SINHA RANATUNGA v. THE STATE

020-SLLR-SLLR-2001-V-2-SINHA-RANATUNGA-v.-THE-STATE.pdf


SINHA RATNATUNGA
v.THE STATE
COURT OF APPEALHECTOR YAPA, J. (P/CA)
KULATILAKA,, J.
C.A. 80/97
HC COLOMBO 7397/95
FEBRUARY 8, 9, 14, 28, 2000
MARCH 1, 9, 22, 2000
MAY 4, 5, 9, 10, 15, 16, 24, 29, 31, 2000
JUNE 6, 22, 2000
JULY 19, 20, 2000
Criminal Defamation – Publication – Defamatory Statements – Intentionor knowledgb to defame – Liability of the Editor – Penal Code S. 479, S.460, Sri Lanka Press Council Law Mo. 5 of 1973 – S. 14, S. 15, Purposeof Construing Words – Relevant Factor – Burden of proof – Privilege ofdisclosing source – Tests of probability and improbabuility – Testimonialtrustworthiness – Verdict/reasons not given forthwith – CriminalProcedure Code S. 200, – S. 203, S. 278 – Evidence Ordinance S. 114/(9)f
The accused -^jopellant Editor of the Sunday Times Newspaper was indictedon two count.. Jmder S. 480 Penal Code and under S. 479 Penal Code,read with S. 15 of the Sri Lanka Press Council Law. The party defamedwas Her Excellency the President of Sri Lanka. The accused-appellantwas found guilty on both counts. On appeal it was contended that:
(i) the Trial Judge has misdirected himself with regard to the contentsof the alleged publication;
(iij that the trial Judge failed to consider the article in question with anopen mind from the point of view of the reasonable reader;
that, the trial Judge failed to consider the article as it appeared in thepublication, by paraphrasing the article and omitting the word “party”and thereby sought to examine a different article;
that the trial Judge has prejudged the issue.
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Held :
(1) It Is settled law that a statement may be defamatory even though thereaders do not believe it to be true.
(ii) At the first glance of the article it could be said without any measureof doubt that the article In question is certainly not complimentaryof H.E The President of this country.
(ill) In evaluating defamatory material law does not apply rules ofconstruction which are used for the interpretation of a contract or awill.
“If we take the ordinary man as our guide then we must accept acertain amount of loose thinking. The ordinary man does notformulate reasons in his own mind. He gets a general impression.The publishers of newspapers must know the habits of mind of theirreaders and there is no injustice in holding them li^fctle if readers,behaving as they normally do, honestly reach conclusions which the?might be expected to reach.” e
(iv) The meaning intended by the writer or the publisher may not be veryrelevant for the purpose of construing the words in any article. Therelevant factor is how would a reasonable man may have understoodsuch words.
The Penal Code makes the requisite criminal intentiorfpr knowledgean additional ingredient of the offence of defamation d the burdenof proving it is on the prosecution.
What is necessary to be considered is whether the words in thearticle has the potential to convey a defamatory meaning to an averagereader. Therefore it is unnecessary to show that the reputation ofH.E. the President has infact been injuriously affected.
The trial Judge has sought to pinpoint to the main contents in thearticle, even if the word eparty” was included in paraphrasing itwould not have made any difference since no other guests werementioned in the article.
A free press must be a responsible press. The power of the pressis great. It must not abuse its power. If a news paper should actirresponsibly, then it forfeits its claim to protect its source ofinformation. In this case it would appear that the accused -appellant did not have the privilege even to refuse to disclose
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the source of information for the reason that the contents of thearticle was false. Further it would appear that S. 114(g) of theEvidence Ordinance would apply.
Held further :
(1) The accused- appellant’s position that he had written three paragraphsonly in the gossip column without bothering to read the contents ofthis article, that appeared before and after the three paragraphs hewrote in the gossip column is unacceptable. This is not the conductof a reasonable person, when applying the much hallowed test ofprobability and improbability.
(2) Tale-bearers are as bad as tale-makers. There is clear evidence fromthe accused-appelant that he being the Editor of the Newspaper hehad the authority to refuse the publication of any Article in thenewspaper.
(4)
t£>
Generally the intention of a person is something that is in his mindand therefore it has to be inferred from the words used, for therebeing no other criteria. Therefore when words and phrases used areprima facie or per se defamatory as in this case, the intention has tobe presumed on the face of the principle ‘that a man intends thenatural and probable consequences of his act.’
When iis established that the defamatory material has beenpublish"® in the newspaper, where the accused appellant is theEditor, is deemed guilly of the offence ‘unless he could bringhimself under anyone of the two defences available i.e. by provingthat the offence in question was committed without his knowledgeor that he exercised all due diligence to prevent the committing ofthe offence.
(5) Despite the large volume of evidence to be considered, the trial Judgewith commendable speed has delivered, his verdict giving reasons.Provisions of S. 203 CEC are directory and not mandatory. This is aprocedural objection that has been imposed on the court and its noncompliance would not affect the individuals rights unless suchcompliance occasions a failure of justice.
Held further:
(1) In terms of the proviso to Section 14 Press Council Law which saysthat “No such person shall be guilty of the offenceif
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he proves that the offence was committed without his knowledge ona balance of probability.” The submission that the accused-appellantdid not have the necessary knowledge cannot hold good for the reasonthat the Editor of a newspaper will be guilty of an offence under S.14 read with S. 15. What the accused-appellant intended is notmaterial, but what matters is whether in the eyes of the right thinkingmembers of the society the material published by the accused-appellant has the capacity to defame H.E The President.
In order to get relief under the provisions of the Press Council Lawthe accused-appellant has to prove on a balance of probability thatthe publication was without his knowledge, since there would nothave been the commission of any offence had there been no publicationin the newspaper.
Per Yapa J., (P/CA)
‘'What the press must do is to make us wiser, fuller, surer, a^dsweeter than we are. The press should not think they are free toinvade the privacy of individuals in the exercise of the constitutionalright to freedom of speech and expression merely because theright to privacy is not declared a fundamental r/ght of theindividual.”
Per Yapa J., (P/CA)
“The law of defamation both civil and criminal i^ also geared touphold the human beings rights to human dignity by placing controlson the freedom of speech and expression. The press should not seekunder the cover of exercising its freedom or speech and expressionmake unwarranted incursions into the private domain of individualsand thereby destroy his right to privacy.
Public figures are no exertions. Even a public figure is entitled fora reasonable measure of privacy.”
Per Yapa J., (P/CA)
“In this instance it is realty irresponsible conduct on the part of thepress misusing its freedom of speech and expession to injure anothersreputation or indulge in what is called, character assassination.
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APPEAL from the Judgment of the High Court of Colombo.
Cases referred to :
Rubber Improvement Ltd. vs. Dally Telegraph Ltd., 1964 AC at 234,258.
Morgan vs. Odhams Press Ltd., 1971 2 ALL ER 1156, 1163.
Cassidy vs. Dally Mirror Newspaper Ltd., 1929 2 KB 331 at 354.
Vaikunthavasan vs. The Queen – 56 NLR 102.
Hough vs. London Express Newspaper Ltd., 1940 2 KB 507 at 516.
British Steel Corporation vs. Granada Television Ltd., 1980 3 WLR774 at 805.
Htrd vs. Wood.
Byrne vs. Deane – 1937 1 KB 818 at 835.
R vs. Lucas – 1981 2 All ER 1008 at 1011.
s 10. Dayaratn$ vs. Bowie – 65 NLR 499 at 500.
1Anura Shantha alias Priyanthapnd another vs. AG. 1999 – 1 SLR299.
Tilak Marapana, RC., with S.L. Gunasekera, D. Weerasuriya, NalinLadduwahettl, Ronald Perera, D. Jayanetti for Accused Appellant.
Rienzi Arsetularatne RC., Addl. S.G., B. Aluvihare, S.S.C., RansiriFternando, SAC., Gihan Kulatunga, S.C. for Attorney General.
R.I. ObeysekfHt, RC. with W. Wickremaratne, RC., Ashley Herath, A.W.Yusuf, U. Sene *ltne and D. Pathiraja for the aggrieved parly.
Cur. ado. vult.
May 12, 2000.
HECTOR YAPA, J„ PCA.The accused-appellant .who is the Editor of the SundayTimes Newspaper was indicted before the High Court ofColombo, under two counts namely:-
(1) That you did by a publication in the Sunday TimesNewspaper of 19th February 1995, containing the words thatwere intended to be read, namely, the following words thatappeared in the said newapaper under the heading “Anura:Sootin says courting days are herg”:-
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‘Therefore, lets start at the top, about a party graced bynone other than Her Excellency the President, ChandrikaKumaratunga. The occasion was the birthday party of LiberalParty National List M.E Asitha Perera (Well Mudliyar Chanaka -how?). The place was Mr. Perera’s permanent suite at the 5-star Lanka Oberoi. But this time, the President was morecircumspect about her appearance and used the rear entranceof the hotel, watched by a phalanx of security guards, andmyself.”
