Court of Appeal rules in favour of iWitness News

The Court of Appeal has ruled in favour of iWitness News and its owner, journalist Kenton Chance in relation to two counts of defamation brought as a result of its reportage on a 2018 court matter.

In a ruling on Wednesday during a virtual sitting, the court allowed iWitness News’ appeal and set aside the decision of the magistrate Zoila Ellis-Browne to award damages and costs to the respondent, and ordered that the parties bear their own costs.

In handing down the ruling, Justice of Appeal Mario Michel said:

“If the learned magistrate had fully and properly addressed her mind to the defence of qualified privilege, she was bound to have frontally addressed the question of whether the appellant’s report was fair, and will inevitably have come to the conclusion that the statements made by the appellant in the article in his online newspaper were made on an occasion of qualified privilege, when as a journalist, he was reporting on what he heard said in court by the prosecutor and or the defendant in a criminal case before the senior magistrate.

“The evidence is uncontroverted that the appellant was not activated or motivated by malice. The onus of proof of which would be on the respondent who never even alleged it.”

Counsel Jomo Thomas, who represented Chance and iWitness News, welcomed the ruling, saying in immediate reaction, “It is a good day for freedom of the press in St. Vincent and the Grenadines.”

The lawyer said he might have further comments after receiving the full judgement.

The court matter began when Adrian DaSilva, then 30, of Edinboro, appeared before the Kingstown Magistrate’s Court on July 16, 2018, alleging that his then girlfriend and mother of his son, Sherika Chandler had wounded him.

Chandler pleaded guilty to the charge and the prosecutor read the facts, telling the court that Chandler had cut DaSilva on his penis, resulting in 16 stitches.

However, during mitigation, Chandler made a number of allegations about DaSilva and the magistrate entered a not guilty plea for her and ordered a trial.

The criminal trial was set for September 2018 but when the matter came up, DaSilva said he no longer wanted to offer evidence in the matter.

Chance, who was among journalists covering the court on that day, published a report on the court hearing on iWitness News on July 16, 2018. Other media outlets publish articles on the court matter.

DaSilva brought two claims of defamation against iWitness News in connection to the matter, claiming that he had been cut on the groin and not on the penis.

He further told the court that while Chandler had said that she had miscarried while they were in a relationship, she never linked the miscarriage to him striking her on the belly as iWitness News had reported.

The claims were initially heard at the Kingstown Magistrate’s Court but then Senior Magistrate Rickie Burnett, who had heard the criminal matter involving DaSilva and Chandler, recused himself, saying, “The words complained of are familiar to me.”

On Feb. 23, 2021, Magistrate Zoila Ellis Browne heard the matters at the Calliaqua Magistrate’s Court.

At the trial, DaSilva was represented by counsel Duane Daniel and Thomas appeared for Chance and iWitness News.

DaSilva and Chandler testified in support of his defamation claims and Chance and fellow journalist Ashford Peters gave evidence in opposition to the claims.

Chance maintained that his news article accurately reflected what transpired in court.

He spoke of a request by DaSilva, prior to the civil hearing, to remove the article or amend it — which Chance said he considered to be a request to substitute the truth with a lie.

On April 28, 2021, Ellis-Browne ruled in favour of DaSilva and awarded him EC$7,500 on each of the two counts of defamation.

Thomas immediately informed the court of his intention to appeal and later described the decision of the court as “woeful”.

Thomas appealed the matter on five grounds, including that Ellis-Browne had failed to apply her mind to the defences of truth, qualified privilege, fair comment and justification.

In the ruling, Justice Michel pointed out that the position in St. Vincent and the Grenadines as it relates to the defence of privilege is still the common law position, which gives absolute privilege to accurate reports of statements made in judicial proceedings reproduced verbatim.

The law, however, gives only qualified privilege to reports which, though fair and honestly believed by the writer, did not simply reproduce statements actually made in court by parties, witnesses, advocates and adjudicators in the judicial proceedings, he noted.