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Abal v Anton Parau [1976] PNGLR 251 (10 June 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 251 - Tei Abal v Anton Parau 

[1976] PNGLR 251

N48

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TEI ABAL

V

ANTON PARAU

Waigani

Frost CJ

1-4 June 1976

10 June 1976

DEFAMATION - Defamatory words spoken in vernacular - Enga language - Common law rule requiring literal translation - Common law rule inapplicable - Proof of substance of words alleged sufficient.

DEFAMATION - Defences - Qualified privilege - Fair comment - Lack of good faith - Intrinsic evidence - Publication as fact not comment - Defence not established - Defamation Act 1962, s. 6 (1)[cclxxxiii]¹.

DEFAMATION - Defences - Plaintiff in circumstances not likely to be injured by publication - Serious nature of imputation - Defence not established - Defamation Act 1962, s. 19[cclxxxiv]².

In an action for damages for defamation brought by a member of Parliament and Leader of the Opposition in the former House of Assembly against another member of Parliament, arising out of words spoken by the defendant at a political meeting attended by a large crowd of villagers and spoken in the Enga language: the words alleged to be spoken were:

“Tei Abal is in the pay of the Europeans. He received two or three thousand dollars from them. That’s why he always supports provisional citizenship. The watch he is wearing was given to him by the Europeans. He is not fit to represent the people. At the next election he should be removed from the House.”

Held

(1)      Pursuant to Sch. 2(2)(1)(b) of the Constitution of the Independent State of Papua New Guinea, the common law rule which requires that where the words complained of as defamatory are in a foreign language the plaintiff must prove the actual words published and a literal translation thereof, is inappropriate to the circumstances of Papua New Guinea in cases in which the defamatory words are alleged to have been spoken in a vernacular which is not in ordinary usage reduced to writing and is not reasonably capable of being accurately recorded by the Judge in the language of the Court.

Semble the contrary view would mean that an action for defamatory words spoken in a vernacular of that kind could never succeed.

(2)      The common law rule was inapplicable in the circumstances of this case.

(3)      The words having been proved to have been spoken constituted a defamatory imputation of the plaintiff, within the meaning of s. 6(1) of the Defamation Act 1962.

(4)      As to the defences of qualified privilege and fair comment under ss. 14 and 15 of the Defamation Act 1962, there was intrinsic evidence of lack of good faith because the allegation of corruption was so extreme and went beyond the just requirements even of political controversy: it showed that the words were spoken with a dishonest intention of injuring the plaintiff, and were put forward not as comment but as fact.

(5)      As to the defence that the plaintiff was in the circumstances unlikely to be injured by the publication under s. 19 of the Defamation Act 1962, in the light of the evidence and the very serious nature of the imputation of bribery by Europeans, the defence had not been made out.

(6)      Damages should be assessed at K.1,000.00.

Trial

This was an action for damages for defamation.

Counsel

TEF Hughes QC and RHB Wood for the plaintiff

JA Griffin and AMB Crane for the defendant

Cur. adv. vult.

10 June 1976

FROST CJ:  This is an action for damages for defamation brought by the plaintiff, who was at the material time the Member for Wabag Open Electorate and the Leader of the Opposition in the former House of Assembly, against the defendant, who was the Regional Member for the Western Highlands. Both are members of the United Party.

The defamatory words are alleged to have been spoken by the defendant at a political meeting attended by a large crowd of villagers and other persons on Friday, 27th December, 1974 in the market place at Birip near Wabag in the Enga District, as it then was. Both the plaintiff and the defendant addressed the crowd in the Enga language. The words alleged to have been spoken of the plaintiff in the way of his office of Leader of the Opposition as set out in the statement of claim in English are as follows:—

“Tei Abal is in the pay of the Europeans. He received two or three thousand dollars from them. That’s why he always supports provisional citizenship. The watch he is wearing was given to him by the Europeans. He is not fit to represent the people. At the next election he should be removed from the House.”

Both the plaintiff and the defendant gave evidence and each called a number of witnesses. Whilst the defendant, a well educated man, gave evidence in English, the plaintiff and all other witnesses, except Tim Karapen who, called for the plaintiff, spoke in Pidgin, gave evidence in the Enga language which was interpreted in the usual way into English. It is convenient at the outset to deal with an objection raised by the defendant’s counsel for the first time in his final address, an objection which counsel submitted was fatal to the plaintiff’s claim.