“She spent about 90 minutes at the party, from about 12.30in the heat of the silent night until 2.00 a.m. and, as for whatshe ate, we assure you; it was not food from the Hilton. Thereading public now has a fair idea of it’s first citizen’s epicureantastes. But what of her estranged brother?”,
Published such imputation regarding Her Excellency &lePresident of the Democratic Socialist Republic of Sri Lanka,Chandrika Bandaranaike Kumaratunga, with intent to harmher reputation or while knowing or having reason to believethat such imputation would harm her reputation am that youhave thereby committed an offence punishable uty(er Section480 of the Penal Code.
(2) In the alternative to the first count that the said imputationreferred to above (count 1) concerning Her Excellency thePresident Chandrika Bandar an alike Kumaratunga waspublished by a person in the Sunday Times Newspaper of19th February, 1995, and that the person who publishedthe said imputation with the intent to harm her reputationor while knowing or paving reason to believe that suchimputation would harm her reputation and therebycommitted an offence punishable under Section 479 of thePenail Code read with Section 15 of the Sri Lanka PressCouncil Law No. 5 of 19.73 and that you being the Editor ofthe said newspaper has therefore committed an offencepunishable under Section 15 read with Section 14 of thePress Council Law.
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After trial the learned High Court Judge found the accused-appellant guilty on both counts in the indictment andthereafter he imposed the following sentences. On the 1stcount the accused-appellant was sentenced to a term of 12months simple imprisonment which was suspended for aperiod of 7 years and to a fine of Rs. 7,500/= with a defaultterm of 4 months simple imprisonment. On the 2nd count hewas sentenced to a term of 6 months simple imprisonmentwhich was suspended for a period of 7 years and to a fine ofRs. 2,500/= with a default term of 3 months simpleimprisonment. The present appeal is against the saidconviction and sentence.
At the trial the prosecution led the evidence of Ranjith. Wijewardana, Asitha Perera, Simon Perera, Davin WimalaratneAd Sub Inspector Waidyasekara. According to RanjithWyewardana the proprietor of file Sunday Times Newspaper,the accused-appellant was the editor of this paper since 1990.In terms of the declaration made by him under the Sri LankaPress Cotmcil Law No. 5 of 1973, for the year 1995, producedmarked Pl he had given the name and address of the accused-appellant athe editor of the Sunday Times Newspaper. Hestated thatAe accused-appellant was responsible for thenews that jere published in the said newspaper andadmitted that in the Sunday Times Newspaper dated
at Page 9, an article under the caption “Anura:Sootin says courting days are here” had appeared. He wasunable to say as to who wrote this article but the accused-appellant as the editor of the Sunday Times Newspaperwas responsible for this article. A copy of the document inwhich information was furnished By him under Section 2 ofthe Newspapers Ordinance to the Department of NationalArchives was produced marked P2, and the Sunday TimesNewspaper dated 19.02.1995 was produced marked P3.The relevant article appearing in the said paper (ProvincialEdition) was produced marked P3(a) (Later in theproceedings the said article which appeared in the city edition
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was marked P4 (a)). This witness testified that the materialreferred to in P3(a) – P4(a) was false and if he knew that it wasso, he would not have permitted this article to be published. Atthe domestic inquiry that was conducted in relation to thismatter it was found that Her Excellency the President had notattended the said birthday parly. He further said that eventhough it is the normal practice for his newspaper to expressregret when any error of this nature was committed by hisNewspaper, in this instance this practice had not been followedby the editor. Witness admitted that the material contained inthe article in question was disrespectful of the President. Finallywhen the Court questioned the witness as to whether theaccused-appellant did not know about the said article (P3(a) -P4(a)) that was published in his paper (P3) he said that it wasdifficult for him to answer this question.
Asitha Perera in his evidence stated that a Japanese frigidpermitted him the use of his private suite at Oberoi Hotel for hisbirthday party held on 05.02.1995. He had about six guestsand the party started roughly at about 8.30 p.m. aaf. was overby about 11.30 p.m. or 12.00 mid night. Thereafterme also leftthe hotel and spent the night at his residence NA. 11, PolicePark, Colombo 5. The witness said that Her Erxllency thePresident did not attend the party as she was n^P invited andtherefore if someone said that Her Excellency attended this party,it was a diabolical lie. According to him the party held on
was the only instance he ever had a party at OberoiHotel. Subsequently when he read in the Sunday TimesNewspaper (P3) this article (P3(a) – P4(a)) which carried thestory that Her Excellency the President had been present at hisbirthday party, he got the finpression that it was an attempt tosling mud at the President. Simon Perera, AssistantCommissioner Sri Lanka Press Council, testified that under thePress Council law, No. 5 of 1973 there is a requirement to furnishinformation relating to a Newspaper. According to him thedocument marked.PI, related to the Wijaya Newspaper wherethe printer of the Newspaper is referred to as the Wijaya
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Newspapers (Pvt) Ltd. and the editor’s name is given as SinhaRatnatunga. Further there is a requirement for the printer ofthis paper to send the Newspaper published by the printerwithin 24 hours after publication to the Press Commissionerand accordingly he had received the Sunday TimesNewspaper dated 19.02.1995 (P3) on 20.02.1995. He admittedthat the C.I.D. questioned him about the article marked P3(a)- P4(a) which appeared in the Sunday Times Newspapermarked P3. Davin Wimalaratne, Director National Archivesstated in his evidence that in terms of the NewspapersOrdinance there is a requirement for a Newspaper Companyto send a certified copy of the newspaper with an additionalcopy on the day after the publication of the Newspaper to theArchives. According to the information set out in thedocument marked P2, Sunday Times Newspaper has beenRegistered &ftd this declaration was received by him onlyf06.1995. He also received a* certified copy of the SundayTimes Newspaper dated 19.02.1995 with another copy. Thispaper had carried the article marked P3(a) – P4(a) concerninga birthday parly attended by Her Excellency the President.He furtheraaid that he made a statement to the C.I.D. regardto this matier. Sub Inspector Waidyasekera of the C.I.D. saidthat, consequent to a complaint made by Her Excellency thePresident ohl21.02.1995, concerning an article which hadappeared in lie Sunday Times Newspaper of 19.02.1995, heproceeded to the office of the Wijaya Newspapers Limited withA.S.P. Guruge on 22.02.1995, in order to trace the printingplate relating to the article in question. In this office he wasable to trace the printing plate which was produced markedP7, relating to page 9 which carried the said article in theSunday Times Newspaper of 19.02.1995. He further said thatthey met the accused-appellant and his statement was laterrecorded at the C.I.D. office. According to this witness he wasunable to trace the manuscript of the said article and alsofailed to get at the person who wrote the article in questioneven though he had questioned the accused-appellant. Afterhis evidence the prosecution case was closed leading in evidencethe documents marked PI to P7.
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After the close of the prosecution case learned SeniorCounsel for the defence made an application to Court in termsof Section 200(1) of the Code of Criminal Procedure Act, No.15 of 1979, and moved for an acquittal of the accused-appellant on the basis that the charges in ihe indictment hadnot been established. Learned High Court Judge however byhis order dated 23.05.1996 decided that there were groundsfor proceeding with the trial and called upon the accused-appellant for his defence. Thereafter the accused-appellanthad sought to canvass the said order of the learned High CourtJudge dated 23.05.1996 by way of revision in the Court ofAppeal. The accused-appellant was unsuccessful in the Courtof Appeal, in that the Court refused to issue notice statingthat the accused-appellant had not made out a case.Thereafter the accused-appellant sought to challenge thesaid order of the Court of Appeal refusing nStice, in thpf'Supreme Court by way of special leave to appeal. Howlerthe Supreme Court by order dated 22.07.1996 refused hisapplication for special leave to appeal.
Thereafter the accused-appellant gave evidence in hisdefence and called several witnesses on his beha^'. Howeverhe did not invoke anyone of the ten (10) defence/available tohim under Section 479 of the Penal Code. Acciv^d-appellanttook up two main positions in his defence. Firstly, Mat the articlein question P3 (a) – P4 (a) was not defamatory in that the wordswere harmless and did not in any way reflect on the characterof Her Excellency the President. Secondly, that he was not thewriter of the article in question. Nevertheless he refused to divulgethe name of the writer. With regard to the publication of thearticle; even though he took up various contradictory andinconsistent positions, it would appear that he.had virtuallyadmitted having seen the article before the publication. The otherwitnesses were called by the accused-appellant to show thatthe article in question was not defamatoiy in their view. Howeverin cross – examination some of these witness admitted thepossibility that some reasonable right thinking persons wouldhave considered the article in question to bear defamatory
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meaning. It was also the evidence of some of these witnessesthat those who considered the article to be defamatory of thePresident could not be treated as being reasonable or fairminded persons. It is to be observed that opinion evidence isirrelevant in these proceedings. Hence at one stage, the Courthad to make an order refusing the defence from calling anymore witnesses to testify to the question whether the articlein question (P3(a) – P4 (a)) was defamatory or not.
