055-NLR-NLR-V-44-LUVINERIS-Appellant-and-VANDRIESEN-Respondent.pdf
WIJEYEWARDENE J.—Luvineris and Vandriesen.
235
. 1942Present: Wijeyewardene -J.
LUVINERIS, Appellant, and VANDRIESEN, Respondent.
799—M. C. Panadure, 19,523.
Defence (Miscellaneous) Regulations: Regulation 20a—Publishing a statementlikely to cause alarm and despondency—Essentials of offence—Proof.Where a peirson is charged, under regulation 20a of the Defence(Miscellaneous) Regulations with having published a statement, relating' to matters connected with the war, which is likely to cause alarm ordespondency,—
Held, that it was not necessary for the prosecution to prove thatcertain witnesses thought that the statement would have that effect orthat certain persons were in fact alarmed or made despondent.
It is for the Court to examine the statement and decide whether thestatement would have that effect.
PPEAL front a conviction by the Magistrate of Panadure.
G. P. J. Kurukulasuriya, for accused, appellant.
R. R. Crosette-Thambiah, C.C., for Crown, respondent.
Cur adv. vult.
November 6, 1942. Wijeyewabdene J.—
The accused appellant was convicted on a charge of having committedan offence under Regulation 20a ' of the Defence (Miscellaneous)Regulations and sentenced to one month’s rigorous imprisonment. .
The counsel for the accused-appellant argued against the conviction onthe following grounds : —
(i.) that there was no evidence that the words alleged to have beenuttered were likely to cause alarm or despondency ;
(ii.) that there was no evidence that anybody was in fact alarmed ormade despondent by these words ;,
(iii.) that the accused’s conduct was not malicious.
I do not think there is any substance in these objections. All that theprosecution has to prove, when a person is charged with an offenceUnder this Regulation, is—
that the accused published a statement;
(ii.) that the statement related to matters connected with the war ; and
that the statement was likely to cause alarm or despondency.
236
Jailabdeen and Menon.
This Regulation does not require the prosecution to prove that theaccused acted with a particular intent or knowledge. The accused mustbe convicted on the proof of the facts stated above, unless the accusedproves—
that he had reasonable cause to believe that the statement was
true, and
that the publication was not malicious and ought fairly to be
excused.
In this case the accused went near the house of one Weerasekere andmade the statement referred to in the charge in the hearing of Weera-sekera and the members of his family. That would be publicationwithin the meaning of the Regulation. The statement was in relation tomatters connected with the war as in the course of that statement theaccused used words in Sinhalese meaning: “ Your English and yourEnglish Government will be ruined when the Japanese come Thatstatement which was made a few weeks after the raid in April was likelyto cause alarm or despondency as found by the learned Magistrate.The Regulation does not require any proof by evidence that certainwitnesses thought that the. statement would have that effect or thatcertain persons were in fact alarmed or made despondent. It is for theCourt to examine the statement and decide whether the statement islikely to have that effect.
Even assuming- that the defendant’s conduct was not malicious, thatfact alone would not exculpate the accused as he has to prove furtherthe other matters set out by me under the headings (a) and (b) earlier irtmy judgment.
After careful consideration I have decided not to alter the sentenceand impose a fine in lieu of the sentence of imprisonment. Such analteration of the sentence may tend to create a wrong impression thatoffences committed in breach of Regulations of this nature are regarded,as trivial offences.
I uphold the conviction and sentence and dismiss the appeal.
Affirmed.