IN THE HIGH COURT OF SOLOMON ISLANDS
(Civil Jurisdiction)

Civil Case no. 42 of 2011

Mathew Cooper Wale
The Claimant

V

Danny Philip
The First Defendant

And

Alfred Sasako
The Second Defendant

And

The Attorney-General
(representing the Solomon Islands Government)
The Third Defendant

Hearing: 22nd August 2011
Judgment: 24 November 2011

A. Radclyffe for the Claimant
J. Muria (Jnr) for the First and Third Defendants
A.N. Tongarutu (Ms) for the Second Defendant

Palmer CJ: 

1.	This is an action for damages for libel by the claimant, Mathew Wale ("the Claimant") against Danny Philip ("the first Defendant"), Alfred Sasako ("the second Defendant") and the Attorney-General representing the Solomon Islands Government.

2.	He alleges that the defamatory material which was published by the Solomon Star on the 8th and 9th February 2011 and by the Island Sun on 9th February 2011, was contained in articles about an "intel report" which was released by Sasako. 

3.	At the time of the release of the report, Sasako was the Prime Minister's press secretary. His duties included the preparation and issue to the media of Government press releases and statements. 

4.	The intel report is dated 28th January 2011. There is no dispute that it contains serious and damaging allegations against the Judiciary and Wale as an MP, citizen of this country and the democratic process.

The Claim.

5.	The Claimant alleges that:

i.	the second Defendant distributed the intel report to Solomon Star and other media outlets;

ii.	the second Defendant intended that articles would be published about that report;

iii.	the report was prepared, issued and published by or on behalf of the Solomon Islands Government; and 

iv.	all the defendants were responsible for the preparation and / or publication or caused to be prepared and / or the publication of the various articles contained in the report by the media outlets. These included clauses 2(e) and (f); 3(i), (ii), (iii) – (v) and clause 5.

6.	The Claimant alleges that the words meant in their ordinary and natural meaning, the following:

i.	that the Claimant owes allegiance to a foreign power namely the Australian Government and not the Solomon Islands Government;

ii.	that the Claimant has colluded with representatives of the Australian Government and the Regional Assistance Mission to Solomon Islands (RAMSI) with the intention of effecting the fall of the First Defendant's government and the election of the Claimant as the Prime Minister; 

iii.	that in exchange for such collusion the Claimant would receive monetary and other benefits from the Australian Government; 

iv.	that the Claimant would be a party to the making of illegal payments to Members of Parliament in exchange for them supporting the Opposition;

v.	that the Claimant has colluded or conspired with member of the Judiciary of Solomon Islands and others in court cases involving a Member of Parliament.

The Claimant says that those words were calculated to disparage the Claimant in his capacity as a Member of Parliament and of the Opposition and to gain political capital for the first Defendant and his Government. In consequence the Claimant's reputation has been seriously damaged and he has suffered distress and embarrassment.

The law on libel

7.	The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. No action can be maintained for libel or slander unless the words complained of have been published. There must be a communication to a third party. 

8.	In determining whether words are defamatory there are two stages, first to decide what they mean, and then to decide whether it is defamatory. 

9.	A defamatory imputation has been defined as one to the claimant's discredit, or which tends to lower him in the estimation of others, or causes him to be shunned or avoided, or exposed him to hatred contempt or ridicule. Another definition has been provided by the American Law Institute in the Second Restatement of Torts as:

"a statement is defamatory if it tends to harm the reputation of another so as to lower him or her in the estimation of the community or to deter third parties from associating or dealing with him or her."

10.	To be defamatory, an imputation must tend to lower the claimant in the estimation of right-thinking members of society generally.

The issues for determination. 

i.	Whether all the defendants were responsible for the preparation and / or publication or caused to be prepared and / or the publication of the various articles contained in the report by the media outlets?

ii.	Whether the words complained of have brought him into disrepute in the community so as to bring discredit in his office, trade and profession, whether they ridiculed him, and whether they have caused others to shun or avoid him. 

The case for the defence.

11.	They say that there was no publication of the intended article prepared by the second Defendant. Instead it was the media themselves who published excerpts from the intel Report which had been provided to them. 

12.	They say the defendants never intended the Report to be published. The decision to publish was entirely the responsibility of the newspapers and / or the media outlets. The second Defendant says that the Report was provided for verification purposes. 

13.	He denies that he gave the report to the newspapers or for publication with any malicious intent. 

14.	He also says that the giving of the Report to Solomon Star was at their request. As well, he says for publication purposes it would only apply to the Editor and whether the Claimant's reputation was lowered in the eyes of the Editor.

Did the defendants publish the intel Report? 

15.	I am not satisfied it has been established on the evidence that the first and third Defendants were responsible for the authoring, preparation and / or the publication of the Report. In his evidence in court, the second Defendant told the court that the report was given to him by the wife of Jimmy Lusibaea. 