At the hearing of this appeal it was submitted by learnedCounsel for the accused-appellant that the learned trial Judgehas misdirected himself with regard to the contents of the allegedpublication and thereby arrived at a wrong conclusion againstthe accused-appellant namely, that the article in question wasdefamatory. Learned Counsel further contended that there wasfailure on the part of the trial Judge to consider the article inquestion with an open mind from the point of view of thereasonable reader. Counsel submitted that meanings of thephrases such as “more circumspect”, “rear entrance”, “in theheat of the silent night” and “epicurean tastes” were overexaggerated by the High Court Judge to give a sinister meaning.Further learned trial Judge has failed to consider the article asit appeared lV the publication by paraphrasing the article* andomitting thihWord “party”, and thereby sought to examine adifferent article. He contended that by paraphrasing the articlethe trial Judge has given a distorted version to the article andhas concluded that the President has gone to the hotel for animmoral purpose. It was also suggested by Counsel that thetrial Judge has prejudged the issue by holding that the articlein question was defamatory in his preliminary order dated
and that when he decided the article to bedefamatory in his final judgment dated 01.07.1997 he hasconsidered additional material to hold that the article in questionwas defamatoiy.
One important question to be decided in this case, iswhether the article in question is defamatory or not, in terms ofthe Penal Code. A defamatory statement may be referred to as
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one which has a tendency to injure the reputation of a person.In other words as a result of the defamatory statement theordinary, reasonable or right thinking members of public wouldregard the person to whom the defamatoiy statement is referredto, with feelings of hatred, contempt, ridicule or disrespect. Thetest is objective and therefore the person responsible for thedefamatory statement cannot be heard to say that he did notintend the statement to be defamatory or that it was uttered injest. Intention to harm has to be gathered from the words usedapplying the reasonable man’s test. Further the tendency toinjure or lower the reputation of the person to whom thedefamatoiy statement is directed at, would be sufficient, eventhough the persons who read the defamatory statement maynot believe it or may even consider it to be untrue. Therefore itis settled law that a statement may be defamatoiy even thougty-the readers do not believe it tp be true.
The article that appeared in the relevant issues of theSunday Times Newspaper carried the following words underthe heading “Anura : Sootin says courting days/are here.”“Therefore, lets start at the top, about a party gra/ed by noneother than Her Excellency the Presidentj/'ChandrikaKumaratunga. The occasion was the birthday p^ ty of LiberalParly National List M.E Asitha Perera (Well Mu(%ar Chanaka- how?). The place was Mr. Perera’s permanent suite at the 5-star Lanka Oberoi. But this time, the President was morecircumspect about her appearance and used the rear entranceof the hotel, watched by a phalanx of security guards, and myself.She spent about 90 minutes at the party, from about 12.30 inthe heat of the silent night until 2.00 a.m. and, as for what sheate, we assure you; it was^iot food from the Hilton. The readingpublic now has a fair idea of its first citizen’s epicurean tastes.But what of her estranged brother?”
At the first glance of this article, it could be said withoutany measure of doubt that the cuticle in question is certainlynot complimentary of Her Excellency the President of this
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country. The place to which the President had gone wasMr. Asitha Perera’s permanent suite at Lanka Oberoi. Themanner of entering the Hotel, the article suggests that it wasdone cautiously or watchfully or in a manner to screenherself from being observed by using the rear entrance of theHotel. The time she had spent at the party was 90 minutes,from about 12.30 in the heat of the silent night until 2.00a.m. Readers are assured as to what the President ate, it wasnot food from Hilton. Finally the writer mischievously invitesthe reading public to have a fair idea of the President’sepicurean tastes, and pauses the question, what of herestranged brother? The article mentions of no guests, no foodand on the other hand impliedly the readers are told thatwhat the President ate was not food. The phrase “it was notfood from the Hilton” does not convey any sense other than« exclude fcs>d. Finally the reading public are told that theywfi^have a fair idea of the President’s epicurean tastes.Therefore since food has been excluded the phrase“epicurean tastes” would convey to the reader the impressionof sensual enjoyment.
This article conveys to the reader that the President wason her guar of being observed and therefore she used theback door tygain entrance to the Hotel. Time given in thearticle suggests that it was the dead of night, an ungodly hourand Her Excellency spent about 90 minutes in the heat ofthe silent night. It is pertinent to emphasize the fact thataccording to the unimpugned and unassailed evidence ofAsitha Perera by 11.30 p.m. or 12 midnight the party whichhe had on 05.02.1995 was over. Therefore it is manifestlyclear that the writer of the article deliberately maliciously andwrongfully endeavoured to imprest upon the reader’s mindthe idea of Her Excellency indulging in sensuous enjoymentas opposed to enjoying food. Further in the absence of anyother guests being mentioned (unlike in the other partiesreferred to in this column) the. readers will get theimpression that the only guest was Her Excellency thePresident and the host was Asitha Perera. In this perspective
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the heading of the article courting days are here is not withoutany significance. Therefore as learned Additional SolicitorGeneral submitted this article is suggestive of romance.
In evaluating defamatory material law does not apply rulesof construction which are used for the interpretation of a contractor a will. Such interpretations are not appropriate fordetermining natural or ordinary meanings of words in an actionfor libel or defamation. The correct method of approach to thequestion of construction was considered at length in the Houseof Lords in the case of Rubber Improvement Ltd. vs. DailyTelegraph Ltd111, where Lord Reid remarked thus :
“There is no doubt that in actions for libel the question iswhat the words would convey to the ordinary man: it is not oneof construction in the legal sense. The ordinary man does notlive in an ivory tower and he is not inhibited by aknowledgenvthe rules of construction. So he can and does read betweenanelines in the light of his general knowledge and experience of
worldly affairsWhat the ordinary man would infer without
special knowledge has generally been called the natural andordinary meaning of the words. But that expression is rathermisleading in that it conceals the fact that there are two elementsin it. Sometimes it is not necessary to go beyopi the wordsthemselves, as where the plaintiff has been caU/o a thief or amurderer. But more often the sting is not so much in the wordsthemselves as in what the ordinary man will infer from them,and that is also regarded as part of their natural and ordinarymeaning.”
Further when the Court is called upon to decide how areasonable man would understand the words alleged to bedefamatory in an article, Lord Reid in the case of Morgan vs.Odhams Press Ltd.m at 1162 -1163 observed as follows:
“If wetake the ordinary man as our guide then we
must accept a certain amount of loose thinking. The ordinaryman does not formulate reasons in his own mind: he gets ageneral impression and one can expect him to look again before
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coming to a conclusion and acting on it. But formulated reasonsare very often an afterthought. The publishers of newspapersmust know the habits of mind of their readers and I see noinjustice in holding them liable if readers, behaving as theynormally do, honestly reach conclusions which they might beexpected to reach. If one were to adopt a stricter standard itwould be too easy for purveyors of gossip to disguise theirdefamatory matter so that the judge would have to say that thereis insufficient to entitle the plaintiff to go to trial”
From what has been conveyed in this article can anyoneblame any reader in coining to the conclusion that Her Excellencythe President had entered the hotel from the back door, in away she would not be noticed to gain entry to the permanentsuite of Asitha Perera, in the dead of night and she had spentfc^jout 90 minutes with Asitha Perera, in the heat of the silentThe picture conveyed to the reader being sensuousenjoyment, since there is a reference in the article to theepicurean tastes and mischievously the writer assured the readerthat what'the President ate, it was not food. Therefore it is acalculated Attempt by the writer to injure the reputation of thePresident bpexposing her to hatred, contempt or ridicule in theeyes of the ojYinaiy, right thinking members of the society whohave read th^prticle. Furthermore the eminence or the statureof the person concerned as in this case, the democraticallyelected President of this country or the first citizen of the countrywould make the defamatory statement more injurious. Besidesin this instance since the material in the article being false, itwould strengthen the proposition that the writer or the publisherwanted to defame the President. Cumulative effect would bethat the article in question will ha$e the capacity to imputedishonorable conduct to the President.
