Police v Sikuea and Others
Magistrates Court, Tonga
22nd April 1996
This was a prosecution of three persons for alleged breaches of section
57 of the Criminal Offences Act Cap. 18 of Tonga. That section reads as
follows:
Every person who uses threatening, abusive or insulting language or behaviour towards any officer in the Service of the Government shall be liable on conviction to imprisonment for any period not exceeding 2 years or to a fine not exceeding $500 or to both such a fine and imprisonment.
Two
of the defendants were the authors of letters published in the newspaper the
Taimi 'o Tonga on 21st February 1996. The third defendant 'Akau'ola was the
editor of the newspaper and was charged as an accessory under section 8 of the
Act. The published letters, according to the evidence of the first and second
defendants, were written in order to correct certain statements by the
complainant in the proceedings, the Minister for Police, which had earlier been
made in an article in the Chronicles newspaper on 8th February 1996. Clearly
there were issues of a political nature as an undercurrent to the current
proceedings.
The defence contended, firstly, that section 57 was ultra
vires as against clauses 4 and 7 of the Tongan constitution. Next, it was
claimed that section 57 of the Act applied only with respect to abusive material
by spoken words and not to material which was published. Thirdly it was claimed
on behalf of the third defendant, the editor of the newspaper, that the owner of
the paper, a corporation, was the proper defendant in the proceedings. Finally,
it was contended by the prosecution that section 57 imposed a strict liability
offence negating the need to prove intention or mens rea. There were a
range of other issues raised in the proceedings, but this note concentrates on
these only.
On the constitutional issue, it was held that the Tongan
constitution did embody the principle of the supreme law; a matter set at rest
by clause 82 of the Constitution Amendment Act 1990. The first eighteen clauses
of the constitution functioned effectively as a Bill of Rights. It was held that
section 57 did not infringe clause Clause 4 of the Constitution. That clause
which provides that there will be one law for Chiefs and Commoners in Tonga. The
Court applied the narrow, and seemingly non-literal interpretation, of that
section by the Supreme Court of Tonga in Sunia Mafile'o Tu'itavake v Porter
and Ors. 24/1989 SC Tonga as imposing a requirement that like be treated
alike and that a legally justifiable and non-arbitrary differentiation between
different groups in society is permissible. The defendants appeared to contend
that the infringement by section 57 lay in so far as it purported to provide
special privileges to servants of the government, whilst denying those
privileges to others. Here it was held that the differentiation was not
arbitrary and provided justifiable protection to servants of the government as a
class within society. The section provided no arbitrary differentiation by the
law within that class of persons.
Clause 7 of the constitution purports
to guarantee freedom of speech and of the press. Again it was held that section
57 was not inconsistent with that clause. Clause 7 was taken to prohibit any law
which will censure freedom of expression and publishing in the sense that it
would impose, in advance, "legal limits which prohibits or otherwise effectively
restrain (sic) speaking or publishing (Censorship Law)". The publication of
threatening, abusive or insulting language is not something which Clause 7
itself would permit under the guise of freedom of speech or freedom of the
press. See also Francis v Chief of Police [1970] 15 WIR 1 and
Collymore and Another v Attorney-General of Trinidad and Tobago [1967] 12
WIR 9.
In relation to the second matter it was held that section 57 did
apply with respect to published material. The section used the word 'language',
unlike provisions such as section 47(1) which refers specifically to speech.
There was therefore no need to limit the section to spoken words only. In this
regard the Court applied the decisions in Attorney-General v Prince Ernest
Augustus of Hanover [1957] 1 All ER 49 and Director of Public
Prosecutions v Schildkamp [1969] 3 All ER 164 A sub-issue concerned what was
alleged to be an inconsistency between the Tongan version of the section and the
English version. The defendants contended that the summons was bad because it
alleged only that the letters were 'Fakatut'ita'i' rather than
Leakov'i Fakatut'ita'i. Hence it was alleged that the summons was bad for
duplicity.
The wording of the Tongan version of the section, so far as
relevant runs as follows "57... nguae'aki-pa lea FAKAMANA LEAKOVI'I
FAKATUPU'ITA'I pe FAKAMATALILI .." The English section as stated above refers to
".. uses threatening, abusive, insulting language or behaviour...". Section 21
of the Interpretation Act 1988 of Tonga provides as follows:
"If upon the trial of any person for an offence against any law of Tonga it is manifest that the Tongan and English versions of the Section which the accused person is charged with violating differ in meaning, then, in deciding the question of the accused person's guilt or innocence the Court shall be guided by what appears to be the true meaning and intent of the Tongan version."
However, the Court held that this section did not
apply to the case in hand because there was no material difference between the
Tongan and the English rendering of the section. The Magistrate said in the
course of the judgement:
"I am sure that the legislature when enacting Section 57 did not intend to use LEAKOVI'I and FAKATUPU'ITA'I together. Those two words are both verbs. It is grammatically incorrect both in writing and in speaking. I think that the true construction of the intention of the law makers is to separate them with a comma in between." (p. 17)
It was held that the Court was entitled
either to ignore or to imply punctuation when interpreting the words of a
section. Hence it was held that the summons was not bad for duplicity by merely
referring to FAKATUPU'ITA'I.
On the question of the liability of the
third defendant, the editor of the Taimi, the defence claimed that the company
owing the newspaper rather than the third defendant should have been the
defendant in the case. The Interpretation Act Cap 1 includes a corporate body
within the definition of the definition of a 'person' for the purposes, inter
alia, of criminal prosecution. The Court proceed on the basis that had the
proceedings been brought against the company, the prosecution would have had to
show that the third defendant was not merely a servant or agent of the company
but that he was "the embodiment of the company ... and that .. his act and his
mind are the act and mind of the company." (p. 21) The Court here relied on the
principles of corporate criminal liability set out in Tesco Supermarkets Ltd.
v Nattras [1972] AC 153 This decision of the House of Lords imposes a
control test. It requires in effect a differentiation between those senior
officers who carry out the functions of the Company and speak and act for the
company, on the one hand, and those lesser officers who, although they exercise
some managerial functions, do so under the supervision of others; that is,
between those who direct and those who are directed.
On the evidence in
this case it was decided that there was no basis for holding that the company
was the proper defendant. The third defendant was not the editor and was not
directly responsible for the management of the company. Thus he and not the
company was a proper defendant in the proceedings.
Finally the Court
considered whether, according to the prosecution's submission, section 57
imposed strict liability on persons alleged to have breached it. The Court
discussed the various rationalia for strict liability offences set out in
authorities such as Sherras v De Rutzen [1985] 1 QB 918, Cundy v
Cocq [1884] 13 QBD 207 Harding v Price [1948] 1 KB 695 and Lin
Chin Aik v R [1963] AC. Some reliance was placed on the judgement of Devlin
J in Reynolds v Austin and Sons Ltd. [1951] R KB 135 at 148 which suggested that
the term 'uses' as it appears in section 57 in some circumstances impose a
requirement of proof of mens rea. The Court was of the view that section
57 did not create a strict liability offence and that the prosecution did need
to prove criminal intention. However, on the facts such intention was
found.
In the end result the charges against the second defendant were
dismissed as the material published was not found to be abusive in nature. So
also the charges against the third defendant of abetting the second defendant.
The other charges against the first and the third defendants were found
proved.
PROFESSOR R. HUGHES
Head, School of
Law
University of the South Pacific
Port Vila, 4th
October 1997