession was made at the trial by them. It is clear to us however that the thrust of the evidence at the trial given by Mr Yakham was that although the statements were prima facie defamatory, they were "fair comment and were for public benefit and ... in the public interest." In other words he conceded that the statements were prima facie defamatory but raised the defence of fair comment, and qualified excuse, protection or privilege. This position was confirmed by their counsel at the trial when in his written submissions, he submitted that "the words complained were published of the plaintiffs and the fact of them being prima facie defamatory is not contested." (see Appeal Book p.172). Therefore, we find no error committed by the trial judge in this respect. We dismiss grounds (a), (b) & (c) of the first appeal. We also dismiss other related grounds of (p), (u), (x), (y), (z) & (aa), (ab), (ac), (ad) & (ae) of the first appeal.

It remains to be determined the grounds of appeal raised in the second appeal on this aspect namely 9a), (c), (d), (e), (f), (g), (h), (I), (j) & (k). At the trial, the Third, Fourth and Fifth Appellants denied that the statements were prima facie defamatory. However, we have no difficulty in concluding, as the trial judge did, that the four statements were prima facie defamatory. In respect of the first statement, its author (Nali) in his evidence admitted that to call the ways of a man of God "demonic" means his ways were "satanic" or derived from the "evil spirit." Whether the adjective "demonic" in the context of the sodomy conviction was a fair comment, true, or made on a protected or privileged occasion are matters of defence.

In respect of the second statement, it was proven at the trial by the plaintiff that the statement was false, in part only though, in that Dr. Merriam had not totally failed to comply with his parole conditions: see Parole Officer Paul Asiki's evidence. There was also no evidence from police officers in Goroka produced by the defendants to show that the Merriams threatened to harm those who put them in jail. These statements were also false. These statements were prima facie defamatory.

In respect of the third statement, again there was no evidence to show that the Merriams refused to accept the Port Moresby District Court's eviction order and mobilised some villagers to force the policemen to leave. This statement was proven to be false and therefore prima facie defamatory.

In respect of the fourth statement, it is also prima facie defamatory. The evidence of Messrs Nali and Maibawa given at the trial provided no basis to support the imputation that the Merriams were manipulating loopholes in the laws of the country to remain here.

The only issue before the trial judge and before us is whether any of the defences raised at the trial were proved.

Were the defences of fair comment, truth or qualified privilege made out by the defendants.

Grounds (d), (h), & (l) of the first appeal relate to the defences of fair comment, truth and qualified privilege. Grounds (e), (f), (l), (m), (n) & (o) of the first appeal relate specifically to qualified privilege and grounds (j), (k), (r), (s) & (v) of the first appeal relate to fair comment specifically. The essence of the submissions of the appellants' counsel in the second appeal is that because these statements were made in the context of Dr. Merriam's sodomy conviction, they were fair comments made for the public's information, that they were justified as being true, and were made on a privileged occasion for the public good in good faith. Counsel for the appellants in first appeal complements these arguments by submitting that the trial judge erred in shifting the onus of proving good faith on the first and second appellants contrary to s 12 of the Act; that His Honour erred in forming the view that the defence of good faith could not stand; and that the trial judge erred in saying it was not fair to refer to Dr. Merriam's sodomy conviction because that was the factual basis upon which the fair comment was founded. These submissions raise the defences of fair comment (s 9(1)(b)), truth (s 10) and qualified protection or privilege (s 11(1)(h)).

It is submitted for the respondents that the defence of fair comment, truth and qualified privilege were defeated by the fact that the statements of Mr. Nali and Mr. Maibawa were proved to be malicious and exceeded the limits of fairness pursuant to s 11(2)(b) and (c). It is also submitted for the respondents that the first appellant's sodomy conviction was not relevant to the Court proceedings instituted by the first appellant challenging his deportation order issued by the Department of Foreign Affairs and the eviction order issued by the Port Moresby District Court.

It is necessary to set out the relevant provisions in the Defamation Act, which relate to the defences relied upon by the appellants and considered by the trial judge. These provisions are Section 9(1)(a), (b) & (d)(iii); Section 10 and Section 11 (1)(h). We should also set out Section 12, which is relevant to the defence under s 11(1)(h) but was not considered by the trial judge.