The objection was that the statement of claim did not set out and the plaintiff did not call evidence as to the precise words complained of, that is, the words spoken in the Enga language, or evidence of the correct English meaning of those words.

The rule which is a rule of the common law of England is stated as follows in Gatley on Libel and Slander, 7th ed., to which counsel referred:

“If the libel or slander is in a foreign language, it must be set out in the same language and followed by a literal translation: it is not enough to set out a translation without setting out the original or vice versa.” (para. 987, p. 411).

“Where the words complained of are in a foreign language the plaintiff must prove the actual words published. He must also prove by an interpreter sworn as a witness that the translation given in the statement of claim is correct, unless this fact has been admitted ... The meaning of the words in English must be proved by a witness who can be cross-examined.” (para. 1207, p. 491).

Counsel also referred to William Bernhardt v. Benjamin Abrahams[cclxxxv]³ per Lord Dunedin at p. 751, Cook v. Cox[cclxxxvi]⁴ and The King v. Manasseh Goldstein[cclxxxvii]⁵. It seems that a foreign language means any language other than the language of the Court, and thus includes, for the purpose of this rule, Gaelic in Scotland (William Bernhardt v. Benjamin Abrahams[cclxxxviii]⁶) and the Welsh language in England. Gatley on Libel and Slander at p. 491, note 59.

It follows from William Bernhardt v. Benjamin Abrahams[cclxxxix]⁷ that the defendant is not precluded from raising the objection at any time during the hearing although it has not been pleaded or indeed for the first time on appeal.

It is true that the defendant’s counsel relied on the objection not so much as a fatal objection to the pleadings but rather to show the exactness with which the defamatory statement must be proved, particularly in instances where it is alleged to have been made in a language other than that of the Court. But once raised it must be dealt with. There is authority for the view that the Australian legislation upon which the Defamation Act 1962 is modelled is a complete repository of the principles of actionable defamation, although some modification of that proposition may be required. Fleming, The Law of Torts, 4th ed., 456-457, Clines v. Australian Consolidated Press Ltd.[ccxc]⁸ per Wallace P. at pp. 92-93, and the cases there cited. But it was not contended by the plaintiff’s counsel that that was a sufficient reason alone to render the common law rule inapplicable.

Counsel for the plaintiff gave a short answer. In his submission it was quite plain that the Enga language is not a language which lends itself to be put into English. He went on to refer to the occasions during the hearing when the defendant’s counsel questioned the interpreter as to the spelling and meaning of certain Enga words, to receive an answer indicating that certain sounds could not be denoted by the use of the English alphabet.

In the Constitution the languages of Papua New Guinea are referred to in the statement of the National Goals, in which under the heading “2. Equality and Participation” it is stated as a goal for “all persons and government bodies to endeavour to achieve universal literacy in Pisin, Hiri Motu or English, and in ‘tok ples’ ...”

A similar distinction between the accepted written and apparently unwritten languages appears to be found in one of the qualifications for citizenship by naturalization, which is ability to speak in “Pisin or Hiri Motu, or a vernacular of the country ...” Constitution, s. 67 (2) (c), s. 68 (2) (h). The only translation from Enga into English which was suggested by defendant’s counsel to have been made was a translation of the Bible by a School of Linguistics operating in Papua New Guinea, but the interpreter did not know of it or of any book written in the Enga language. There is certainly no suggestion that in any accepted form the Enga language is either generally written or read by Enga people who are literate.

The conclusion I have reached is that, pursuant to the Constitution, Sch. 2.2. (1) (b), the common law rule relied on is inapplicable because it is inappropriate to the circumstances of Papua New Guinea in cases such as the present in which the defamatory words are alleged to have been spoken in a vernacular which is not in ordinary usage reduced to writing and is not reasonably capable of being accurately recorded by the Judge in the language of the Court. The contrary view would mean that an action brought under the Defamation Act by a citizen for defamatory words spoken in a vernacular of that kind could never succeed.

I am accordingly unable to uphold this objection.

The defendant’s counsel also relied on a passage from Gatley on Libel and Slander which deals with libel, which is the publication of a defamatory statement by means usually of a document (para. 1209, at p. 491). It is there stated that “the defendant has the right to have the whole of the document read ... as part of the plaintiff’s case, as the context may correct, or materially qualify or mitigate, the actionable character of the passages complained of.” Whilst, as counsel conceded, the case of publication consisting of spoken words is necessarily different as there is no record available to which reference can readily be made for the entire statement by the person to whom the words were published, certainly the immediate context or such passages which bear upon the actionable character of those words must be put before the court.