The meaning intended by the writer or the publisher maynot be very relevant for the purpose of construing the wordsin an article. The relevant factor is how would a reasonableman may have understood such words. The position in
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English Law is now settled. As Russell LJ in the case of Cassidyvs. Daily Mirror Newspapers Ltd.(3) at 354 put it shortly.“Liability for libel does not depend on the intention of thedefamer; but on the fact of defamation.” In our law, Penal Codemakes the requisite criminal intention or knowledge anadditional ingredient of the offence of defamation and the burdenof proving it is on the prosecution. Vide Vaikunthavasan vs.The Queen(4> Further the meaning in which the words were infactunderstood is irrelevant for the purpose of deciding the naturaland ordinary meaning of the words. As the law of defamation isconcerned with the effect of the words on ordinary people itmight have been supposed that the evidence of the sense inwhich the words were infact understood by the readers wouldbe admissible. However, it is clear that no such evidence can beadmitted. This long standing rule as stated by Goddard LJ inHough vs. London Express Newspaper Ltd.151 at 515 reads^Lfollows: “In the case of words defamatory in their ordinarys^nsethe plaintiff has to prove no more than that they were published;he cannot call witnesses to prove what they understood by thewords;…. the only question is, might reasonable peopleunderstand them in a defamatory sense?” In otherTyords whatis necessary to be considered is whether the wordsrai the articlehas the potential to convey a defamatory meanim^o an averagereader. Therefore it is unnecessary to show thatCSe reputationof Her Excellency the President has infact been injuriouslyaffected.
Now we give our mind to the complaint made by learnedPresident’s Counsel that the learned trial Judge has attemptedto paraphrase the article in a defamatory sense omitting theword “party” and therelfy has reached a wrong conclusionregarding the article. He contended that the writer of the articledid not say anything in the manner the trial Judge hasattempted to paraphrase the article in question. Paraphrasedversion according to Counsel was an edited or distorted version.
It would appear from the examination of the judgment, whatthe trial Judge has done was to pinpoint to the main contents
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in the article under the caption ‘Anura Sootin says courting daysare here” and to consider the sense in which the excerptconcerning Her Excellency the President had been used to wit,“Her Excellency spent 90 minutes in Mr. Asitha Perera’spermanent suite in the heat of the silent night and indulged inepicurean tastes." This is what the writer wanted to convey tothe reader. Even if the word “party” was included whenparaphrasing, in our mind it would not have made anydifference, since no other guests were mentioned in thearticle. Therefore the use of the word “party” by the writerseems to our mind an attempt to disguise the defamatorymeaning in the article. Learned Additional Solicitor Generalsuggested at the hearing that the use of the word “party” wasa "sham” on the part of the writer, since it carried no meaningto the reader’s mind. Hence in our view the learned trial
B
ated to paraphrase the article for the purposeIear understanding of the contents in thelice has been done to the accused-appellant,with the allegation that the trial Judge has;r exaggerate the meanings of some of therticle and to give them a sinister meaning.
: the article is clearly defamatory of Her’resident.
tted by learned Counsel that the learned trial
Judge had prejudged the case by holding that the article inquestion was defamatory in his preliminary order dated
At the close of the prosecution case the defencemade application to Court in terms of Section 200 (1) of theCode of Criminal Procedure Act, moving for an acquittal ofthe accused-appellant on the basis that the charges had notbeen established by the prosecution.^n this situation the Courthad to make a determination with regard to the adequacy ofevidence to call for a defence. At the stage of the close of theprosecution case, the Court had to be satisfied that thepublication in question was defamatory within the meaningof Section 479 of the Penal Code, so as to call for a defencefrom the accused-appellant in relation to the two counts in
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the Indictment. Therefore at that stage the prosecution shouldhave established or proved the ingredients which constitute theoffence of defamation under the Penal Code, so that there was aprima facie case before the Court to warrant calling for a defence.This had to be so at the stage of the close of the prosecutioncase, even without the defence making the submission of nocase to answer. In this case however defence at the close of theprosecution case took up the position that there was no case toanswer. Therefore the Court had to be satisfied that there was aprima facie case, so that the submission of no case to answercould be rejected. A prima facie case necessarily means a casebeyond reasonable doubt – at first sight i.e. on the evidenceavailable on record as at the close of the prosecution case. Inorder to establish a prima facie case in an action for defamationthere must be proof that the words complained of were infact . -published. The words were defamatory of the President aj*ithe words were published by the accused-appellant witjwcheintention or knowledge to defame the President /4r thecircumstances in which the accused-appellant was responsiblefor the publication. S.N. Saha in his book Law of Evidence 1991Edition Page 495 (cited by learned High Court Jud/e) the term“prima facie case” has been explained as follows. “Theprosecution must discharge the initial or gene^tl burden ofestablishing a prima facie case of guilt of accvSid beyond areasonable doubt. Then and then only the question of burdenof proof on accused relating to general exception to criminalliability arises.” Therefore when the defence submitted that atthe end of the prosecution case that there was no case to answer,the Court necessarily had to dicide whether the ingredients ofthe offence of defamation had been established under the penalCode. In doing so Court Had to consider whether the article inquestion was defamatory, so as to decide the question whetherthere was a prima facie case established by the prosecution.This was not a case of prejudging of any issue but judging asrequired by law or in conformity with the law. However if thedefence did not submit that there was no case to answer,then, the trial Judge would have merely called for a defence
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without making an order with regard to the sufficiency of theevidence to call for a defence. Hence after having created asituation where the Court had to make the said order dated
there is no justification in making the complaintthat the Court had prejudged the case by deciding that the articlein question was defamatoiy. It is to be remembered that whetherthere was no contest regard to the sufficiency of evidence to callfor a defence or not, the trial Judge had to consider the questionwhether there was a prima facie case or not. The only differencebeing that in the situation where the defence did not contestthe sufficiency of evidence to call for a defence, the Court couldhave merely called for a defence from the accused-appellantwithout taking the trouble to evaluate the evidence by makingan order such as the order dated 23.05. 1996. In the
S
istanc^there is no merit in the submission of the learnedel that the trial judge has prejudged the case, by holdinge article in question was defamatory.
Leaimed Counsel for the accused-appellant made thesubmissiqtt that there was a difference in the treatment of thearticle in question to be defamatoiy in the initial order made bythe High Cot Judge on 23.05.1996 when called for a defencefrom the accused-appellant and in his final judgement when hedecided to cJlvict the accused-appellant. Counsel contendedthat when the article was considered to be defamatory at thestage after the prosecution case was concluded and thereafterwhen the article was considered to be defamatory at the end ofthe defence case, to convict the accused-appellant, additionalmaterial or grounds were considered for the purpose of decidingthe article in question to be defamatory. With regard to thissubmission it is to be noted that wheif the Court initially decidedthe article to be defamatory, it did so after considering evidenceled by the prosecution in order to see whether there was aprima facie case. However when the Court decided the articlein question finally to be defamatory, it did so after consideringthe evidence presented by the defence and the submissionsof Counsel as well, or in other words after considering the
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evidence in Its totality. Further when the Court considered thearticle initially to be defamatory, it did so in order to see whetherthere was a prima facie case, in terms of Section 200 of theCode of Criminal Procedure Act whereas, when the courtconsidered the article in question to be defamatory finally, itdid so for the pin-pose of convicting the accused-appellant interms of Section 203 of the said Act. Therefore the object or thepurpose of evaluating evidence available in the two situationswere different. Thus if the Court had considered additionalmaterial to conclude that the article in question to be defamatory,one cannot find fault with the trial Judge because he had tocomply with the law. Besides when the tried Judge consideredthe article to be defamatory for the purpose of convicting theaccused-appellant, he had additional material to be considerednamely the defence evidence and the submissiqns of Counsel,The responsibility of the trial J^idge was heavier in this situatiry,when he passed judgment in terms of Section 203 of the/x>deof Criminal Procedure Act. Hence we see no merit/ft thissubmission of learned Counsel and it has to fail.
It was submitted by learned Counsel for tj*e accused-appellant that an essential ingredient in the lVJount of theindictment, namely, the requirement of prying beyondreasonable doubt that it was the accused-appell.£it who madeor published the article in question (P3(a) – P4(a)) has not beenestablished by the prosecution. Counsel’s contention was thatthe prosecution did not lead evidence to show that it was theaccused-appellant who wrote the article in question but thelearned trial Judge has convicted the accused-appellant on thebasis that he wrote the article in question basing his findingson the evidence of the accused-appellant. It was the Counsel’ssubmission that even on the evidence of the accused-appellantthere was no unqualified admission that he was the writer ofthe article, but the trial Judge has come to the conclusion thatthe accused-appellant was the writer of the article on the footingthat he had failed to disclose the name of the writer, that he hadwritten three paragraphs (stories) in the gossip column, that
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the gossip column had been written by one writer or one person,that there was some similarity in the words that appeared inthis article and the words that appeared in a previous editorial,that the reluctance of Mr. Wijewardana the proprietor of thepress to disclose the name of the writer and finally in view of thephrase in the article (P3(a) – P4(a))…. “watched by myself"….