9.	Protection: fair comment.

(1)	For the purposes of this Act, it is lawful to publish a fair comment –

(b)	Respecting –

(i)	the public conduct of a person who takes part in public affairs; or

(ii)	the character of any such person, so far as his character appears in that conduct;

(2)	Whether a comment is or is not fair within the meaning of this Act is a question of fact.

(3)	If a comment is not fair, and is defamatory, the publication of it is unlawful.

10.	Protection: truth. For the purposes of this Act, it is lawful to publish defamatory matter if it is true, and if it is for the public benefit that the publication complained of should be made.

11.	Qualified protection: excuse.

(1)	For the purposes of this Act, it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith-----

(h)	In the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.

(2)	For the purposes of this section, a publication is made in good faith if–

(a)	the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; and

(b)	if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and 

(c)	if the person by whom it is made –

(i)	is not actuated by ill-will to the person defamed, or by any other improper motive; and

(ii)	does not believe the defamatory matter to be untrue.

"12.	Good faith.

Where a question arises as to whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made in circumstances that would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith is on the party alleging the absence.

We will consider each defence separately.

a)	Fair comment (s 9(1)(b)

In respect of fair comment on a matter of public interest, at issue in this appeal are the following comments of the trial judge in his judgment:

"It is not disputed that Mr Merriam had been convicted of a sodomy charge. However he had gone through the legal process and had been punished for his wrongdoing. Was it fair then for Mr Nali to be referred to that charge again? In my view it was not fair. Mr Merriam already had his reputation and character adversely affected when he was charged with sodomy and eventually convicted and sentenced in March 1993. Was it fair then that some two years later Mr. Nali would resurrect a "dead" charge? In my view it is clear that Mr. Nali was simply frustrated that his attempts to deport the Merriams had failed after they successfully stayed his attempts to deport them through the Court. In my view it was deliberate and malicious on the part of Mr. Nali to say what he said whilst Dr Merriam reputation had been greatly eroded by his conviction of sodomy, he is in my view entitled to protect whatever little reputation he might have been left with."

The defence of fair comment under s 9(1)(b) applies to comments made by members of the public of persons who participate in public affairs. Good faith is not an element of this defence. The comments published in the present case made of the Merriams were made by political, executive and bureaucratic officials of the government, and not by ordinary members of the public. In our view, the defence of fair comment under S.9(1)(b), strictly speaking, may be available to ordinary members of the public who assume the public task of attacking or scrutinising the public conduct of persons who engage in public affairs such as members of local and national government legislatures, Ministers of the State, public servants and the like: See Cameron v Consolidated Press Ltd [1940] S.A.S.R. 372. The public scrutiny by way of public commentary, by government officials who see it their legal, social or moral duty to scrutinise the public conduct of members of the public, citizens and non citizens alike, of all walks of life, and claim privilege or protection for their actions are matters properly falling within the ambit of s 11 (qualified protection or privilege). Therefore, we are of the view that the defence of fair comment under s 9(1)(b) was not applicable, in the given circumstances, to the third, fourth and fifth appellants. Likewise, it was not applicable in these circumstances to the first and second appellants who merely reported and published what they were told by the fourth and fifth appellants and other agents or servants of the third appellant. Their actions also fall within the ambit of s 11.

b)	Truth (s 10)

This defence protects truthful publications made for the public benefit. Section 10 refers to factual truths, which can be proved by evidence. Much emphasis was placed by the trial judge on the first statement attributed to Mr Nali. His Honour said:

"Evidence is that the Merriams were missionaries and that they taught Bible at Yakusa. There is also evidence that Dr. Merriam was convicted of a sodomy charge. The article describes Dr. Merriam's actions as demonic. Given its ordinary meaning the words in my view are defamatory in that it imputes Mr Merriam's character and disposition to that of an evil spirit. The Oxford Learners dictionary defines a demon to be a "wicked or cruel spirit" and it is an informal way to refer to a person as a "demon". A person referred to, as a "demon" is a person thought to be "wicked or mischievous". When referred to Dr. Merriam's action as "demonic" it portrays an imputation that Dr. Merriam's actions are akin to a person who is wicked and mischievous. Evidence before this Court is that the Merriams are not wicked or mischievous persons. Much reliance has been placed on Mr Merriam's sodomy conviction charge the comments were true. While it is true that he was convicted on a single count of sodomy in my view does not entitle Mr Nali to refer to Mr Merriam as "wicked and cruel person". It is not true that his actions are demonic. His action is described in the Bible as an abomination (Leviticus 18:22). This means his actions were disgusting and detestable."

