IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 249/01

BETWEEN:

REX
Prosecution

AND:

KELEKOLIO TAPUELUELU
Accused

BEFORE THE HON CHIEF JUSTICE WARD

RULING

At the close of the prosecution case, defence counsel has submitted no case to answer on the first two counts of this indictment. Those counts relate to the publication of a letter purportedly from the accused in the Kele’a and a report in the Taimi ’o Tonga of a programme on television in New Zealand, respectively.

The first count is based on a letter, which appeared in the March/April 2001 edition of Kele’a. It is printed but has the words faka’apa’apa atu Kelekolio Tapueluelu in manuscript at the end. The contents of the letter suggest it was written by the accused and is in the first person.

Mr Tu’utafaiva submits that there in no evidence to connect the accused with it. Mr Kefu can only point to the handwritten name at the end.

There is clearly absolutely no evidence to establish prima facie that the accused, as opposed to anyone else, wrote the letter. The prosecution has produced no evidence that the handwriting is that of the accused and, in fact, the admitted signature of the accused on the record of the police interview is plainly totally different.

The jury will be directed to enter a verdict of not guilty to count one.

Count two relates to a report, in the Taimi of 13 March 2001, of part of the contents of a programme, which had apparently been broadcast in New Zealand. It appears to be an edited account of some of the statements on the programme including interviews in the programme with the accused and the Minister of Police although it is not apparent whether they were part of a panel discussion or separate interviews. However, the accused, in both his interview with the police and in his interview with the editor of the Matangi Tonga, acknowledged that he made such statements on the television programme.

Mr Tu’utafaiva submits that this is a republication and as such the maker of the original statements cannot be liable. The general rule is as stated by counsel. However, one of the exceptions stated in the case of Speight v Gosnay, to the protection of the person who originally made the statements is where the republication was the natural or probable result of the original publication. In the earlier case of Lynch v Knight (1861) 9 H L Cas 577 (as quoted in the English and Empire Digest Vol 32, 206) in which the repetition of a slander was held not to be a natural and reasonable consequence of the original statement, Lord Wensleydale stated:

"…to make the words actionable, …the consequence must be such as, taking human nature as it is, with its infirmities, and having regard to the relationship of the parties concerned, might fairly and reasonably have been anticipated and feared would follow from the speaking of the words …"

It is suggested in Gatley on Libel and Slander, 8th edition, paragraph 270, that the question of whether the repetition is the natural and probable consequence of the original publication is a question of law. I cannot accept that is correct. Whether or not this publication by the newspaper was a natural and reasonable consequence must be a matter of fact to be determined from the evidence and therefore one for the jury. On that basis the count must be left to them.

NUKU’ALOFA: 24 November 2003

CHIEF JUSTICE