At the end of the prosecution case, when the Judge calledupon the accused-appellant for his defence Court was satisfiedthat the prosecution has established that the article in questionpublished in the Sunday Times Newspaper of 19.02.1995, wasdefamatory of her Excellency the President. Further the articlein question was published in circumstances in which theaccused-appellant was responsible for the publication, since
■
or of the said newspaper. On this matter there:e of Ranjith Wijewardana the proprietor of theNewspaper that the accused-appellant hasr of this newspaper since 1990 and he wasr the news that were published in the saidelation to the 2nd count in the indictment undericil Law, the editor of a newspaper is deemed'ence of defamation unless there is proof thatcommitted without the knowledge of the editorercised all due diligence to prevent the
commission of the offence and in this case the offence ofdefamation. The prosecution has established in this case thatthe accused-appellant was the editor of the Sunday TimesNewspaper at the time when the article in question waspublished in the newspaper. At the end of the case on thetotality of the evidence the Court has convicted the accused-appellant on both counts. In respect of the 1st count theaccused-appellant has been convicted since there wasevidence to show that as editor he had seen the article inquestion before the publication. On the other hand there wasmaterial before the Court to conclude that the accused-appellant was the writer of the article as well. In respect ofthe 2nd count the accused-appellant was convicted since he
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failed to bring himself under the proviso to Section 14 of thePress Council Law by proving that the offence of defamationwas committed without his knowledge or that he exercised alldue diligence to prevent the commission of the offence. As statedabove the effect of the accused-appellant’s evidence was that heprovided material for the court to draw the conclusion, that hehad not only published the defamatoiy article in question butalso to draw inferentially that he himself was the writer of thesaid article. Therefore it is seen that the learned trial Judge hasconsidered the totality of the evidence in the case before he cameto the conclusion that the accused appellant was guilty of the1st count.
However it must be stated here that for the purpose ofconvicting the accused-appellant on the first count it is notnecessary to establish that he is the writer of defamatcwg'article in question. It is suffidient, if there is material to ]£vidthat he published the defamatory article, for Section 9 of
the Penal Code states whoevermakes or publtafies any
imputation However in this case the leayned tried
Judge has reasonably and justifiably come to theryonclusionthat the accused-appellant who being the editor not onlypublished the defamatory article in question Lut he infactwas the writer of the said article as well and/o he was thewriter he could not have written it other than for the purposeof publishing it – he being the editor. In order to reach theconclusion that the accused-appellant was the writer of thearticle the trial Judge has used the following material. Firstlythat the accused-appellant is the writer of the defamatoryarticle in question because of his failure to disclose the nameof the writer. Accused-appellant had refused to disclose thename of the writer on a very vague basis that, the disclosureof the writer’s name goes to the root of press freedom. Howeverthere is no such privilege to refuse to disclose the name ofthe writer of a defamatoiy article. There is the privilege not todisclose the source of information but in the present case hewas not asked to disclose the source of information but onlyasked to disclose the name of the writer of the article in
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question and there is no such privilege to refuse to disclose thename of the writer. In this instance it is to be remembered thatthe contents of the article in question being false even theprivilege of refusing to disclose the source of information is notavailable to the accused-appellant. This is because accurateand clear reporting is the responsibility of the press. Thereforeif the press has abused that responsibility, the press does notdeserve such privilege. This point was highlighted by LordDenning in the case of British Steel Corporation vs. GranadaTelevision Ltd.t6> at 805 when he said “in order to be deservingof freedom, the press must show itself worthy of it. A free pressmust be a responsible press. The power of the press is great. Itmust not abuse its power. If a newspaper should actirresponsibly, then it forfeits its claim to protect its source ofinformation. * Therefore in this case it would appear that theac&used-appellant did not have rthe privilege even to refuse todisclose the source of information for the reason that thecontent^, of the article was false. Otherwise no man would besafe fromtetn irresponsible press as evident from the facts ofthis case, mjrther he could have given the name of the writer, ifhe was norwe writer, an act which would have been done byany sensiblewerson. If he did so, it would have to some extentreduced his Ability on the 1st count and even on the 2nd count,since it was easier to show that the publication was without hisknowledge as stated in the proviso, if he was not the writer.Further in this instance it would appear that Section 114 (G) ofthe Evidence Ordinance would apply for the reason that if heanswered this question it would have been unfavourable to him.Therefore since the accused-appellant did not disclose the nameof the writer the learned trial Judge considered it as acircumstance which was very suggestive of the accused-appellant being the writer of the article in question.
Another ground considered by the trial Judge to holdthat the accused-appellant was the writer of the article inquestion is the fact that in his evidence he has admitted having
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written three paragraphs in the entire gossip column. This factas the trial Judge commented has been admitted by theaccused-appellant despite the fact that earlier, he had refusedto disclose the name of the writer of the article as it goes to theroot of press freedom. It is to be noted that the accused-appellanthad volunteered to come out with this fact of having writtenthree paragraphs in the gossip column after a lapse of aboutone year at the trial and had omitted to state this fact in hisstatement to the C.I.D. A contradiction was marked as P10,from the accused-appellant’s statement to the C.I.D. where hehad stated that the “column is written by one writer.” It wasmarked as a contradiction, when the accused-appellant in hisevidence took up the position that the gossip column was writtenby several writers. At the hearing of this appeal a submissionwas made by the learned Counsel for the acc^ed-appellanf
that the contradiction marked? P10, was used by the trial Jij^geas substantive evidence to hold that the column was wrig^n byone writer. However there is no justification in this allegationsince it would appear that the trial Judge has onlyfased thiscontradiction (P10) to demolish the evidence of ip; accused-appellant in Court, that the gossip column wan-written byseveral writers. This contradiction P10, infjpft seriouslyaffected the testimonial trustworthiness of(ofe evidence.Learned trial Judge has also observed that the accused-appellant in his evidence had taken up the position that thegossip column was written by several writers to overcome theposition he had taken earlier in his statement to the C.I.D.that column was written by one writer. It would appear thataccused-appellant’s position that he had written threeparagraphs only in this gossip column without bothering toread the contents of this article (gossip column) that appearedbefore and after the three paragraphs he wrote in the gossipcolumn is unacceptable. This is not the conduct of areasonable person, when applying the much hallowed test ofprobability and improbability. Further when one examinesthe first paragraph written by the accused-appellant as
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admitted by him in his evidence, which has been referred toby the trial Judge reads as follows:- “Now enough about parties.Let’s get down to more serious things for instance this week’smixed-up between ministers for an official residence, caused bya third ministry” what is implied from this paragraph is thatthe writer had knowledge of all the parties referred to in thegossip column. This is one indication that the gossip column isthe work of one writer.
Learned trial Judge has also considered the 1st paragraphin the gossip column which reads as follows: “For the high andmighty in all of Sri Lanka, be they blue or green, purple orwhatever colour of the political rainbow this appears to be party
time and we feel if our readers want it; we shall deliver.
therefore, leTli start at the top, about a party graced by noneo^W then Her Excellency the President, Chandrika
KumeVatungaThe trial Judge has come to the conclusion
that thevyriter who wrote or composed the Is* paragraph of thegossip commn referred to above knew of all the parties seven innumber. Ti^erefore the learned trial Judge has reasonably drawnthe inferencfMhat the gossip column was the work of one writer.Further it w&Md appear that the accused-appellant after he wasconfronted with all these situations, despite having said earlierthat the gossip column was the work of several writers, hewillingly or unwillingly had admitted that the gossip columnwas the work of one person or one writer. To use his own wordshe had said that “one writer puts together such news items andmakes one composition.” There is also the other factor notedby the trial Judge namely, on the face of the relevant gossipcolumn itself the words “by our gossip columnist” are printedwhich is also an indication that the gossip column is the workof one writer or one person. If that be the case it would be difficultfor one to accept the position taken up by the accused-appellantat the trial, that he wrote only three paragraphs out of the entiregossip column which had over 35 paragraphs.
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The trial Judge has also considered the sameness in theexpression viz. “in the heat of the silent night” in the article inquestion and the expression that contained in an editorial whichappeared in the Sunday Times Newspaper of 16.10.1994 whichread as follows:- “slipping out the country in the heat of thenight without telling a soul.” The said editorial was marked atthe trial as P5 (a) and it would appear that this editorial hadbeen written in relation to Her Excellency the President. Eventhough the learned President’s Counsel at the hearing remarkedthat no one has the monopoly of the words, one cannot blamethe trial Judge for considering this fact along with many othersubstantial grounds for reaching the conclusion he arrived atto the effect that the accused-appellant was the writer of thegossip column and more specifically the defamatory article inquestion i.e. P3 (a) – P4 (a). The sameness in the choice of wordswhich is so prominent can be persuasive in certaincircumstances to draw the conclusion that both expressionsare the work of one writer. Besides in this case it is to be observedfrom the evidence of the accused-appellant that he hadattempted to dissociate himself from writing the said editorialP5 (a) by saying that sometimes he had got the sub editor towrite the editorial by sending his notes on which the editorialhad to be based. However when the accused-appellant wasspecifically questioned whether the words “heat of the night”that appeared in the said editorial P5 (a) were his words, hehad answered it by stating that he was unable to recall or recollectit. Later he had also stated that those words “in the heat of thenight” can be my words but they are not my words.” Thereforefrom his answers it would appear that he has not denied italtogether. One should also examine this matter in thebackground of the fact that the editorials are normally writtenby editors even though it may not be a conclusive factor. Besidesat some point of time accused-appellant had admitted theposition that the editorial is written by him and at the sametime he sought to retract his position by stating that the editorialis written either by him or directly on his instructions. Accused-appellant also preferred not to disclose the name of the writer •of the said editorial P5 (a) dated 16.10.1995 without any
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justifiable reason or privilege. Therefore the only possible reasonone could think of for his refusal to disclose the name of thewriter of this editorial P5 (a) is that, he himself was the writer ofthis editorial and if that be the case the sameness of the twoexpressions “in the heat of the silent night” and “in the heat ofthe night” have some relevance and worth consideration as thetrial Judge has done.