The truth of the criminal conviction recorded against Dr. Merriam was not in issue at the trial. It is the insinuation attributed to the criminal conviction, which was in issue.

The adjective "demonic" generally refers to person whose actions and convictions are evil, wicked or ungodly. Whether a particular deed such as sodomy as evidenced by a criminal conviction for sodomy, in truth bespeaks of a "demonic" character is devoid of factual proof. The answer to the question of whether a conviction for sodomy of a missionary of God's word is evidence of "demonic" character is also incapable of factual proof. This is because the word "demonic" has supernatural connotations which we humans have very little or no understanding of. When these and other similar kinds of questions arise in a religious setting, they are strictly religious or spiritual questions and they are best left to the individual Churches concerned to decide in accordance with their own tenets of faith. It is not the function of a Court of law to decide such religious questions. As the USA Supreme Court said in Watson v Jones 80 U.S. 679 (1871) at 732 — 733:

"The decisions of ecclesiastical Courts, like every other judicial tribunal, are final, as they are the best judges of what constitutes an offence against the word of God and the discipline of the Church. Any other than those Courts must be incompetent judges of matters of faith, discipline, and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt which would do anything but improve either religious or good morals."

In the present case, we consider that the trial judge erred in finding that it was not true that Dr Merriam’s actions were "demonic" according to the Holy Scriptures in Leviticus 15:27. In any event, we consider the defence of truth was not applicable in respect of the first statement in these circumstances because the matter sought to be proved was incapable of factual proof. Therefore, we dismiss the grounds of appeal relating to the defence of truth in respect of the first statement.

In relation to the other three statements, as the statements either partly or wholly were false, we do not think the defence of truth was available to the defendants. We also dismiss the grounds of appeal in respect of these three (3) statements.

c)	Qualified excuse: Statements made in Good faith for the public good (s 11(1)(h)).

The nature of the defence of qualified excuse or privilege under s 11(1)(h) is succinctly summarised by Sheehan J in PNG Aviation Services Pty Ltd v Sir Michael Somare [1997] PNGLR 515:

"It is for a defendant to prove that the publication was made on a protected occasion and that the duty or interest relied on by the defamation excused not just any publication he might make by the specific publication actually made. If the occasion is privileged or protected then prima facie any defamatory statements are excused ….

"The first task of the Court is to determine whether publication was made on such a protected occasion. This is largely a question of law, and what is actually said or the truth of it will not usually be relevant in determining whether the occasion was one of qualified protection .... But consideration of the facts and circumstances of publication including some, which are also aspects of good faith, such a relevance or extent, may also be necessary to determine if the occasion is protected....

Essentially the Court upon deciding such facts as may be necessary, must decide whether an occasion carries protection or not, before proceeding to consider the challenge of lack of good faith. Such a procedure follows the common law and the intent of section 11."

At the outset we consider that the trial judge failed to consider the first issue of whether the occasion was privileged.

This is a fundamental error. This error alone is sufficient to overturn the verdict but for purposes of clarity of the law on the subject of qualified protection or privilege, we will discuss the subject in some detail.

In order for the occasion to be privileged, the communication must be made in pursuance of a duty or on a matter in which there was a common interest in the party making and the party receiving the communication: Adam v Ward [1916-17] All ER 157 at 162. Where the communication is made in pursuance of a duty, the duty may be "legal, social or moral duty, to communicate it to the general public and it is in the interest of the public that the publication should be made": London Artists Ltd v Littler [1968] 1 WLR 607 at 619. Where the duty is legal, it is not difficult to ascertain. But where the duty is social or moral, it is not easy to ascertain and this means the judge must do the best he can. As Scrutton L.J. said in Watt v Longsdon [1930] 1 K.B. 130 at 144:

