IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

Appeal No. CA 5/2001
Case No. 1262/99

BETWEEN:

POHIVA TU'I'ONETOA
Appellant

AND:

'AKILISI POHIVA
Respondent

Coram: Burchett J
Tompkins J
Spender J

Counsel: Lesina Tonga for appellant
Siosifa Tu'utafaiva for respondent

Date of hearing: 0 July 2001
Date of judgment: 7 July 2001

JUDGMENT OF THE COURT
DELIVERED BY TOMPKINS J

[1] The appellant (the plaintiff in the Supreme Court) sued the respondent for defamation. Following a trial before the Chief Justice and a jury, judgment was entered for the respondent, in accordance with the answers the jury gave to the issues. In the course of the trial, the Chief Justice gave a ruling on the defence of qualified privilege. The appellant has appealed against the ruling and the jury's verdict.

Background

[2] At the relevant time and at the time of the trial, the appellant was the Auditor General for the Government of Tonga. The respondent was the editor, owner and publisher of the Kele'a, a newspaper published in the Tongan language. He was also a Member of Parliament.

[3] In the November/December 1998 issue of the Kele'a there was an article concerning a report from the office of the Auditor General which had been submitted to the Speaker of Parliament on 30 September 1990. The report containing a recommendation that monies received by some Members of Parliament should be refunded as they were not entitled to receive them. The article alleged that the report had been later resubmitted with the portion which contained the recommendation to refund money wrongly received, erased and replaced with a different explanation. The article claimed that this alteration had been made by the appellant.

[4] The article concluded with a paragraph which, translated, reads:

"However, it is proper that particular notice should be taken of the dangerous situation the Audit Department is placed because it is not independent and we have today experienced the bad (disastrous) consequence where the auditor has altered the correct result of independent examination carried out and put aside the truth and covered it instead with lies for the purpose of protecting members of the House (Legislative Assembly)."

[5] On 24 November 1999 the appellant commenced proceedings against the respondent claiming that the article was defamatory of the appellant. For the purposes of this appeal, it is unnecessary to detail the particulars provided in support of the allegation that the article was defamatory. In general terms, it was claimed that the article would be understood to mean that the appellant was untrustworthy, dishonest, that he concealed the truth, and that he was unfit to be Attorney General. He claimed general damages of $100,000, exemplary damages of $50,000, and the costs of the proceedings.

[6] The statement of defence pleaded several defences. Relevant to the issues on this appeal are pleadings that the publication concerning the appellant was true, and that the publication was the subject of qualified privilege pursuant to s 10 of the Defamation Act (Cap 33)

[7] The action was tried before the Chief Justice and a jury between 20 and 28 March 2001. At the conclusion of the evidence, the Chief Justice, after hearing submissions from counsel delivered a ruling that the publication of the article was privileged under s 10 of the Defamation Act unless the respondent was actuated by anger, ill-will or other improper motive. He held that whether that was so is a matter for the jury.

[8] The issues put to the jury and their answers were:

Did the article in the Kele'a of November - December 1998 defame the plaintiff by damaging his reputation or exposing him to hatred, contempt or ridicule or causing him to be shunned?
Answer: Yes Majority six to one

When the defendant published that article was he actuated by anger, ill-will or other improper motive such malice?
Answer: No Majority five to two

What is the proper sum of damages?
No answer required.

[9] As a consequence of those answers, judgment was entered for the defendant with no order for costs.

The ruling on qualified privilege

[10] The issue of qualified privilege turns on the proper application of ss 10 and 11 of the Defamation Act:

10. No criminal or civil proceedings for defamation of character shall be maintainable in respect of any communication made bona fide by any person in discharge of a legal, moral or social duty or in reference to a matter in which he has an interest and the person to whom such communication is made has an interest in hearing it unless it is proved that the person making such communication was actuated by anger, ill-will or other improper motive.

11 (1) Whether a communication was or not made under any of the circumstances mentioned in either section 9 or section 10 hereof shall be decided by the judge at the trial.

(2) If the judge rules that the communication was made under any of the circumstances enumerated in section 9 hereof he shall enter judgment for the defendant.

(3) If it is ruled by the judge that the communication was made under any of the circumstances mentioned in section 10 hereof then if there is no evidence that the defendant was actuated by anger, ill-will or other improper motive the judge shall direct a verdict for the defendant.

