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Enosa v Samoa Observer [2008] WSSC 86 (16 May 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

DR. ETI ENOSA
Plaintiff

AND:

SAMOA OBSERVER
Defendant

Counsels: R. Drake & K. Drake for the plaintiff
TRS Toailoa for the defendant

Hearing: 14th & 16th May 2008
Ruling: 16th May 2008

RULING OF NELSON J.
(on admissibility of documents into evidence)

Because of the adjournment I've had the opportunity to consider the issue of the admissibility of certain evid. adduced by the p/tiff which ws objected to by defendants counsel. I wuld now read these ruling into the record as follows:

The first concerns the objection to the production of various excerpts from the Samoa Observer such as Exhibit P-2, P-3 & P-5 for the plaintiff because the full contents of the excerpts have not been pleaded in the Statement of Claim as being defamatory but only certain parts thereof. Counsel argues that the non-pleaded portions are therefore irrelevant and should not be admitted into evidence.

In response, counsel for the plaintiff concedes the whole of these articles have not been pleaded in the Statement of claim as they are not alleged to be defamatory. But they have been produced in totality for convenience sake and to illustrate the context of the alleged defamatory statements. She highlighted the importance of context in a defamation case.

Defence counsel is correct that in defamation cases it is a fundamental rule that the pleadings state the exact words the plaintiff complains about; see e.g. Scott v Fourth Estate Newspapers Ltd. [1986] 1 NZLR 336 and the authorities cited therein. Also the New Zealand Court of Appeal Judgment in Kerr v Hayden [1981]1 NZLR 449 particularly at page 453 where Justice Cooke as he then was said: "it may seem an unfashionably rigid doctrine that an action for defamation cannot succeed unless the plaintiff can manage to plead the exact words with reasonable certainty....Against that consideration however others have to be weighed. They include the risk that a jury might too likely find a defendant liable for defamation if it were not essential for the plaintiff to prove the actual words used and to satisfy first the judge that they were reasonably capable of a defamatory meaning and secondly the jury that they did have that meaning."

In this jurisdiction of course both matters are to be determined by the judge as we have no system of civil trials by jury. Justice Cooke goes on to say and I think this is an important point for the present proceedings:

"To allow the fate of an action to depend on the evidence of a witness as to his understanding or the effect of what he read or heard would carry an obvious danger. It would tend to enable witnesses rather than the judge to determine whether there was defamation. It is allowed only when the plaintiff is relying on a true or legal innuendo that is to say (and again this is another issue that is important to the present proceeding) meaning depending on knowledge by persons to whom the words were published of special circumstances, either extrinsic to the words themselves or relating to a special meaning of the words, then witnesses may give evidence of what they understood from the words but still I think not without proof of the actual words."

This is however not to say that this means the whole of the article is therefore irrelevant and inadmissible. For the sake of convenience of consideration of the evidence, the whole article should be produced even though not pleaded. What is irrelevant to a consideration of the defamation and the issues will of course be ignored by the court.

It is also important that the court view the context of the words complained about because context is as Mrs Drake has pointed out significant. Sometimes words which are defamatory may not be because of the context within which they are used. see e.g. Gwynne v Wairarapa Times Co. Ltd. [1972] NZLR 586 where the words "Hitlers fascist people" and "Hitlers puppets" were found not to be defamatory in the circumstances when used to describe workers who had staged a protest march. Exhibit "P-2" for the plaintiff itself is a good example of context. The Headline reads "Unclean" but a reading of the article indicates this to be a statement not from the plaintiff but from the then Ministry of Health Chief Accountant. This illustrates the dangers of considering matters in isolation and without knowledge of the context within which words are used. Accordingly the objection to the admissibility of the whole of the relevant newspaper extracts is disallowed.

The second objection by defendants counsel was due to the fact that some of the documents exhibited by the plaintiff other than documents prepared by the plaintiff or sent to him as correspondence which documents he was able to identify and confirm as true copies have been tendered into evidence by way of photocopies only rather than by way of originals. In respect of some of these documents the plaintiff has explained only copies were available as the originals had been dispatched to their appropriate destinations. This argument seems to be based on what was commonly known as the "best evidence rule." A rule of which the distinguished author Phipson on Evidence one said "perhaps the most conspicuous feature of the modern law is its persistent recession from this once famous principle."

This point has arisen before me in the course of a no case submission in Police v Samau Lokeni see page 12 of the courts judgment dated 10th July 2007. There it is stated that the rule relevantly provides that a party seeking to rely upon the contents of a document must adduce primary evidence of the contents. In other words the original document in question not a copy thereof or a copy of a copy. In this case some originals were produced others were produced by way of copies or copies of a copy. Two authorities were considered by the court that of Kajala v Noble (1982) 75 CR App. R 149 and Governor of Pentonville Prison ex p Osman [1990] 1 WLR 277 The authorities cited imposed important qualifications on the common law principle. The decision in Kajala v Noble says that if the original document is available in ones hands one must produce it and one cannot give secondary evidence by producing a copy: see page 152 of the decision. The Governor of Pentonville Prison authority adds that a party having a document available in his hands means a party who has the original of the document with him in court or could have it with him in court without any difficulty: see page 308 of the decision.

I prefer to follow the approach of no less a jurist than the late Master of the Rolls Lord Denning who said in Garton v Hunter [1969] 1 AllE 451 "nowadays we do not confine ourselves to the best evidence rule. We admit all relevant evidence. The goodness or badness of it goes only to the weight and not to admissibility."

If counsel wishes to make further submissions on this issue in final submissions I would be happy to reconsider the matter provided it is identified precisely which documents are objected to and the basis of such objection but for the moment I am satisfied these documents are relevant to the issues in this case. The non-availability of the originals comes as no surprise considering the circumstances surrounding the documents and their preparation and dispatch and considering the time that has passed since these documents were brought into existence. There is however no reason apparent from the evidence I have heard so far to doubt the authenticity of the copies produced, they will be received into evidence as exhibits.

The third and final objection made by counsel for the defendants concerns the Ombudsmans Report dated 25thJ July 2007 which the plaintiff has sought to introduce into evidence. It is a colourful document indeed that begins with Shakespeare and ends with a quote from the Book of Proverbs. It is a document which represents the findings of an investigation and enquiry carried out by the Ombudsman into complaints by the plaintiff against the Government. As noted in the documents ‘Introduction’ it concerns a complaint about "when he was suspended from his post of CEO Health Ministry and in the associated events that followed. He claims that not only was the actual suspension unjustified but that his treatment thereafter by the authorities was unfair. Dr. Enosa says that his unjustified suspension and unfair treatment unreasonably brought a 38 year long public service career to an ignonimous end and has left him under a cloud that besmirches still his good name."

The Ombudsman as he is required to do by law investigated the complaints of the plaintiff and the Ombudsmans report contains his findings and conclusions. It is clearly a report of the Ombudsman carried out pursuant to his statutory duties and it is in no way binding on this court. Neither could it be of any persuasive value as the court in accordance with its constitutional functions must carry out its own examination of the merits of the plantiffs claim according to relevant and applicable principles of law and justice. The report serves no purpose in this exercise and my view clearly is it cannot be used as evidence for the purposes of the courts enquiry. Counsels objection to the admissibility of this report is upheld, the document will not be admitted into evidence.

As indicated these are the rulings on the matters that have been raised thus far by counsels but I have not closed the door if either counsel wish to re-visit these issues in their final submissions, please feel free to do so citing appropriate authorities and I will reconsider the matter.

JUSTICE NELSON