"As to legal duty, the judge should have no difficulty; the judge should know the law; but as to moral or social duties of imperfect obligation, the task is far more troublesome. The judge has no evidence as to the view the community takes of moral or social duties. All the help the Court of Appeal can give him is contained in the judgment of Lindley L.J. in Stuart v Bell [1891] 2 Q.B. 341, 350: The question of moral or social duty being for the judge, each judge must decide it as best he can for himself. I take moral or social duty to mean a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal.' Is the judge merely to give his own view of moral and social duty, though he thinks a considerable portion of the community hold a different opinion? Or is he to endeavour to ascertain what view ‘the great mass of right-minded men’ would take? It is not surprising that with such a standard both judges and text-writers treat the matter as one of great difficulty in which no definite line can be drawn. The judge must, accordingly, do his best in the light of such evidence as he has, coupled with his own views as to what the defendant's duties, moral or social, were in the circumstances."

Where the communication is made on a matter in which there was a common interest in the party making and the party receiving the communication, it is often said that there exists a community of interest between government officials and the press to communicate information of public interest to the public and a reciprocal interest in the public to receive that information. A classical statement of this principle is set out in the text Gatley on Libel and Slander 8th Ed. [1981] pp.239-240, para 562, where the learned author states:

"The publication of defamatory matter in a newspaper will be privileged where the matter published is of general public interest and it is the duty of the defendant to communicate it to the general public. If the matter is a matter of public interest, and the party who publishes it owes a duty to communicate it to the public interest, and the party who publishes it owes a duty to communicate it to the general public, the publication is privileged".

Similar views are expressed by McGregor J in Eyre v New Zealand Press Association Ltd [1978] N.Z.L.R. 736 at 740-741 in these words:

"In determining what is a privileged occasion all the circumstances under which publication is made need to be considered for the purpose of determining whether privilege attaches or not (London Association for Protection of Trade v Greenlands Ltd [1916] 2 A.C. 15; [1916-17] All ER 542; Macintosh v Dunn [1908] A.C. 390; [1908-10] All ER 164). It is necessary that it should be shown that both the givers and receivers of the defamatory information have a special and reciprocal interest in the subject-matter of such a kind that it is desirable as a matter of public policy in the general interests of the whole community that it should be made with impunity notwithstanding its defamatory nature (Ardreyevich v Kosovich [1947] 47 (S.R.) N.S.W. 357 per Jordan C.J. at p.363).

"Here the defendant is a disseminator of news to the public. The intention of the defendant in forwarding the messages to his associates was clearly to enable republication within their respective discretions. Although it honestly believed the reports to be true as originating from a highly regarded member of its network, I think this is beside the point. The plaintiff at a public meeting was speaking as a member of the Government stating at least his own views on a matter of intense public interest and concern. Such views were certainly a matter of concern to the public generally, and the views of the Minister were a matter of general interest to the community. It seems to me that a newspaper had a public duty to communicate information as to the Minister's views to its subscribers or readers, and such persons had a similar legitimate interest to receive such information. The same reciprocal interest would seem to me to exist as between the Press Association and the subscribers to its network, other newspapers or news agencies. In certain circumstances privilege would attach to publication to such subscribers". Also see Blackshaw v Lord (1984) QBI at 24-25.

It is the function of the press, both the private and State-owned press, in a democracy to provide its readers with news of current events of public interest. Likewise the public has a right to have access to that information. And it is the duty of the press to ensure as far as possible, that its reports on matters of public interest are reasonably accurate, fair, and objective. For a full discussion of these principles, we refer to the common law principles canvassed by McGregor J. in the New Zealand Court of Appeal case of Truth (N.Z) Ltd v Holloway [1960] 79 N.Z.L.R. 69 at 81-95, a decision which was affirmed on appeal by the Privy Council in Truth (N.Z) Ltd v Holloway [1960] 1 W.L.R. 997.

Our system of government is a constitutional democracy. Freedom of the press to communicate information of public interest to the public for the advancement of the general public welfare is fundamental to the development and sustenance of a free and thriving constitutional democracy. For this reason, s 46 of the Constitution guarantees everyone the right to freedom of expression and publication. Section 46(1) and (2) provides:

46.	Freedom of expression.

(1)	Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law–

(a)	that imposes reasonable restrictions on public office-holders;

or

(b)	that imposes restrictions on non-citizens; or

(c)	that complies with Section 38 (general qualifications on qualified rights).

