Tonga's Court of Appeal in passing judgements on Friday, July 10 upheld an appeal allowing a woman who was defamed by a policeman to recover costs.

The Court of Appeal sat with Justices J Burchett, J Salmon and J Moore on July 3.

The appeal was between Lavinia Malupo v Police Officer Taunauta, the Ministry of Police and Kingdom of Tonga.

Malupo appealed against a judgment made by Justice Shuster setting aside a decision initially made by the Magistrate's Court, which had awarded her the sum of $1,000 plus costs for defamation.

The judgment by the Magistrate's Court in favour of Malupo led to the respondents in this case to appeal to the Supreme Court and Justice Shuster ruled that the defamatory used were de minimis, which meant of minimum importance.

Schuster allowed the respondent's appeal and substituted the Magistrate's award of $1,000 for $25, thus awarded costs to appellants who were now the respondents in this case.

The Court of Appeal found that Justice Shuster did not refer to Section 16 of the Defamation Act and he described defamation as a defamatory question overlooking the express evidence that the officer insisted upon his observation telling the appellant not to lie about it.

Imputed unchastity

In Section 16 of the Defamation Act it provides that if defamatory words "impute unchastity to a woman or girl it shall not be necessary for the plaintiff to prove that he or she has sustained any monetary or other actual loss by reason of the publication of such defamation matter."

That is a statutory indication of the seriousness rather than triviality of such an imputation, which is made actionable per se, they added.

"In any case the most sensitive area of the relations between husband and wife was here attacked and the magistrate who heard and saw the witness had accepted the reality of the complaint."

"In our opinion his Honour fell into error by overlooking section 16 (1)(d) and it was not open to him to reverse the view of the facts taken by the Magistrate.

"Therefore the appeal must be allowed with costs; his honour's [Schuster's] orders be set aside and the award of the Magistrate . . .be restored.

Domestic dispute

The case was a 40-year-old mother and wife who was involved in a domestic dispute with her husband, which resulted in the police being called to her home on May 14, 2008.

When two officers arrived one of them, Taunauta asked her in the presence of her husband and the other officer, "whether she was the one staying in de facto with a bald headed guy."

That elicited an immediate response hostile to her from her husband who said " Look at what you are doing."

The officer insisted saying to Malupo "you came and lodged a complaint against the baldhead guy that you stayed de facto with."

The Appellant's evidence, when first heard in the Magistrate's Court included the words, "he told me not to lie for it was me. "

The husband also gave evidence before the magistrate, which confirmed the defamatory remarks made by the police office, and that as a result he felt that his wife was not rightful to him.