103-NLR-NLR-V-43-GUNARATNE-v.-DE-ALWIS.pdf
Gunaratne v. de Alwis.
433
1942Present: Hearne J.
GUNARATNE v. DE ALWIS.465—M. C. Colombo, 43,312.
Defence {Miscellaneous) Regulations No. 50—Information contained in articlein a newspaper—Failure to furnish source of information—Proviso toDefence Regulation No. 14.r
Where a person is charged under Regulation 50 of the Defence(Miscellaneous) Regulations with failing to furnish the name andaddress of the person from whom he obtained information on which anarticle in a newspaper was based and, if the information was containedin a document, to state the name and address of the person fromwhom he obtined the document.
Held, that it is no defence to the charge that possession of the documentin respect of which the charge was made was not likely to prejudicethe defence of the Island or the efficient prosecution of- the war in termsof the proviso to Regulation 14 of the Defence Regulations.
Regulation 50 should not be read subject to Regulation 14.
^^PPEAL from an acquittal by the Magistrate of Colombo.
M. W. H. de Silva, K.C., A.-G. (with him H. W. R. Weerasooriya, C.C.)for complainant, appellant.—The accused was charged under theDefence (Miscellaneous) Regulations for failure to comply with therequest of a “ competent authority ” acting under Regulation 50. TheMagistrate held that the accused had got the material for the newspaperarticle from the secret memorandum (P5) itself or from someone whohad read it. As the accused failed to disclose his source of information,in answer to the requisition, he should have been found guilty underthat Regulation. It is -submitted that the Magistrate misdirectedhimself when he held th^t the accused, who was charged under Regula-tion 50, had not committed any offence under Regulation 14.
[Hearne J.—The Magistrate, rightly or wrongly, tacked on Regula-tion 50 to Regulation 14.]
Yes, the requisition stated that the information was sought by thecompetent authority “ in the interests of public safety, the defenceof the Island, the efficient prosecution of the war, and for the purposes ofRegulation 14 ”. The Magistrate has erroneously read Regulation 50as being subject to the proviso in Regulation 14. The Court has nopower to inquire into the grounds for the belief of the competent authoritythat the information for which he asked was necessary “ in the interestsof public safety ”, &c. See Liverside v. Anderson and Morrison '; Greenv. Secretary of State for Home Affairs The accused has contravenedRegulation 50 and is not excused by reason of a proviso in anotherRegulation.
R. L. Pereira, K.C. (with him H. V. Perera, K.C., A. R. H. Caneke-ratne, K.C. and J. E. M. Obeysekere), for accused, respondent.—It isfor the prosecution to prove that accused had in his possession a copyof the document.
(1941) 3 All. E. R. 33S.
2 (1941) 3 All. E. R. 388.
434HEARNE J.—Gunaratne v. de Altois.
[H^arne J.—The accused was not charged with being in possessionof any document. He was charged with failing to disclose the sourceof information.]
That presupposed that there was a document in his possession. Themere, fact that there were certain resemblances in the newspaper articleand in the secret memorandum should not render the accused liableunless there was further proof that the document was with him. Therequisition had not asked the accused how he came to write the articlebut wanted him to give the name and address of the person who gave thedocument or information to him. The prosecution should also establishthat the requisition was necessary within the three grounds specifiedin Regulation 14. Regulation 14 penalised publication. If accusedcould not be punished for publication he could not be guilty of anyoffence under Regulation 50. Regulation 50 should be taken in con-junction with Regulation 14. Accused came well within the provisionof Regulation 14 and was hot therefore guilty.
; At this stage Mr. H. V. Perera, K.C., addressed the Court.]
H. V. Perera, K.C.—The second part of Regulation 14 required that the■competent authority making the requisition considered it necessary toobtain the information in the interests of public safety, the defenceof the Island, and the efficient prosecution of the war. If a disclosureunder the Regulation could be obtained for a particular purpose and notfor a mixed purpose then it was a question as to whether the power wasproperly used. If one was a direct purpose and the other in ulteriorpurpose then the Court would say that the act of the competent authoritywas really dorfe for a purpose which did not come within the law, whichreferred to a direct and dominant purpose. "
M. W. H. de Silva, K.C., in reply.—With regard to the argumentthat the- object of the competent authority was an ulterior object, viz.,to prevent future leakages—it is submitted that the requisition men-tioned all the purposes for which it was served. If the object was toprosecute, the competent authority could have prosecuted under Regula-tion 14, without sending a requisition under Regulation 50. Therequisitions under these Regulations should be liberally interpreted byCourt.
Cur. adv. vult.