(2)	In Subsection (1), "freedom of expression and publication" includes-

(a)	Freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and

(b)	Freedom of the press and other mass communications1 media.

(3)	Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications1 media for interested persons and associates--

(a)	for the communication of ideas and information; and

(b)	to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs, and generally for enabling and encouraging freedom of expression.

To our knowledge, there is no statute specifically dealing with press freedom in this country. Section 11(1)(h), and s 12 of the Defamation Act, which follow the common law, accord protection or privilege against defamation suit in respect of defamatory statements, published not only in the exercise of person's constitutional right to freedom of expression and publication but also in pursuance of one's legal, social or moral duty to publish information of public interest, for the information of the general public.

In the present case, there was no dispute at the trial and rightly so, that a Christian missionary or preacher of God's word is the holder of an office of a public nature and as such his conduct, both public and private conduct, which related to his work, are matters of public interest on which open public discussions and criticisms are permissible: see Kelly v Tinling [1865-66] L.R. 1 QB 669. A preacher of God's word is or ought to possess characters of the highest spiritual, moral and ethical order in the community. Just as much as his public conduct is subject to public scrutiny, his private morals, habits, nature and convictions, which relate to his conduct as a missionary or preacher of God's word is open to legitimate public commentary.

Defamation is about reputation previously enjoyed for the "law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess": McPherson v Daniels (1829) 109 E.R. 448 at 451. Also see Flemming on The Law of Torts 7th Edn. [1987] at p.569.

A criminal conviction is the result of a public court hearing — it is a matter of public knowledge. A criminal conviction "stand in a class by themselves. They are the raw material upon which a bad reputation is built up and it is accepted by people generally as giving the best guide to his reputation and standing in the community": Goody v Odhams Press [1967] 1 QB 333 at 340-341. Until the conviction is removed by a court of law of competent jurisdiction, the conviction destroys the person's reputation as a law-abiding person of the laws of the State for the rest of his life. And where a criminal conviction which relates to the private morals is recorded against a Missionary of God's word, the conviction shatters his reputation as a faithful observer of God's laws as well. Generally speaking the laws of the State seek to follow the laws of God: See the Holy Bible Romans 13:1-5. Both God's laws and the laws of the State seek to promote and protect the moral and social well being of the people of the State.

A criminal conviction generally and in particular a conviction for sodomy which was related to Dr. Merriam’s private morals and manners was undoubtedly related to Dr. Merriam's work and character as a missionary of God’s word and his reputation as a faithful observer of God’s laws and the laws of the State. The conviction shattered that reputation and opened wide the doors for legitimate public criticism of his conduct. When it comes to scrutinising his conduct as a missionary of God's word, he ought to be prepared to accept legitimate public commentary from members of the public especially, government officials who see it their public duty to comment on his conduct.

The four statements attributed to Messrs Maibawa, Nali, Mapi and other officers of the State should be viewed in their total context and purpose. It would be contrary to well established principles for the Court to nit-pick a particular statement out of its total context and purpose and decide whether that statement was made on a privileged occasion and made in good faith. As Lord Denning, MR said in Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 168-169:

"Now the ordinary reader takes the imputations as a whole. He does not divide them up into bits. Nor should the plaintiff be able to do so .... When the defendant comes to plead his defence he cannot select some of the imputations and reject others. Each must accept the words as conveying all such imputations as the jury thinks they bear, and make his claim or defence accordingly."

Also see Polly Peek (Holdings) v Trelford [1986] 2 All ER at 84, 100-102; Bik v Mirror Newspaper Ltd [1979] 2 N.S.W.L.R. 679 at 683: Raymond Brown, Law of Defamation in Canada [1987] Vol. 1 at p.14.

As government officials these men purported to discharge their lawful duties, to ensure that the laws of the country were observed and protected against criminal foreign elements, in this case, a Christian missionary whose moral character had been shattered by a sodomy conviction involving a member of the very community he worked for. These statements were made by people in government who had a direct interest in the public welfare of the people of Okapa and PNG on a matter, which seriously, as they believed to be in good faith, were of public interest. Dr. Merriam's conduct undermined the good work of missionaries being carried in his own Church. His own Church was seeking to evict him from the Church premises and deport him following the sodomy conviction. Therefore, Dr. Merriam's efforts to remain in the Church premises at Okapa and in the country at all cost, were seen by them and legitimately so, to be in bad taste.