Another matter considered by the trial Judge to hold thataccused-appellant was the writer of the defamatory article inquestion was the failure of Mr. Wijewardana, the proprietor orChairman of the Sunday Times newspaper to mention the nameof the writer of the defamatory article in question. What he toldCourt when he was questioned on this matter was that he didnot know as to who wrote this article in question. Further whenhe was questioned as to whether the said article P3(a) – P4(a)had been published without the knowledge of the accused-appellant his position was that it was a difficult question toanswer. For Mr. Wijewardana to say that he did not know thewriter of this defamatory article in question, it is somethingunbelievable. It is more so for the reason that an inquiry washeld on his directions regard to this matter after the Presidenthad complained to him, and thereafter it is in evidence that thereporter who had furnished that information had beendismissed from service. Hence the position taken up by Mr.Wijewardana that he did not know the name of the writer hasto be rejected. A conclusion that could be drawn from thebackwardness on the part of Mr. Wijewardana to mention thename of the writer of the article in question is that the accused-appellant himself was the writer. On the other hand if someoneelse was the writer of the defamatory article, Mr. Wijewardanamay well have disclosed the name of the writer for the reasonthat such disclosure may well have helped the accused-appellantto disown liability. In this instance it would appear that it wasalso in the interest of Mr. Wijewardana to plead ignorance regardto the name of the writer, since there was some responsibilityon his part as the proprietor of the press for this publication.In the law of defamation every person who takes part in the
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publication of defamatory matter is prima facie liable in respectof that publication. In the case of the publication of defamatorymatter in a newspaper, the writer of the article, the proprietor,the editor and the printer of the newspaper can be held liablesubject however to the defences that are available to them.Section 14 of the Press Council Law says that when any offenceis committed through the means of a newspaper, the proprietor,publisher, printer, editor and journalist of such newspaper isdeemed guilty of the offence unless he brings himself under theproviso.
Tfie last point on which the trial Judge has concluded thatthe accused-appellant was the writer of the defamatory articlein question was the effort made by the accused-appellant toverify whether Her Excellency the President had infact attendedMr. Asitha Perera’s birthday party from Mr. Navin Gunaratne,without asking the writer himself. In the article it is stated thatthe writer himself was a witness to the President’s entry to theHotel by the rear entrance. The relevant portion of the said article
states as follows:- “but this time, the President was more
circumspect about her appearance and used the rear entranceof the Hotel, watched bv phalanx of security guards, and mvself.”(Emphasis is by Court). Therefore the writer has given a clearimpression to the reader that he himself was a witness to thePresident’s entering the Hotel from the rear entrance in order togive more credence to the story. However it was the evidence ofthe accused-appellant that no sooner the President complainedregard to the article, he contacted Mr. Navin Gunaratne to findout whether Her Excellency the President in fact attended thebirthday parly of Mr. Asitha Perera. It was his evidence that hedid not ask the writer whether he was there, even though theaccused-appellant had stated that he believed what the writerhad stated in the article concerning the President. It seemsirrational conduct on the part of the accused-appellant to askMr. Navin Gunaratne who he thought would have attended thebirthday party of Asitha Perera to find out whether Her Excellency
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the President had attended the birthday parly, without askingthe writer himself unless otherwise the accused-appellanthimself was the writer. This seems to be the reasoning of thelearned trial Judge. Therefore it is on a consideration of all theseitems of circumstantial evidence referred to above, that thelearned trial Judge has come to the conclusion that the accused-appellant himself was the writer of the defamatory article.Therefore in our view the conclusion arrived at by the trial Judgethat the accused-appellant is the writer of the defamatory articleon the material referred to above, is irresistible and logicallycompelling. Thus this fact has been established beyondreasonable doubt.e
As stated before to convict the accused-appellant on the 1stcount it is not necessary to establish the fact that he was thewriter of the defamatory article even though that fact has beenestablished in this case. It is sufficient that there is proof beyondreasonable doubt that the accused-appellant published orcaused the publication of the said article and therefore he beheld criminally liable or convicted on the Is* count. In otherwords there should be material to show that the accused-appellant who had complete control or right to remove theoffending article (P3(a) – P4(a)) did not prevent it being publishedor failed to remove it and caused or sanctioned the publication.Regard to this matter learned High Court Judge had referred totwo cases to show that a person can be held liable for merepublication or the failure to remove the defamatory articlewithout proof of the fact that he is the writer of the defamatoryarticle concerned. One such case was the case of Htrd Vs. Wood171referred to in the judgment of Slesser L. J. in the case of ByrneVs. Deane181 at 835. In that case some unknown person hadsuspended a placard containing defamatory matter between twopoles on the road way near a gate leading into certain grounds.There was no evidence as to who wrote the words on the placardor who put it up on the road way. But another person remainedthere for a long time, sitting on a stool and smoking a pipe, andcontinually pointed at the placard with his finger and thereby
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attracted to it the attention of all who passed by. The Court ofAppeal consisting of Lord Esher M.R., Lopes and Davey L.J.J.,held that the conduct of the person who was pointing at theplacard constituted evidence of publication. In the case of ByrneVs. Deane, (Supra) referred to above, where the facts were thatsome unknown person had put up on the wall of a club aplacard containing defamatory material. It was held that sincethe defendants who had complete control of the walls of theclub had not removed the placard or the paper after they hadseen it – the publication had been made with their approval. Inthis case Greer L. J. observed that “the words were defamatoryof the plaintiff, and that the two defendants by allowing thedefamatory statement to remain on the wall of the club weretaking part in the publication of it.” (Vide page 818 – 819).Therefore it is well settled that the failure to remove thedefamatory matter, provided the person concerned had controlover it, constitutes publication.
In the present case the accused-appellant being the editorof the Sunday Times Newspaper, he had full control over theselection of the material to be published in the paper. On oneoccasion when the accused-appellant was questioned withregard to the publication of the defamatory article, he admittedthe position that he saw the said article just before publication.However later he retracted from this position by stating that hesaw the relevant article after the publication of the provincialedition (P3(a) which was the earlier edition) but before thepublication of the city edition (P4(a)). He further said that hecould distinctly remember that a photo copy of the pagecontaining the gossip column was sent to him and that he readit prior to the publication of the city edition of the Sunday Times.The city edition being the later edition, if the gossip column wassent to the accused-appellant for his approval prior to thepublication of the city edition, then there is no reason as to why .the gossip column was not sent for his approval prior to thepublication of the provincial edition which was anterior in point
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of time to the city edition. However it was the accused-appellant’sevidence at one stage, that he saw the article in question i.e. thegossip column just before the publication without making anyqualification as to whether it was the city edition or the provincialedition. Further he had also admitted in cross examination thatthe answer he had given earlier namely that, he had read thedefamatory article just before the publication is correct, that ithad been correctly recorded and that it was his full answer tothe question as to when he saw the said article. Thus the effectof this answer that he read the article in question just beforepublication means that it was published with his knowledgeand authority.P
It may be mentioned here that, even if one were to acceptfor the sake of argument, the position taken up by the accused-appellant namely, that he read the defamatory article in questionbefore it was published in the city edition only, that fact wouldnot absolve the accused-appellant from liability, since every freshrepetition of a defamatory matter is a publication and constitutesthe offence of defamation. Thus in the law of defamation, tale-bearers are as bad as tale-makers. Therefore in this case thereis clear evidence from the accused-appellant that he being theeditor of the newspaper he had the authority to refuse thepublication of any article or permit the publication of any articlein the newspaper. In this instance the accused-appellant hadcertainly sanctioned or authorized the publication of the saiddefamatory article in the city edition. He further said that heread the article in question and according to him there wasnothing defamatory in the said article. However if there wasanything defamatory in it, he would have either altered it orremoved the said article. In any event if he did not approve thesaid article for publication, it would not have been published.Thus it is very clear that since the accused-appellant hadsanctioned the publication of the defamatory article in question,it had received publicity and the essence of the offence ofdefamation is publication. Therefore the failure of the accused-appellant to remove the defamatory material referred to in theindictment, he has consented to the publication. It is this aspect
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of having control over the removal of the article in question andthen without removing it, permitting it to be published in thenewspaper, what matters in this case, for the liability of theaccused-appellant, at the trial that he was not the writer butsome one else. In fact it was the evidence of the accused-appellant, even if he could have removed the article in question(P4(a)) from the city edition if he thought that it was defamatory,but in this instance, his position was that he thought it was notso, and therefore there was no need for him to remove it. Thisconduct clearly amounts to publication of defamatory matterby the accused-appellant. Even though the case against theaccused-appellant has been considered in a limited manner onthe basis that he was only responsible for the publication of thecity edition (P4(a)) which contained the defamatory matter, itmust not be forgotten that trial Judge has drawn the conclusionon a rational basis that the accused appellant had approvedthe publication of the defamatory article not only in the cityedition but in the provincial edition as well. Besides learnedtrial Judge on very substantial grounds has come to the firmconclusion that the accused-appellant was infact the writer ofthe defamatory article as well as the entire gossip column whichappeared in the*Sunday Times Newspaper of 19.02.1995.Therefore in the light of all these circumstances referred to above,we are unable to agree with the submission of leafnedPresident’s Counsel that the ingredient of the offence ofdefamation namely that it was the accused-appellant who madeor published the article in question (P3(a) – P4(a)) has not beenestablished beyond reasonable doubt. It was a decision thatthe learned trial Judge has made after evaluating the totality ofthe evidence adduced before him and in our view he has verycorrectly decided this matter.
