Ramdhan et Al v Assang et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Hamel-Smith, C.J.
• Judgment Date: 20 December 2006
• Neutral Citation: TT 2006 CA 39
• Docket Number: Civil Appeal No. 54 of 2004
• Date: 20 December 2006

Court of Appeal

Hamel-Smith, C.J. (Ag.); Warner, J.A.; Mendonca, J.A.

Civil Appeal No. 54 of 2004

Ramdhan et al

and

Assang et al

Appearances:

Mr. I. Khan, S.C. and Mr. K. Scotland for the appellants.

Mr. A. Fitzpatrick, S.C. and Mr. F. Hosein for the respondents.

Libel and slander - Defamation — Newspaper article — Defence of absolute and qualified privilege was not applicable — Article was not a fair and accurate report — Impression of ordinary person on first reading — Trial judge's conclusions were reasonable — Appeal and cross appeal were dismissed.

1 Hamel-Smith, C.J. (AG.): The appellants have challenged the decision of the trial judge to dismiss their claim in libel against the respondents (“the Express”). The appellants are police officers. They instituted proceedings in defamation, alleging that the libel was contained in certain paragraphs in an article that appeared in the Express newspaper of January 13, 1998.

2 The article was headed: “Mom tells La Paille Inquest: Jewellery missing from dead son “. The gist of the complaint was in respect of the last three paragraphs that read as follows:

“Also called to give evidence were Randy Thomas and Superintendent Sylbert Peters who was appointed independent investigator into the circumstances surrounding the men's death.

Police reported that the men opened fire on them, but some members of the public claimed that the police executed the men.

Peter's investigation lasted two weeks, during which he recorded statements of the police officers involved in the gun battle and members of the public who claimed to have witnessed the killings”.

3 The appellants’ contention was that the words were capable of one meaning alone, viz. that the appellants murdered the deceased men or, more starkly, the appellants were murderers. The respondents denied that the words were capable of such meaning and contended that in any event they were not defamatory of the appellants.

4 The Express relied on the defence of absolute and qualified privilege. As regards the former, they contended that the article was a fair and accurate report of judicial proceedings published contemporaneously. As to the latter, that of qualified privilege, they relied on what is termed “the Reynolds privilege,” on the basis of responsible journalism.

5 The trial judge found that the words were not capable of bearing the meaning propounded by the appellants and dismissed the claim. He also rejected the defence of absolute and qualified privilege. Both sides have challenged the decision, both contending that the judge had come to the wrong conclusion.

6 After hearing counsel on both sides this Court agreed with the decision of the trial judge and dismissed the appeal and cross appeal. The Court promised to give its reasons at a later date. I do so now.

7 The trial judge encapsulated the submission of counsel for the appellants quite succinctly, a submission that was repeated in this Court. Counsel contended that the last two paragraphs, when taken together, constituted the libel. When so taken, he submitted, the meaning to be ascribed to the words was that the persons who claimed they witnessed the killings gave statements to Supt. Peters in which they claimed that the police executed the men. Accordingly, it was clear, counsel contended, that the appellants were being called murderers.

8 The trial judge, in coming to his decision, first set out some of the events leading up to the article. I find it helpful to repeat what he took into account. On August 5, 1997, the police officers were on patrol near La Paille Village, when at about 10.30 pm they were involved in a gun battle with the deceased men. According to the officers, they had ordered the men to stop the vehicle in which they were traveling. The men refused to do so and opened fire on them instead. They returned the fire and after some five minutes the three men lay dead.

9 The first defendant, a reporter, investigated the incident and interviewed a number of people. Her information was derived partly from within the police service and partly from villagers in the area. The Express published another article on August 7, 1997 in which reference was made to “an intense gun battle, which lasted for five minutes, according to eyewitness reports”. There was no complaint about this article.