[11] In his ruling the Chief Justice referred to the sections in the Act we have set out above, the pleading of qualified privilege in the statement of defence, the publication of the article, and the respondent's evidence concerning the reasons he gave for making the publication. He stated the question for the court to be whether the defendant had a duty to make the communication and the people to whom it was made had a proper interest in receiving it.

[12] He accepted that the respondent's election as a People's Representative for Tongatapu imposed a duty on him to keep his electors informed of matters that may cause them genuine concern. He found that the electors in Tongatapu had a sufficient interest in receiving information concerning the maladministration of parliamentary funds.

[13] He was satisfied that the improper alteration of a report to cover up misuse of public funds must be a matter of sufficient interest to all members of the public in Tonga to allow the privilege to extend to the article even though published to other regions of the country. If the allegation were that this report had been improperly altered, it must be germane to identify the person who made that improper alteration.

[14] For these, and other reasons set out in his ruling, he concluded that the publication of the article was privileged under s 10 unless the respondent was actuated by anger, ill-will or other improper motive. Whether that was so was a matter for the jury.

[15] Although the notice of appeal set out a number of grounds for challenging the ruling, Mr. Edwards for the appellant, in his submissions to this court, relied on one ground, namely that the Chief Justice erred in holding that whether the defendant was actuated by anger, ill-will or other improper motive was a matter for the jury. In support of his submission, Mr. Edwards relied on s 11 (1) of the Act. It was his submission that the effect of this subsection was that the judge at the trial was required to decide all matters referred to in s 10, including whether it was proved that the person making the communication was actuated by anger, ill-will or other improper motive.

[16] We do not accept that submission for two reasons. First, subs (3) of s 11 makes it clear that if there is no evidence that the defendant was so actuated, the judge shall direct a verdict for the defendant, with the result that it is the jury that makes the decision, albeit on the direction from the judge. The converse must also be so. If there is evidence that the defendant was so actuated, it must be the jury that makes the decision whether in fact he was.

[17] Secondly, we consider that ss 10 and 11 are intended to express the common law. To the extent that there may be any ambiguity in the two sections, it is appropriate, in arriving at a proper interpretation of them, to have regard to the common law on this issue. There can be no doubt that at common law, it is the jury that decides if the defendant has proved that the plaintiff was actuated by malice. In Adam v Ward [1917] AC 309, 318 Lord Finlay LC said:

"It is for the judge and the judge alone to determine as a matter of law whether the occasion is privileged unless the circumstances attending it are in dispute, in which case the facts necessary to raise the question of law should be found by the jury."

[18] In Gatley on Libel and Slander at § 583 the authors state the rule to be:

"If the judge rules that the occasion is privileged, the plaintiff must, in order to succeed in the action, prove that the defendant was not using the occasion honestly for the purpose for which the law gave it to him, but was actuated by some indirect ulterior motive, e.g. malice in the popular acceptation of the term, and this is a matter for the jury."

[19] The Chief Justice was correct to rule that it was for the jury to decide whether the respondent was actuated by anger, ill-will or other improper motive. This ground of appeal cannot succeed.

The finding of malice

[20] It was submitted on behalf of the respondent that the finding of the jury that the respondent was not actuated by malice - it was malice that the appellant alleged - should be set aside on the ground that it was against the weight of evidence. The test to be applied is a strict one. The statement of that test by Lord Selbourne LC in Metripolitan Railway v Wright (1886) App. Cas. 152, 153 has been followed in subsequent cases:

It is not enough that the judge, who tried the case, might have come to a different conclusion on the evidence than the jury, or that the judges in the court where the new trial is moved for, might have come to a different conclusion; but there must be such a preponderance of evidence, assuming there is evidence on both sides to go to the jury, as to make it unreasonable, and almost perverse, that the jury, when instructed and assisted properly by the judge, should return such a verdict.

[21] Mr. Edwards submitted that the respondent must have known, at the time of publication, that the allegation that the appellant had dishonestly amended the original report was false. We accept that if it could be established beyond doubt that the respondent had that knowledge, that would be a ground for setting aside the jury's verdict. However, Mr. Edwards was unable to point to evidence that established such knowledge beyond doubt. He referred to correspondence following the publication that he submitted ought to have made it clear to the respondent that the allegation the respondent had made in the article was untrue. He also referred to the respondent's failure to make a full apology when he had that knowledge. While evidence of the respondent's state of mind after the publication and until trial may be relevant in establishing the respondent's state of mind at the time of publication, what the appellant was required to prove was that the respondent was actuated by malice at the time of the publication.