Learned Counsel for the accused-appellant further arguedthat the requisite intention or knowledge on the part of theaccused-appellant to defame the President has also to beestablished beyond reasonable doubt in order to convict him
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on the first count i.e. the offence of defamation. Counselcontended that since the article in question is not per sedefamatory or that it is so ambiguous to be considered asdefamatory, this ingredient of the offence has not beenestablished by the prosecution. Besides the accused-appellantdid not think or consider the article in question to be defamatory.It was further submitted that since the accused-appellant hadgiven evidence referring to the close association the proprietorof the press Mr. Ranjith Wijewardana and he had with HerExcellency the President and the fact that several editorials andother articles (D4 – D22) had been written by him praising HerExcellency the President, and her government there Was nointention on his part to defame the President. Thus the pointwas made by Counsel that the learned trial Judge has failed totake into account any of these matters that were in favour of theaccused-appellant before he presumed that the requiredintention to defame the President has been established againstthe accused-appellant.
As stated earlier in this judgment in defamation the test isobjective and therefore the person responsible for the defamatoryarticle cannot be heard to say that he did not think or intendthe article to be defamatory. The liability for defamation doesnot depend purely on what was intended by the defamer butthe tendency to injure the reputation of the President in theeyes of the right thinking members of the public. The fact thatthe accused-appellant on earlier occasions had said good thingsabout the President and her government does not absolve himfrom liability with regard to a defamatory statementsubsequently made or published against the President. The vitalissue is whether the particular statement or article in questionis defamatory or not. Generally the intention of a person issomething that is in his mind and therefore it has to be inferredfrom the words used, for there being no other criteria. Thereforewhen words and phrases used are prima facie or per sedefamatory as in this case, the intention has to be presumed onthe basis of the principle that a man intends the natural and
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probable consequences of his act. It may also be noted that in aprosecution for criminal defamation as defined in Section 479of the Penal Code the intention or knowledge on the part of theaccused-appellant to harm the reputation of Her Excellency thePresident by the said publication would be sufficient. Whendefamatory material is published in a newspaper, the intentionor knowledge to harm the reputation may be more readilyinferred. The article in question relating to this case being perse defamatory it would not be difficult to hold that the requiredintention or the knowledge to harm the reputation of HerExcellency the President has been established. The fact thatthe arficle in question is false, it would further strengthen thisposition. The defence submission that the accused-appellantdid not intend to harm the reputation of the President has norelevance to the facts of this case. The presumption that a manintends the natural and probable consequences of hisintentional acts may be rightly applied to the facts in this case,to infer the intention or knowledge since the accused-appellanthad directly published the defamatory article or he hadknowingly authorized or caused it to be published. Thereforein our view learned trial Judge was correct in holding that therequired intention or knowledge to harm the reputation of thePresident has been established beyond reasonable doubt. Hencewe hold that the learned trial Judge has correctly convicted theaccused-appellant on the 1st count, since all the ingredients ofthe offence of defamation have been established beyondreasonable doubt.
With regard to the 2nd count in the indictment brought interms of Section 15 read with Section 14 of the Press CouncilLaw, learned Counsel for the accused-appellant submitted thatin order to establish the said count all the ingredients of theoffence of defamation have to be established. Therefore Counselcontended that in this case, since the accused-appellant didnot intend to defame the President by the publication of thesaid article, the offence in count 2, has been committed without •
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the knowledge of the accused-appellant. In other words theCounsel was trying to make out a point that the offence ofdefamation In this case has been committed without theknowledge of the accused-appellant and therefore he wouldcome under the proviso to Section 14 of the Press Council Law.Counsel complained that the learned trial Judge has notconsidered this position namely the absence of intention orknowledge to defame the President. Besides Counsel submittedthat it was open to the accused-appellant to establish the factthat the offence (count 2) was committed without his knowledgeon a balance of probability.
It is to be noted that according to count 2, of the indictment,once it is established that the article in question i.e. P3(a) -P4(a) which is defamatory within the meaning of Section 479 ofthe Penal Code has been published in the'newspaper, theaccused-appellant who is the editor of the newspaper is deemedguilty of the offence set out in terms of Section 14 and 15 of thePress Council Law unless he is able to bring himself under theproviso to Section 14 of the said law. In other words when it isestablished that the defamatory material has been publishedin the newspaper, where the accused-appellant is the editor, heis deemed guilty of the offence unless he could bring himselfunder anyone of the two defences available i.e. by proving thatthe offence in question was committed without his knowledgeor that he exercised all due diligence to prevent the commissionof the offence. In relation to the 2nd count the first matter to beconsidered is whether the article published in the Sunday TimesNewspaper of 19.02.1995 is defamatory within the meaning ofSection 479 of the Penal Code. With regard to this matter wehave already decided that the offence of defamation in terms ofSection 479 of the Penal Code has been proved. It is only thenthat the accused-appellant as the editor is deemed to be guiltyunder Section 14 of the Press Council Law, unless he comeswithin the proviso to Section 14 of the Press Council Law.
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The submission of learned Counsel that since the accused-appellant did not think that the article was defamatory or thatit was harmless and therefore the offence must be held to havebeen committed without the knowledge of the accused-appellantwho should be acquitted on count 2, cannot be accepted. Interms of the proviso to Section 14 of the Press Council Lawwhich says that “no such person shall be guilty of the
offenceif he proves that the offence was committed without
his knowledge” on a balance of probability. Therefore thissubmission that the accused-appellant did not have thenecessary knowledge cannot hold good for the reason that theeditoicof a newspaper will be guilty of an offence under Section14 of the Press Council Law if as stated in Section 15 of thesaid law that “any statement or matter concerning a personwhich will amount to defamation of such person within themeaning of Section 479 of the Penal Code” is published in thenewspaper. What the accused-appellant intended is not material,but what matters is whether in the eyes of the right thinkingmembers of the society the material published by the accused-appellant has the capacity to defame Her Excellency thePresident. In other words the editor of a newspaper cannotescape criminal liability by saying that he believed the article inquestion to be non defamatory. In order to get relief under theproviso to Section 14 of the Press Council Law the editor, – theaccused-appellant in this case has to prove, on a balance ofprobability that the publication was without his knowledge,since there would not have been the commission of any offencehad there been no publication in the newspaper. However thefacts show that the accused-appellant has failed to prove on abalance of probability that the publication was without hisknowledge. On the other hand there is cogent material to showthat publication of the defamatory article had taken place withthe accused-appellant’s knowledge and on his expressauthorization. The fact that the publication of the relevant articleP4(a) in the city edition has been freely admitted by the accused-appellant without any reservation, he has to be convicted oncount 2: Eventhough he has taken up the position that the
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publication of the provincial edition P3(a) had been withouthis knowledge, it is to be remembered that at one stage whenhe gave evidence he had admitted having seen the defamatoryarticle before publication, and the said answer included boththe city and the provincial edition. Besides it should also benoted as shown above that the accused-appellant is the makerof the article in question as well. Further with regard to theprovincial edition even if one were to assume that the accused-appellant’s evidence that he did not see the article in questionbefore the publication in the provincial edition created a doubt,in such a situation there is no proof, since the standard of proofis on a balance of probability. However the evidence se&ns toshow that the accused-appellant had knowledge prior topublication of the provincial edition as well.