All those men no doubt fall into the category of public officials whose public legal and social duty it was to comment upon, on a matter of public interest. Also, given Dr. Merriam's moral standing following the sodomy conviction, it was also their moral duty to do so. It was their collective duty to communicate such information of public interest, to the people of this country, through every available medium of communication at their disposal, be they State-owned or privately owned. And the public had a legitimate interest and constitutional right to receive that information.

Indeed it was not in issue at the trial that Mr. Nali, Mr. Maibawa, police and parole officers at Goroka had a legal as well as a social and moral duty to the people of Okapa and Papua New Guinea to make the statements to Mr. Yakham, for publication of the same to the public at large. It was also not in issue at the trial that the National had a social and moral, if not constitutional duty, to report the matter to the public at large. Further, it was not in issue at the trial that the subject matter of the information was a matter of public interest in which the press had a duty to communicate it to the public, which had an interest to receive that information. The occasion in which the statements were made by Mr. Nali, Mr. Maibawa, police and parole officers was privileged. This privilege extended to the National newspaper and its reporter in Mr Yakham because they also had moral and social duty founded on constitutional premises, to publish the statements in the interest of the public. Between them, their interests were mutual. Privilege enjoyed by the makers of the statements extended to the publishers whom the former authorised: see Lovelady v Sun Newspapers Ltd (1938) 59 C.L.R. 503 at 523, per Dixon J.

In these circumstances, in our view, the statements seen in their total context and purpose were made on a privileged occasion.

The occasion for the publication being privileged, the onus was on the plaintiff to show that the defendants were actuated by malice against the plaintiff. This is a specific requirement under s 12. It is founded on well-established principles at common law. As we pointed out earlier in our judgement, the first fundamental error made by the trial judge was that His Honour failed to consider whether the statements were made on a privileged occasion. His Honour also then failed to consider whether the plaintiffs had discharged their burden of proving absence of good faith. In our view, this was also another fundamental error, which vitiated the trial judge's entire approach to the consideration of this defence. We have no hesitation in overturning the verdict for this reason as well.

Alternatively, we do not think a finding of the absence of good faith or malice was open on the evidence before the trial judge. Good faith is defined by s 11(2). The rationale behind shifting of the onus of proof of absence of good faith on the plaintiff, is explained by Lord Finlay in Adam v Ward [1916-17] All ER 159 at 162 as:

"The law of privilege is well settled. Malice is a necessary element in an action for libel, but from the mere publication of defamatory matter malice is implied, unless the publication were on what is called a privileged occasion. If the communication were made in pursuance of a duty or on a matter in which there was a common interest in the party making and the party receiving it, the occasion is said to be privileged. This privilege is only qualified, and may be rebutted by proof of express malice."

In Canada, in Krapp v Mcleod (1926) 58 D.L.R. 605 at 606, Middleton JA speaks of a presumption of malice created by the publication of a defamatory matter. This presumption is removed once the defendant shows that the occasion was privileged. The onus then shifts to the plaintiff to prove the existence of actual malice if he is to succeed.

Section 12 requires the plaintiff to prove the absence of good faith. The common law from which s.12 is derived requires proof of express or actual malice, which may be express or implied. There are many cases, which establish this principle, but it is sufficient to quote various statements of this principle by several Lordships in the House of Lords decision in Adam v Ward ante. Lord Finlay states at p.162:

"It is further for the judge to decide whether there is any evidence of express malice fit to be left to the jury--that is, whether there is any evidence on which a reasonable man could find malice. Such malice may be inferred either from the terms of the communication itself, as if the language be unnecessarily strong, or from any facts which show that the defendant in publishing the libel was actuated by spite or some indirect motive."

Earl Loreburn at p.168 states:

"Strictly speaking, it is the occasion on which a statement is made that is privileged, and the phrase that such and such a statement is privileged, would be more accurately, though perhaps more clumsily stated, malice cannot be implied from defamatory expressions therein, but must be proved as a real fact. The malice to be proved must be real malice.....

Lord Atkinson at p.173 states:

"These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purposes of his vindication, though in fact it was not so."