[22] Mr. Edwards submitted that the respondent was careless in failing to check the correctness of the allegation he was intending to make before publishing the article. But carelessness or even recklessness is not sufficient. In Horrocks v Lowe [1975] AC 135, 152 Lord Diplock said that the test of malice is very simple. It is: has it been proved that the defendant did not honestly believe that what he said was true, that is, was he either aware that it was not true or indifferent to its truth or falsity? Later, he observed that recklessness may not be sufficient:

If "reckless" here means that the maker of the statement has jumped to conclusions which are irrational, reached without adequate inquiry or based on insufficient evidence, this is not enough to constitute malice if he nevertheless does believe in the truth of the statement itself. The only kind of recklessness which destroys privilege is indifference to its truth or falsity.

[23] In his statement of defence, the respondent pleaded justification, that is that the allegations in the article were true. In his evidence he consistently said that at the time of publication he believed that it was the appellant who had made the alteration referred to in the published report. Even after the hearing the appellant and another witness assert that it was not the appellant that made the alteration, the respondent said, in cross examination, that he did not believe them. He asserted that at the time he wrote the article he was not aware that the appellant was overseas. In his cross examination there is the following passage at page 163 of the transcript:

"But at the time I wrote this article I believed bonafide that it was him and also considering the environment he was actually the person who did the alteration.
And you say that at the time of publication you believed what you believed was correct?
Yes bonafide belief.
And your bonafide belief you did not confirm that belief was the truth?
Yes, I did. I had searched and tried to get evidence from the environment of the report and I discovered that this was not a draft report. . . There was a deliberate attempt to change the final report and that deliberate attempt was done by the Auditor General. . . And I drew the conclusion that the person who had the power for this was the plaintiff and it was he who did the amendments."

Later at page 165, in answer to a question whether he believed the report had been altered:

"That was the state of my mind at the time I had published this article after considering all environments and came to this conclusion. That was my bonafide belief."

[24] It was not until the conclusion of the evidence that the respondent acknowledged that the report was not true and that the defence of justification did not apply.

[25] In his summing up the judge dealt with the issue concerning the respondent's state of mind at the time of publication in a manner that was fair and objective. He fully put the case for the appellant and the case for the respondent. There was no challenge to any part of the summing up. The following two passages are particularly relevant:

"Mr Pohiva, as he told you, is an experienced publisher, a publisher of some years experience, in fact. You heard what he said about it, he said that he considered the situation, he looked at the documents, looked at the alterations, considered the points I've already described and decided that he was right in his assumption. Having made that assumption, for that is what it was, he then decided that he needed to check it no further. He didn't take any of the steps to check it that I have suggested might have been possible - such as checking the hand writing or trying to find out a bit more about where the report had come from, that he received. Neither did he think of asking the man that he was, as it turned out, defaming to give his side. He told you that if he publishes an incorrect article in Kele'a, it's not for him to correct it; it's for the Prime Minister or the Speaker or Parliament."

"If you feel that the plaintiff has shown that he was irresponsibly publishing, regardless of whether or not it was actually true or not, then you must find for the plaintiff. Does his subsequent refusal to publish a retraction and his determination to pursue his allegation that it was true to the door of the court help you in deciding what was his real attitude when he published. You may have to consider whether in fact publishing in that case was done, as the defendant has said so many times, in good faith. Would a man truly acting in good faith, knowing how damaging his allegation was, would he have failed to check and take some extra check as to whether the story was right? It is matter for you but the fact that, subsequently, when it was pointed out to be wrong, he failed still to check it further, may give you some indication of why he didn't take a check at the time of publication. If you feel that the defendant was acting out of a proper motive and no improper motive when he publish that letter, then you will answer the 2nd question in the negative. If on the other hand you feel the plaintiff has demonstrated on balance that he published that simply not caring whether it was true or not or not caring about the effect it would have on the man that it referred to, then you will answer that question in the positive - 'yes'."

[26] It is apparent from the passages in the evidence to which we have referred, from other passages in the evidence, and from the Chief Justice's summing up, that there was ample evidence from the respondent that he claimed to have believed that the statement he published was true at the time of the publication. It was open for the jury to accept that evidence. There are no grounds for concluding that accepting the respondent's evidence on his belief at the time was unreasonable or perverse. The challenge to the verdict of the jury finding that the respondent was not actuated by malice, has not been made out. This ground of appeal cannot succeed.

The result.

[27] The appellant has failed to make out the two grounds of appeal on which he relied. The appeal is dismissed with costs to the respondent to be agreed or taxed.

Burchett J
Tompkins J
Spender J