July 30, 194.2. Hearnf. J.—
– The facts relevant to this appeal may be stated shortly. On April 21,1942. the Financial Secretary prepared a secret memorandum (P5)for the information of the Board of Ministers and on April 23 thereappeared in the “ Daily News ” an article written by the accused. TheFinancial Secretary drew his own conclusions from a comparison of thearticle with P5. The accused, in his opinion, had had access to thelatter and a formal requisition was made requiring him “to furnish thename and address of the person from whom he had obtained the informa-tion ” on which the article was based. “If the information is containedin any documents ”, he was also asked to state “ the name and addressof the person from whom he had received the documents ”. The accused
HE ARNE J.—Cunaratne v. de Alwis.435
replied that he had not obtained the information from any person orfrom any document “save and except articles and reports in the news-papers and the published Budget Estimates.”
The accused was charged with a breach of Regulation 50 of the Defence(Miscellaneous) Regulations. It was held by the Magistrate that the-,accused must have obtained the facts appearing in the article from aperusal of P5 or from conversation with a person who had seen it. Inthe requisition it was stated that the Financial Secretary deemed it to benecessary to obtain the information sought “ in the interests ofpublic safety, the defence of the Island, the efficient prosecution of thewar and for the purposes of Regulation 14 What was undoubtedlymeant by the words “ for the purposes of Regulation 14 ” was thatit was proposed, on receipt of the name and address of the unknownperson who, it was believed, had communicated the contents of P5to the accused, to prosecute him a for breach of that Regulation. Forthis reason the Magistrate read Regulation 50 as being subject to theproviso to Regulation 14. In doing so, he was, in my opinion, wrong.
Regulation 14 provides, inter alia, that no person shall have in hispossession “any document or any record whatsoever containing infor-mation of any matter as to which would or might, directly or indirectly,be useful to the enemy ”. The proviso states that no person shall beadjudged guilty of an offence against this Regulation, if he shows thatthe possession by him of' the document or record in respect of which acharge has been made was not likely to prejudice the defence of the Islandor the efficient prosecution of the war.
But the accused was not charged with the possession of any document,or with obtaining, recording, communicating or publishing anydocument. It is to these facts that the proviso applies. He was chargedwith failure to comply with the request of a competent authority actingunder Regulation 50, and a contravention of that Regulation is notexcused by reason of a saving clause in another Regulation.
Two arugments were addressed to me on appeal which do not appearto have been addressed to the Magistrate.
One of the arguments was this. While it was conceded that the Courthad no power to inquire into the grounds for the belief of the FinancialSecretary, that the information for which he asked was necessary “ in theinterests of public safety ”, &c., it was argued that the dominant purposeof the requisition was a prosecution under Regulation 14. It was thenargued that the words “ for the purposes of any regulation” appearingin Regulation 50 refer to the carrying out of duties under the Regulationsand not to the initiation of a prosecution which is not a duty imposedby the Regulations. Whatever, merit there may be in this argument,
I see no reason to speculate in regard to the question of what theFinancial Secretary regarded as his dominant or subsidiary purpose..It is enough that he stated that the requisition was, in his opinion,necessary for all the reasons stated therein.
The other argument was that the requisition assumed that the accusedhad obtained information from a person or from a document which wasin his possession and that it was, therefore, necessary for the prosecutionto prove that he could not have obtained the information otherwise
436Settlement Officer v. Vander Poorten.
than in one of those two ways. It was argued that the accused, whohad been accustomed to calling on Ministers as well as the FinancialSecretary himself, may have gleaned the information from a copy of thesecret memorandum on the table of a Minister or the Financial Secretarywhile they were in their rooms or away. If this was so he would nothave obtained his information from a person or from a document in hispossession;
Counsel has, however, overlooked the fact that while for the purposeof his argument it has been assumed that the accused may have seen adocument which was not in his possession, the accused in his reply to therequisition stated he had seen no document at all “save and exceptarticles and reports in the newspapers and the published Budget Esti-mates
But, apart from this, it .appears from P3 that the Editor of the “DailyNews •” thinks well of the accused and I refuse .to regard it as being evenremotely possible that an employee of this reputable daily paper wouldabuse the courtesy of an interview given to him by a Minister or theFinancial Secretary, much less that he would gain entrance to theirrooms in their absence, with the connivance of their peons or. otherwise.
The Magistrate’s finding of fact was unexceptionable. No personcomparing P5 and the article in the “ Daily News ” could possibly takeanother view ; and had he not misdirected himself in regard to the law,he would certainly have convicted.
The appeal is allowed. The case will be remitted to the Magistrateto record a conviction and pass sentence.
Appeal allowed.