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Newspaper Kele’a published letter critical of Tongan king

NUKUALOFA, Tonga (Matangi Tonga, July 20, 2009) – TONGA'S Court of Appeal in passing judgements on Friday, July 10 upheld two appeals related to defamation - in one case overturning a conviction for defamation against the publisher of the Kele'a.

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

The first appeal was between Siosiua Po'oi Pohiva, the Publisher of the weekly Kele'a newspaper v the Crown.

Siosiua Po'oi Pohiva appealed against a judgement that had been made by Justice Shuster, convicting him of defaming His Majesty the King.

In their judgement the Court of Appeal ruled that Justice Shuster was in error in doing so and the appeal was allowed.

The defamation case was about a letter to the editor published in the Kele'a on December 6, 2007. The letter was claimed to be highly critical of the King.

Pohiva stated in a recorded interview said that he did not know about the published letter of December 6, 2006 until after he returned to Tonga from the USA in February, 2007.

The Appeal Court Judgement found that, "In our opinion it is not possible to conclude that Pohiva had requisite criminal intention in order to satisfy the mens rea element of the offence. The Crown accepted that it could not point to any evidence that would justify a finding that he did. Pohiva should have been acquitted."

The Court of Appeal stated that the prosecution must prove the accused intended to speak, write, print or otherwise put into visible form any matter damaging the reputation of HM the King before conviction.

In this case, Pohiva was unaware that the article was critical of the king and was going to be published in the newspaper at the time it was.

The judgement said Pohiva's record of interview became an exhibit, which Justice Shuster said was admitted and had claimed that the statement made in the record of interview was made involuntarily.

The maximum fine for defaming a royal is Tongan 2,000 pa'anga [US$967] .

Pohiva put the responsibility on what he printed in his newspaper on the editor.

The Court of Appeal said that almost two centuries ago, the publisher of a publication could be liable for criminal libel in common law, even if the publisher was unaware that the libellous content was published.

"Ultimately the legal question we must decide is one of statutory construction. Therefore the appeal was allowed and the conviction quashed," it said.

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