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Kaki v Gunure [2002] PGDC 24; DC364 (31 January 2002)

DC364

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 580 OF 2001

Eric Kaki
Complainant

V

Elwy Gunure
Defendant

Goroka: Manue F
2001: 11th December
2002: 15th, 31st January

CIVIL JURISDICTION

MANUE F: This is a defamation case by the complainant against defendant for words spoken at the complainant on the 18th October 2001.

BACKGROUND HISTORY OF THE CASE

The complainant is a Policeman. He was based at Asaro Police Station where the defendant resides. While at Asaro, the complainant was approached by the defendant’s daughter in serving a civil summons of her child maintenance complaint. The complainant attempted to serve the summons but failed due to the fact that the defendant in that case had moved out of the country. After only one attempt, the complainant was transferred to Bena Bena Police Station. By the 17th October 2001, the defendant of maintenance case was back in the country and complainant in that case was back in court. She obtained a warrant of arrest against her defendant.

On the 18th October 2001, she was assisted by other policemen to have the defendant arrested. They drove out in a police car. At this point in time the complainant was seen at the police station attending to whatever he came to do. The defendant was also at the police station where he saw the complainant.

While the policemen were out trying to execute the warrant of arrest, the defendant went to the Provincial Government building, which is next to the courthouse. On his way out he saw the complainant accompanying the maintenance case defendant to the courthouse with another policeman. Apparently, not executing the warrant of arrest. The complainant and the other policeman and the defendant of that case fronted the courthouse counter. There they conversed with the presiding magistrate over the maintenance case and of the warrant of arrest that was already out.

They persuaded the presiding magistrate of the maintenance case that the defendant had just flown into Goroka on that date. The warrant of arrest was eventually stayed administratively.

The defendant and his daughter proceeded to the warrants and summons section at the police station. The complainant, the child maintenance defendant and the other policeman also ended up at the police station, warrants and summons section. It was there that the defamatory matter was uttered.

In addition to these facts the defendant raised two other matters, which are relevant to his case.

Firstly, he asserted that the complainant had forgiven him, for the defamatory matters. Following that, the complaint would be withdrawn. The same message was conveyed through the defendant’s daughters on a later occasion.

Secondly, in relation to the defamatory matter "- - - na drin bia wantaim Stanley Gene long Seigu - - .-" The defendant gave two accounts of the complainant getting drunk and approaching him.

The defendant gave an account of how the complainant got drunk and approached him at the main market bus stop. There, the complainant told the defendant that he got himself drunk at Seigu. Seigu is the village where the maintenance defendant and his relatives reside.

On another occasion, the defendant was informed that on the day before the maintenance defendant flew out of the country, the complainant was with him drinking beer that night at North Goroka. These claims have been strongly denied by the complainant.

The defendant does not dispute that the defamatory matter was published. He however, raises the defences of qualified protection: excuse: and an offer of apology.

The law of defamatory seeks to protect individual reputation. Defamation is governed by the Defamation Act, where section 3 defines it as:

"A person who

(a) by spoken words or audible sounds; or

(b) words intended to be read by sight or touch; or

(c) by signs, signals, gestures or visible representations, publishes a

defamatory imputation concerning a person defames that person within the meaning of this Act."

Section 2 stipulates what constitutes a defamatory matter. It is defined as "An imputation concerning a person, or a member of his family, whether living or dead by which –

(a) the reputation of that person is likely to be injured; or

(b) he is likely to be injured in his profession or trade; or

(c) other persons are likely to be induced to shun, avoid, ridicule or despise him."

As stated earlier the defendant does not dispute publishing the defamatory matter.
He rather raises defences. Defences are questions of fact which are also provided in the law of Defamation. Section 11 gives a range of scenarios where it is a lawful excuse for publication of a defamatory matter.

They are as spelled out in these terms:

Section 11. Qualified protection: excuse:

(1) For the purposes of this Act, it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith –

(a) by a person having lawful authority over another in the course of a censure passed by him in matters to which the lawful authority relates; or

(b) for the purpose of seeking remedy or redress for some private or public wrong or grievance from a person who has, or whom the person making the publication believes on reasonable grounds to have, authority over the person defamed with respect to the subject matter of the wrong or grievance; or

(c) for the protection of the interests of the person making the publication or of some other person, or for the public good; or

(d) in answer to an inquiry made of the person making the publication relating to a subject as to which the person by whom or on whose behalf the inquiry is made has, or is believed on reasonable grounds by the person making the publication to have, an interest in knowing the truth; or

(e) for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed on reasonable grounds by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances; or

(f) on the invitation or challenge, express or implied, of the person defamed; or

(g) in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person or

(h) in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.

(2) For the purposes of this section, publication is made in good faith if –

(a) the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; and

(b) if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and

(c) if the person by whom it is made-

(i) is not actuated by ill-will to the person defamed, or by any other improper motive; and

(ii) does not believe the defamatory matter to be untrue.

The facts show that prior to the defendant making the defamatory remarks there were instances and circumstances which when he computed, gave him the instinct to make the remarks.

These facts are that after attempting to serve the child maintenance summons the defendant learnt that the complainant had intimate social outings with the child maintenance defendant and his family members. There was an occasion where the complainant went to Seigu where child maintenance defendant’s relatives live, and got himself drunk with them on another occasion he was with the child maintenance case defendant drinking beer on the day before the defendant’s departure.

Then on the return of the child maintenance defendant, he accompanied the defendant to the courthouse and to the police station, warrant and summons section. In all these circumstances, it is highly questionable why the complainant had some special interest.

The conduct and actions of the complainant may be said to be wrong which grieved the defendant. He could not hold back what he had seen and concluded to be a wrong at that instance within the meaning of Section 11(1)(6) of the Defamation Act. Thus the outburst of the defamatory matter.

In my view the circumstances in which the defendant acted are covered under Section 11 (1)(6) of the Defamation Act. He was seeking a remedy for the private wrong or grievance from the complainant.

As to the defence of offering an apology, the instigator of the matter, in this case the defendant must make the first move to apologize to the aggrieved. The law relating to this is set under section 25 of the Act. Section 25 is in these terms:-

"In an action for defamation the defendant may plead and prove in mitigation of damages that he made or offered an apology to the plaintiff for the defamation before the commencement of the action or, if the action was commenced before there was an opportunity of making or offering the apology, as soon as he had an opportunity to do so."

It is clear that apology must be made by the instigator of the defamatory matter. Secondly, it is only a mitigating factor to reduce damages, but not a complete defence. In the present case, the complainant who is the aggrieved suggested to withdraw the case, possibly with a view that the defendant would come forward to make some settlement out of court. There seems to have been no response from the defendant, so the matter was not withdrawn. It is logical that the instigator should have made the first move. I find that the defendant had not utilized the defence of offering an apology.

Having said all that, I find that the defence of excuse under Section 11(1)(6) of the Defamation Act is made out and therefore the case is dismissed.