The other main legal submission put by defendant’s counsel also related to the proof by the plaintiff of the words alleged to constitute the defamatory statement. The defendant’s counsel referred to The Producers’ and Citizens’ Co-operative Assurance Company of Australia Limited v. Colonial Mutual Life Assurance Society Limited and Another[ccxci]⁹ in which Murray C.J. propounded a rule based on Tournier v. National Provincial and Union Bank of England[ccxcii]¹⁰. The rule is succinctly stated by Gatley as follows:

“Where oral evidence the only proof. In actions of slander, and in actions of libel where the oral evidence of witnesses is the only proof available, though precise words must be alleged in the statement of claim, it is no longer necessary for the plaintiff to prove that these precise words were in fact published. It is sufficient if he proves a material and defamatory part of them or words which are substantially to the same effect.” (para. 1214).

It is also necessary for the publication to constitute an actionable wrong under s. 29 of the Defamation Act that the words proved are defamatory under s. 6 (1) which is in the following terms:

“An imputation concerning a person, ... by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him, is a defamatory imputation.”

It is now necessary to turn to the evidence.

His Honour then considered the evidence from which it appeared that both the plaintiff and defendant were speaking to a large crowd from a platform and through megaphones, that the main subject of the plaintiff’s remarks was the question of expatriates being forced to leave the country and the setting up of a committee to determine which expatriates should leave.

The defendant then spoke telling the people that the plaintiff was in favour of expatriates because he was given $3,000.00 and a watch, that he was not actually doing his work as a member and was getting money from the Europeans and the plaintiff then replied, showing the people his watch and telling them that it was bought with his own money and that the allegations of receiving money were false.

In determining whether this evidence is capable, if accepted, of proving a material and defamatory part of the words set out in the statement of claim, or words which are of substantially the same effect, (the issue is to be so confined because the defendant’s case was a complete denial), I should refer first to the submission by the defendant’s counsel that the evidence is so conflicting as to be inadequate to demonstrate the context in which the words were said. A distinction is to be drawn, in my opinion, between the introductory and general remarks made in the course of the speech, some of which might well have faded from the witnesses’ recollection as having less importance than the real issue in the case, and the immediate context in which the defamatory words were alleged to have been spoken. I consider that on the whole of the plaintiff’s evidence, if accepted, the immediate context shown was the plaintiff’s support of keeping the Europeans in the country and also by means of the grant of provisional citizenship, and that context is substantially the same as that referred to in the statement of claim.

It is true that although in the statement of claim provisional citizenship is referred to as the subject of the meeting no evidence was called as to the nature of the proposals. Yet it is clear that the plaintiff was referring to provisional citizenship as being granted not to the indigenous people who would automatically become citizens but to Europeans and as a measure which he was supporting to keep them in the country.

The defendant’s counsel said that it would be using a broad brush indeed if the court applied the rule that only words substantially to the same effect as the defamatory words need to be proved if it was found that there was sufficient evidence of the defamatory statement. However, I have reached the conclusion that the body of the evidence called by the plaintiff supported by the words he wrote in his diary, if accepted, is capable of providing proof that the defendant said of the plaintiff in that context that he was in favour of expatriates and provisional citizenship because he had been given $3,000.00 and a watch by Europeans.

Whether the plaintiff has proved that defamatory words to that effect were spoken by the defendant depends on the whole of the evidence. [His Honour then considered the evidence relating to the full speeches of both parties.]

There was thus a complete conflict between the two groups of witnesses called by each party. However, it does not follow, nor was it submitted by the defendant’s counsel, that that was sufficient a reason without more to throw such doubt on the claim as to lead to its dismissal. If that was the way in which the case should be approached few prosecutions or civil claims would succeed in certain parts of the country where the pattern of the present case is a familiar one. The Court’s duty always remains of examining the whole of the evidence to determine whether the claim has been proved on the balance of probabilities.

