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Langi v Televave [2006] TongaLawRp 17; [2006] Tonga LR 181 (14 July 2006)

IN THE SUPREME COURT OF TONGA

Langi

v

Televave

Supreme Court, Ha'apai
Ford J
AM 7/2005

6 and 23 June 2006; 14 July 2006

Criminal law – appeal against conviction and sentence – criminal defamation – inadequate decision – appeal allowed

The appellant appealed against her conviction and sentence in the Magistrates' Court in Ha'apai on one charge of criminal defamation. Upon conviction she had been fined $200 and ordered to pay compensation of $100 to one of the complainants and in default four months imprisonment. The incident giving rise to the charge occurred in July 2004 in the small village of Faleloa in the Ha'apai group of islands. As the respondent and her sister along with two female companions walked by the appellant's home the appellant called out and asked why they had raised their dresses when the matrimonial bed of her daughter had been taken to the house. The respondent then swore at the appellant and the appellant swore back. The appellant then accused one of the women of having "a spotted arse and a rash (ring worm) thigh." The appellant then said, and these were the words that formed the substance of the defamation charge, "I will say only one word and you will shut up. It was your sister who gave birth to your own uncle." The respondent's sister responded by calling out, "we will solve this in court." The appellant denied saying the words complained of but she admitted swearing and making a reference to the uncle. The principal grounds of appeal were that the magistrate, in a brief two sentence decision, failed to apply the correct standard of proof or to consider the essential elements of a charge of criminal defamation. It was also submitted that the magistrate gave no opportunity for submissions before giving his decision.

Held:

1. A magistrate called upon to sign a summons in a criminal defamation case should first satisfy himself, especially in the case of a private prosecution, that it was in the public interest that the prosecution should be allowed to proceed and that the publication complained of constitutes a grave, as distinct from a trivial, defamation of the complainant.

2. The two sentence decision was totally inadequate for dealing with the complex issues involved in a criminal defamation case.

3. Given that a defamation claim can proceed either as a criminal prosecution or civil action it was critical that a magistrate should apply the correct standard of proof. The statement by the magistrate in his decision that he believed that the prosecution had proved the defamation told one nothing about the standard of proof that he had in mind and it left the issue in doubt. The accused was entitled to the benefit of such doubt.