Lord Diplock in Horrocks v Lowe [1975] AC 135 at 150 elaborates on what the plaintiff is required to prove in relation to careless or reckless statements, which are untrue, in these words:

"Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously term "honest belief." If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest," that is, a positive belief that the conclusions they have reached are true. The law demands no more".

In the present case, we are not satisfied that a finding of actual malice on the part of the appellants was open on the evidence. These government officials were faced with the difficult task of effecting the deportation of a foreign missionary couple, which for many years had lived and worked with the local people and developed strong links with them. Because of his sodomy conviction, his continued presence in the community was unwanted. By his own conduct, the key person, Dr. Merriam, had proved himself to be a man of criminal disposition, having been convicted of a serious crime which related to his private moral character, despite his many years of standing as a Christian missionary of God's word. As a result of the criminal conviction, his previous reputation as a law-abiding person of the laws of the State and God and professed godliness, which he had worked so hard over for many years had been destroyed. His continued presence in the Okapa community and in the country posed a risk to the welfare of the victim of his crime, the people with whom the victim related to in the local community at Okapa, his own Church and his Christian followers and the people of Papua New Guinea. The government considered his continued presence in the country to be undesirable and took lawful steps to have him removed from the country. His own Church also took steps to have him evicted from the mission premises. If, as he asserted at the trial, had any good sense left in him, any right-thinking ordinary person, in particular any right-thinking Christian follower of his mission, would have expected him to leave the country quietly and gracefully. Instead, he challenged the eviction proceedings in the District Court and his deportation order in the National Court. Those men therefore owed a duty to the public to explain to the people of Papua New Guinea, why it was that Dr Merriam continued to stay in this country. In these circumstances, the comments made by Mr. Nali, Mr. Maibawa and police and parole officers in Goroka, taken as a whole, were relevant and reasonably sufficient for the occasion. These men had no other motive or personal interest to pursue at the expense of the Merriam's removal. Whilst we do agree with the trial judge that the statements attributed to Mr. Nali and Mr. Maibawa were made deliberately out of frustration, we do not think they were actuated by malice. Also, whilst we agree with the trial judge that certain parts of the statements attributed parole officers and other statements attributed to police officers were not true or inaccurate, in the absence of actual malice, they were justified by the occasion: Fountain v Boodle [1842] 3 Q.B. 5. Finally, we do not think Mr Yakham and the National maliciously published the defamatory statements. Whilst we accept that Mr. Yakham may have been a little careless in checking the accuracy of some of these statements attributed to parole and police officers in Goroka, we do not think they were actuated by malice in publishing the same.

For these reasons, we allow the grounds of appeal relating to this defence.

Were damages proved, and if so, were the damages awarded reasonable? 

In view of our decision as to the defence of qualified privilege it is unnecessary to consider grounds (ah), (ai), (aj) & (ak) of the First Appeal and (I), (k), (l) & (m) of the Second Appeal which related to this issue.

Were any procedural errors committed by the trial judge only the first appeal raised grounds which challenged procedural errors committed by the trial judge, namely grounds (v) and (w) where the judge refused an application for adjournment by the appellants to call witness Samson Mapi; and the trial judge's reliance upon proceedings in OS40/95 under grounds (af) and (ag). Again, in view of our decision on qualified privilege, it is unnecessary to consider these grounds.

Mrs Carol Merriam

The foregoing discussions relate to the trial judge's findings in favour of Dr Merriam. In respect of Mrs Merriam, whilst it is true that there is reference to the "Merriams" as a family unit of which Mrs Merriam is one and of which family Dr Merriam is the head, there is no specific reference to Mrs Merriam in person. The statements were primarily targeted at Dr Merriam's conduct in the context of the sodomy conviction. Therefore, Mrs Merriam's personal reputation was not affected. Even if they were prima facie defamatory of Mrs Merriam, the statements are privileged under s 11(1)(h) Defamation Act for reasons given. Her appeal suffers the same fate as Dr Merriam's appeal.

Conclusion

The upshot of the foregoing discussions is that whilst we dismiss some of the grounds of appeal in the two appeals as indicated in our discussions, on the whole, we allow both appeals and quash the judgment of the National Court. We order each party to bear their own costs.

Lawyer for the first and second appellants: Warner Shand.
Lawyer for the third, fourth and fifth appellants: Solicitor General.
Lawyer for the respondents: Maladinas.