So far as the plaintiff’s case is concerned, whilst there were certainly discrepancies between the witnesses, having regard to the lapse of time since the meeting and the measure of recollection of witnesses which a judge encounters throughout the country it would be unusual if these did not occur. It is also likely that the witnesses drawn from these country parts and without the advantage of education would tend to concentrate upon what they felt were the important things said at the meeting, of which the allegation of the acceptance of bribes by a leader would clearly be one, with the less important details pushed to the background of the mind. However, so far as the defendant’s witnesses are concerned their complete denial of the mention of the watch leads me to doubt their account so natural and convincing was the plaintiff’s demonstration of the way in which he referred to it.

On the whole I have reached the conclusion that on the facts I should accept the evidence of the plaintiff supported as it is in substance by the evidence of his witnesses. I do so for three main reasons. The first is that the plaintiff’s evidence carried the ring of truth, particularly his spontaneous reply to the defendant in which, as I have indicated, pulling up his sleeve and showing his wrist-watch he denied that he had ever taken money and said that the watch was bought with his own money. I accept also his denial that he told the crowd that in the letter the defendant had said that the plaintiff was in favour of expatriates because he had been given money by them. On the evidence of the plaintiff the letter contained no such reference and the defendant denied ever making such a statement. Having heard the plaintiff in the witness box I am quite unable to accept that he would have engaged in such a deliberate deception.

Secondly, there is the entry in the plaintiff’s diary which having been called for in the course of cross-examination the defendant’s counsel did not dispute was admissible in evidence. In that entry which the plaintiff said he made in the truck after the meeting it is noted as translated from the Pidgin that, “... Anton said Tei received $3,000 and a watch. The Europeans gave and he supports all Europeans and passed (the National Parliament) provisional citizenship ...” I am again quite unable to accept the explanation put forward by the defendant and his counsel that the entry was manufactured by the plaintiff as false evidence for the purpose of proving a court case planned against the defendant or that the words were misheard. A mistake in hearing is unlikely as both speakers used a megaphone and spoke from the same platform.

The third reason, and it weighs much with me, is that having heard the defendant give evidence upon the issue as to whether the alleged defamatory words were spoken and upon the crucial issues in this case I regret to say that I was unable to accept that evidence. I found his evidence also unsatisfactory on a number of matters including those brought out by the plaintiff’s counsel in his final address particularly the tell-tale query, how much was it publicized? I also attach weight as touching on the defendant’s credibility to the evidence of Ikifae that on a date after the meeting when he met the defendant on the road the defendant said that it was all right if he did not go to court because if the plaintiff lost the case the witnesses were more than likely to go to gaol.

I am, therefore, satisfied on the balance of probabilities that the defendant spoke the words I have referred to which are substantially to the same effect as the significant part of the defamatory statement set out in the statement of claim. The defendant’s counsel very properly conceded that if the words were said they constitute, within the meaning of s. 6 (1) of the Defamation Act, a defamatory imputation of the plaintiff.

Under the other defences of qualified privilege and fair comment pursuant to ss. 14 and 15 of the Act the question arises whether the words were spoken in good faith. (See in particular ss. 14 (1) (b) and 16 (1) (c), (e) and (h)). Counsel for the plaintiff upon whom the onus of proof rests on this issue relied upon an admission by the defendant that to say of the plaintiff he was corrupt would be a wicked thing, if it was said, as evidence of lack of good faith because it showed that the defendant had no genuine belief in the truth of the statement. Whilst it was an admission that the defendant later qualified it was in relation to events after the meeting so the force of the admission is undiminished. Defendant’s counsel submitted also that it would be wrong to impute lack of good faith to words spoken in heat at a political meeting. He then put forward on this part of the case and also in relation to the defence taken under s. 19 of the Defamation Act forceful submissions grounded, as he claimed, on social circumstances which are part of the fabric of the country. Section 19 provides as follows:

“In any case other than that of words intended to be read, it is a defence to an action or prosecution for publishing defamatory matter to prove that the publication was made on an occasion when and in circumstances in which the person defamed was not likely to be injured by the publication.”

Thus counsel submitted that whatever form the altercation between the defendant and plaintiff took it was part of a political struggle, that the people who were well able to identify false talk should be left to be the judge of the propriety of the things that were said, that it was unreal for this Court to be judging the propriety of one sentence said in the course of a verbal battle between political enemies, that a verdict for the plaintiff would have serious implications for the country for the Court could find itself deliberating on all manner of statements made at all kinds of meetings, that this country thrives on meetings which have been part of its mode of living for centuries before the English style Defamation Act was introduced. He submitted that s. 19 should be liberally applied, for if the defendant spoke falsely of the plaintiff at Birip the social system is such that the defendant’s reputation would be the one to suffer and not the plaintiff’s, and indeed the plaintiff’s reputation would ultimately be enhanced. He further submitted that there is no element in a case under the Act which is equivalent to the common law requirement of special damage and s. 19 was the one to reflect that common law rule. (The Act however applies to the publication of defamatory words generally. Also under the common law rule cases such as the present one are actionable without proof of special damage). He submitted that a chance remark which slips out in the course of a verbal battle at one of the meetings of this country is the type of statement which falls within the protection of s. 19.