10 It is not denied that there was a public outcry over the incident. According to Assistant Commissioner Grant, numerous telephone calls were received from the public about the incident and (according to the article) “people claimed that the men were executed by the police “. It concluded by stating that the “police were inviting members of the public who may have witnessed the incident to speak freely with the investigator”. The article also informed that Superintendent Peters had been appointed to take over the investigations into the incident and to report to Grant within seven days. Again, according to the judge, there was no complaint about this article.

11 In a third article published as an editorial on Sunday August 10, 1997, it was admitted that there “were apparently no eye witnesses to this encounter with the police, although some members of the public seemed to have great doubts about what really transpired”. According to the first defendant at the trial, she did not speak to anyone who claimed to have witnessed the gun battle but villagers had told her that they surmised that there had been an execution because of the number of gunshots they heard that night.

12 A further article appeared after the funeral of one of the deceased men. The article published on August 12, related the incident once again. An inquest was ordered into the deaths of the men and some five months later, on January 12, 1998, the inquest began. The article complained of was then published after the mother of one of the deceased men testified. By and large, the article reported the testimony of the mother and no complaint was made with respect to that part of the article. The complaint was directed, as indicated already, to the last three paragraphs.

13 The trial judge, in a rather succinct judgment, took into account several matters before coming to his conclusion. He considered the context in which the words were written, the manner in which they were published, the matters to which they related which would influence those to whom they were published in putting a meaning to them. He rejected the submission of counsel for the Express that the words “some members of the public claimed that the men were executed by the police” should be taken in isolation or that the three paragraphs be read separate. He read them together. He followed the guidelines laid down in Gatley on Libel and Slander 10th Ed. 3:28-29 and informed himself that the meanings attributed to the words complained of should not be strained or forced nor should an unreasonable interpretation be given to them. (see Jones v. Skelton [1963] 1 W.L.R. 1360).

14 He considered that it was a matter of impression to an ordinary person on first reading, not on a later analysis (Hayward v. Thompson [1981] 3 All E.R. 450) and the question as to what the words would convey to the ordinary man. It was not one of construction in the legal sense and he followed the learning in Lewis v. Daily Telegraph Ltd [1963] 2 All E.R. 151 that “one has to look for the gist of the libel … it is the perception of the ordinary man rather than simply the view of the plaintiff; which is paramount. The ordinary man was going to read the whole of the article then get a complete picture of what was being said and it was at that stage that the libel crystallized (see Forde v. Shah [1990] 1 T.T.L.R. 73).

15 In taking the paragraphs together, the trial Judge reasoned that the words would mean that (i) Supt. Peters had been appointed to carry out an independent investigation into the circumstances surrounding the deaths of the three men; (ii) that his investigation had lasted two weeks during which he recorded statements both from the police officers involved in the gun battle, as well as from members of the public who claimed to have witnessed the killings; (iii) that the police version of the incident was that the dead men had opened fire on them but that members of the public who had given the statements claimed that the men had been executed by the police. He opined that the ordinary reader would not divorce the second or middle paragraph from the last or from the conjoint effect of the first and last.

16 The judge was of the view that the circumstances in which the article was written had to be considered, viz., in the context of an inquest being held into the deaths of the men. The article was, to a large measure, a report of the first day's proceedings of the inquest. He considered that the ordinary reader would appreciate the purpose of an inquest i.e. an inquiry into the cause of death of a person to determine if anyone should be charged as being responsible for the death and that it was not a trial to determine the innocence or guilt of anyone.

17 The judge further considered that the ordinary reader would also be aware that an inquest would not usually be held if there was evidence available that demonstrated that an unlawful death had in fact occurred and that the identity of the person suspected of having caused the death had been determined. In such circumstances the appropriate charge would be preferred without the need for an inquest.

18 As regards the lapse of five months between the date of the incident, with the ensuing public outcry and the commencement of the inquest, the trial judge expressed the view that while the events may not be fresh in the minds of the public, there would have been at least some residual recollection of the initial publicity which the article would have evoked.

19 The judge also considered the context of...