16.	Secondly, there is no evidence to show that the first Defendant sanctioned the publication of the Report. The second Defendant told the court that when he sought to give a copy of the Report to the first Defendant he noted he already had a copy and was aware of it. He says they discussed the Report and its implications but at no time did the first Defendant authorize him to publish the Report. They did however discuss the article which he had prepared in respect of the Report, which was sanctioned. That article however is not the subject of this action for it was not published it seems.

17.	Thirdly, there is no evidence that the Report was prepared and / or published on behalf of the Solomon Islands Government.

18.	Fourthly, the second Defendant conceded he gave a copy of the Report to the Solomon Star but in the context of a request made by the Editor of the Solomon Star for verification purposes. He maintained during cross examination that it was the article he had prepared which was submitted for publication, not the Report. The Report was never intended for publication and it was given only because the Editor of the Solomon Star wanted to verify the article he had written and submitted for publication. He told the court the Report was given solely for that purpose. The separate article he had submitted was never published instead the Solomon Star published excerpts from the Report directly. He maintained during cross examination that the decision to publish articles directly on the Report was a decision taken by the Editor to the Solomon Star on their own and as a responsible and accountable newspaper. There is no evidence to the contrary and I accept the explanation provided by the second Defendant. I also note that the separate article written by the second Defendant is not the subject of this proceeding and there is no evidence that it contained any defamatory material, only an assumption. 

19.	I am satisfied it has not been shown that the second Defendant intended that the Report should be published by the Solomon Star when he gave it to them. I accept it was given in the context of verifying the article he had written on the Report. I am satisfied he did take such steps he considered appropriate to convey his own separate article written on the Report rather than the Report itself. The decision to publish articles on the Report was entirely that of the newspaper. The newspaper accordingly must bear responsibility and accountability for what it had published in its papers. 

20.	For purposes of publication however, the giving of the copy of the Report to the Editor was sufficient. The Editor is a third person and by having an article written, whether defamatory or not, giving it to him and verifying it with a Report that does contain defamatory material, fulfills the requirement of publication under the law of libel and slander. 

Did the words in the Report defame the Claimant? 

21.	In answering that question the Report needs to be considered in the light of the defamatory imputations claimed to have been conveyed. Do they mean in their ordinary and natural meaning, the following:

(i)	That the Claimant owes allegiance to a foreign power namely the Australian Government and not the Solomon Islands Government? I have read through the alleged words but I am unable to come to the satisfactory conclusion that any suggestion was made that he owed allegiance to the Australian Government than the Solomon Islands Government.

(ii)	That the Claimant has colluded with representatives of the Australian Government and the Regional Assistance Mission to Solomon Islands (RAMSI) with the intention of effecting the fall of the First Defendant's government and the election of the Claimant as the Prime Minister. I am satisfied that the words as published do have those connotations.

(iii)	That in exchange for such collusion the Claimant would receive monetary and other benefits from the Australian Government. I am satisfied those words do have those connotations. 

(iv)	That the Claimant would be a party to the making of illegal payments to Members of Parliament in exchange for them supporting the Opposition. I am satisfied those words do have that connotation.

(v)	That the Claimant has colluded or conspired with member of the Judiciary of Solomon Islands and others in court cases involving a Member of Parliament. I am not satisfied the connotation can be drawn in respect of those words necessarily linking the Claimant to the Judiciary of Solomon Islands and other court cases that there has been collusion or conspiracy.

22.	The second part to the question whether the words in the Report defamed the Claimant is whether they ridiculed or brought him into contempt with others, in this instance, the Editor to the Solomon Star. Did they cause him to be shunned or to be avoided, or did they discredit him or lower him in the estimation of others? 

23.	Counsel Muria (Jnr) submits that in the case of an Editor being privy to all forms of report whether controversial or mild, the likelihood of the Claimant being shunned, held in contempt is substantially low. Counsel Radclyffe in his submissions had pitched the Claimant's claim on the grounds that there had been "publication" in the commercial sense which I had found against. 

24.	In answering this particular question, the background circumstances which prevailed at that time needed to be taken into account. It was a politically tense period, with a lot of moving around of Members of Parliament from one camp or side to another. There was a lot of mudslinging amongst the parties, those in Government and those in the Opposition which included the parties in this case. It was in the context of those circumstances that the Report was released and came into the hands of the second Defendant. He did not release that however but wrote an article on it which was never published instead it was excerpts from the Report which the Solomon Star had accessed to verify his article that were published. The damage was caused by the subsequent act of the newspaper in publishing in its paper the defamatory material. 

25.	I accept submissions of learned Counsel Mr. Radclyffe that a copy of the Report should not have been released even if it was in the context of verification purposes and in the event it was released it should be for the purpose only for the publication by the newspaper of the article that the second Defendant had written. 

26.	It is my considered view that while damages are at large in this case it should be confined to nominal damages limited to $5,000-00 plus costs against the second Defendant.

Orders of the Court: 

1.	Allow claim of the Claimant for libel against the second Defendant.

2.	Dismiss claim against the first and third Defendants.

3.	Award nominal damages confined to $5,000-00 plus costs against the second Defendant.

The Court.