These submissions, interesting though they are, however, go beyond the law of this country. To uphold them in their generality would be tantamount, as the plaintiff’s counsel put it, to the National Court tearing up the Defamation Act which is one of the statutes contained in the body of law adopted under the Constitution. As counsel for the plaintiff also strongly submitted, the remedies available under the Act are provided as a means for the citizens of this country to obtain redress at law in place of the old ways, often by violence, outside the law. In the present case the plaintiff said he came to Court, it is true amongst other reasons, because the defendant had made him “a rubbish man” and for that he is entitled to seek redress. No action involving politics can succeed unless an actionable wrong is proved.

Counsel’s submission also fails to take account of the tendency of the courts under the existing law “not to be over-critical as to the force or warmth of language used on a privileged occasion” (Gatley on Libel and Slander (supra) p. 522), and to allow great latitude in comment upon matters of public interest, unless the words go too far and there is evidence of lack of good faith, such as the imputation of corruption or dishonesty, which would appear to be a standard generally recognized in the community.

So far as the defences of qualified privilege and fair comment are concerned, in my opinion there is also intrinsic evidence of lack of good faith because the allegation of corruption is so extreme and goes so far beyond the just requirements even of political controversy. It shows that the words were spoken with a dishonest intention of injuring the plaintiff. Gatley on Libel and Slander (supra) paras. 1249, 1250, 1251; Salmond on The Law of Torts, 15th ed., pp. 226-227. Fair comment is also excluded, as the plaintiff’s counsel submitted, because the words spoken were not comment but were put forward as fact. Accordingly the burden of proof has been discharged by the plaintiff and these two defences fail.

There is also direct evidence in the witnesses’ reaction to the defamatory words which shows that the publication was not made in circumstances which fall within s. 19. I refer to the evidence of Tokapai that he thought the statement was true, and that he was rather unsettled when he knew that the plaintiff was accepting such items as money, and to the evidence of Tumu that the people in the group believed it. Ikifae said that he felt uneasy and talked about the subject later with several of the crowd, and although Miok said he did not believe any of it, like the other people he talked about it later and was very ashamed. On this matter the defendant agreed that the onus of proof was upon the defendant because the section is expressed in the form of a defence. In the light of the evidence and of the very serious nature of an imputation of bribery by Europeans I am not satisfied that the defence under s. 19 has been made out; indeed I would go further and hold that the plaintiff was likely to be injured by the publication.

For all these reasons the plaintiff’s action succeeds and he is entitled to an award of damages. I take into account, of course, that the defamation proved is as grave as could be made of any public figure, and such that the plaintiff was fully entitled to come to Court to vindicate his reputation. There is also the wide extent to which the imputation would have been broadcast among the Enga people. On the other hand there are the considerations that the defamatory statement was said once only on the plaintiff’s account — it was not repeated, and that it was on the probabilities said in the heat of the moment and seen to be so said by the crowd. I do not think that it was premeditated. I take also into account the level of earnings in Papua New Guinea, and that the award of damages is, of course, against the defendant personally. In all the circumstances I assess the damages as K1,000.00.

Judgment for plaintiff in sum of K1,000.00 with costs to be taxed.

Solicitors for the plaintiff: McCubbery Train Love & Thomas.

Solicitors for the defendant: Francis & Francis.

[cclxxxiii]Infra p. 255.

[cclxxxiv]Infra p. 258.

[cclxxxv][1912] S.C. 748.

[cclxxxvi](1814) 105 E.R. 552.

[cclxxxvii](1821) 129 E.R. 1260.

[cclxxxviii] [1912] S.C. 748 p. 751-752.

[cclxxxix][1912] S.C. 748.

[ccxc](1966) 84 W.N. (Pt. 2) (N.S.W.) 86.

[ccxci][1931] S.A.S.R. 244.

[ccxcii] [1924] 1 K.B. 461.