At this juncture it is pertinent to refer to the nature and themanner in which the accused-appellant had given evidencebefore the learned trial Judge. It would appear to us, as wasobserved by the trial Judge himself that accused appellant’sevidence in relation to some of the material issues in this casehad been very evasive, inconsistent and per se contradictory.When giving evidence at times he had been vacillating and attimes he had attempted to manipulate evidence to suit his ownends. When perusing his evidence one gets the impression thatthe accused-appellant had lied to court on some of the materialissues and had come out with the truth under incisive crossexamination or when he spoke the truth not realizing theimplications of the answer he had given or when had spokenthe truth during his unguarded moments. Therefore it could besaid without any measure of doubt that the accused-appellanthad uttered falsehood on a number of matters at his convenienceand for his advantage. When an accused person intentionallyutters falsehood in Court such falsehood weakens his case andadvances in strength the case of his adversary. In fact the viewhas been expressed that in certain circumstance, the lies utteredby a party could amount to corroboration of the case of his
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adversary. In the case of R Vs. Lucas19’ at 1011 where Lord LaneC. J. in the course of his judgment made the following observationin relation to giving false evidence by the defendant (accused-appellant in this case). “It accords with good sense that a lietold by a defendant about a material issue may show that theliar knew that if he told the truth he would be sealing his fate”….Further he observed “As a matter of good sense it is difficult tosee why, subject to the same safeguard, lies proved to have beentold in court by a defendant should not equally be capable ofproviding corroboration. In other common law jurisdictions they
are so treated”.
c
A submission was made by learned Counsel for the accused-appellant that an alternate count i.e. Count 2, has been broughtin the indictment under the Press Council Law, because theprosecution had doubts in establishing the first count underSection 480 of the Penal Code. In other words what the Counselwas trying to impress upon the Court was that since theprosecution had doubts in proving the first count, the alternatecount under Section 15 read with Section 14 of the PressCouncil Law had been added to the indictment. This submissionof learned Counsel is without merit for the reason that theprosecution had every right to indict the accused-appellantunder both counts. The question whether the prosecution wouldsucceed in establishing the 1st count or both counts in theindictment was a matter to be decided by Court and not by theprosecution. Hence the only permissible argument that couldhave been taken by the defence in this case would be a situationwhere it could be shown that there was no justification to haveboth these counts in the same indictment due to anyinconsistency. However in our view there appears to be noinconsistency in having both these counts against the accused-appellant in the same indictment. (Vide provisions relating tojoinder of charges in the Code of Criminal Procedure Act No. 15 •of 1979). There is therefore no justification in the contention .advanced by Counsel that due to the uncertainty that prevailed,
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in proving the first count i.e. the doubt in relation to the personwho published the defamatory article in question, that promptedthe prosecution to have the 2nd alternate count in the indictment.It would be appropriate to consider here the other point thatwas raised by learned Counsel for the accused-appellant that,since the second count was an alternate count, if the accused-appellant was convicted on the first count it was not possible toconvict him on the second count. In our view it was reallyunnecessary for the prosecution to have had the 2nd count inthe indictment as an alternate count, since the prosecution couldvery well have maintained both these two countscquiteindependently, as there is no inconsistency in having both thesecounts in the same indident. Further the accused-appellant hasto be automatically convicted on the 2nd count, once he isconvicted on the first count. This situation arises by virtue ofthe strict operation of law provided for in Sections 14 & 15 ofthe Press Council Law which state that “every person” whopublishes, or causes the publication of a defamatory statementin any newspaper, the editor of such newspaper shall be deemedto be guilty of that offence unless the editor proves that theoffence was committed “without his knowledge or ‘that heexercised all due diligence to prevent the commission of theoffence.” However in this case, the accused-appellant as editorfailed to establish the only defence that he pleaded in connectionwith the 2nd count, namely that the offence was committedwithout his knowledge. The accused-appellant will not beprejudiced in any way by being justly convicted on both thesecounts in view of the operation of law, as he had defended himselfin respect of both these counts.
It was submitted on behalf of the accused-appellant thatthe learned High Court Judge had failed to record a verdict andgive reasons forthwith or within 10 days of the conclusion ofthe trial and thereby violated the requirement laid down inSection 203 of the Code of Criminal Procedure Act, No. 15 of1979. In a case of this magnitude involving various question of
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law and the proceedings running up to 1393 pages, the allimportant question to be raised would be, whether it is humanlypossible for the trial Judge to strictly comply with the saidSection. Farther if that be the case, did the legislature intendthe operation of Section 203 of the Code of Criminal ProcedureAct, to be mandatoiy. In this regard it has been contended byCounsel that the failure of the trial Judge to record a verdictand give his reasons within 10 days would have a tendency tomake the trial Judge lose sight of the arguments and the evidencepresented in the case. On the other hand one must not fail tounderstand that the entire exercise of this process of decisionmaking is to mete out justice by coming to a reasonable decisionand such a decision necessarily involves the liberty of the subject.Therefore as referred to above in cases of this magnitude, whatmay become objectionable would be the failure of the trial Judgeto take such reasonable time necessary to decide the case.Besides one must be mindful of the fact that in addition to theproceedings being available to the trial Judge to refresh hismemory, he has his own notes made in terms of Section 278 ofthe Code of Criminal Procedure Act which could be perused byhim when writing his judgment. Hence there can be nojustification in the allegation that even a reasonable delay wouldmake the trial Judge forget or even overlook the evidence andthe arguments presented in a case. The all important questionto be considered here is whether the requirement in Section203 of the Code of Criminal Procedure Act which provides thatat the conclusion of the trial, the Judge shall “forthwith or withinten days of the conclusion of the trial record a verdict of acquittal
or conviction giving his reasons therefore” is mandatoiy
or directory. It is of interest to note that Srt Skandct Rajah J. tnthe case of Dayaratne Vs. Bowle(10) at 500 has interpreted theword “forthwith” to mean “within a reasonable time” or “as soonas practicable.” This question was carefully considered in thecase of Anura Shantha alias Priyantha and another Vs. .Attorney General111’ where it was held that the provisions ofSection 203 of the Code are directory and not mandatory. Thisis a procedural obligation that has been imposed upon the Court
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and its non-compliance would not affect the individual’s rightsunless such non-compliance occasions a failure of justice. Thusin the present case it is to be observed that the learned trialJudge has delivered his verdict giving his reasons on 01.07.1997after the proceedings were concluded on 04.06.1997. Thereforedespite the large volume of evidence to be considered by thelearned trial Judge, with commendable speed he has deliveredhis verdict giving reasons. Under these circumstances, thereseems to be no merit in this complaint of learned Counselregarding the delay on the part of the learned trial Judge torecord a verdict giving reasons.
<L
As a final note having regard to the nature of this case, aword of caution regarding the freedom of the press may not beout of place. Freedom of the press is part of the larger freedomof the individual. The public has a right of access to informationwhich is of public concern and of which the public ought toknow. The press is all about finding the truth and telling it tothe people. In pursuit of that, it is necessary that the pressshould have the broadest possible freedom of the press. In otherwords if at all there should be very limited control over thenewspapers. Otherwise wrong doing would not be disclosed.Charlatans would not be exposed. Unfairness would gounremedied. Misdeeds in the corridors of power – in governmentand private institutions will never be known. However with thatgreat gift of press freedom comes great responsibility. In otherwords more powerful the press is, it should also be a responsiblepress which will not abuse the enormous power it has. Whatthe press must do is to make us wiser, fuller, surer and sweeterthan we are. The press should not think they are free to invadethe privacy of individuals in the exercise of their constitutionalright to freedom of speech and expression, merely because theright to privacy is not declared a fundamental right of theindividual. However to appreciate the value of privacy in the lifeof an individual, it is well to remember the importance whichopr constitution attaches to the man’s autonomous nature,through the guarantees of basic human rights. And these human
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rights are aimed at securing the integrity of the individual andhis moral worth. Therefore to invade his privacy is to assail hisintegrity as a human being and thereby deny him his right toremain in society as a human being with human dignity Thelaw of defamation both civil and criminal is also geared to upholdthe human being’s right to human dignity by placing controlson the freedom of speech and expression. The press should notseek under the cover of exercising its freedom of speech andexpression make unwarranted incursions into the privatedomain of individuals and thereby destroy his right to privacy.Publty figures are no exception. Even a public figure is entitledto a reasonable measure of privacy. Therefore Her Excellencythe President even though she is a public figure is entitled to areasonable measure of privacy to be left alone when she is notengaged in the performance of any public functions. That is ano entry zone which the press must not trespass. The case inhand is one where the press has attemped to enter into that noentry zone. Even if Her Excellency the President attended aprivate party it should not be a matter of concern for the press.Here what the accused-appellant had done through hisnewspaper is to involve Her Excellency the" President with aparty, which she had nothing to do and never attended andhad published such material as referred to and discussed abovewhich has the capacity to defame Her Excellency the President,who is also a mother of two children. In this instance, it is reallyirresponsible conduct on the part of the press, misusing it’sfreedom of speech and expression to injure another’s reputationor indulge in what is called character assassination.
Therefore as observed above, we have given our most carefulconsideration to the submissions and the authorities cited atthe hearing by the learned Counsel for the accused-appellant,the learned Additional Solicitor General and the learned Counselfor the aggrieved party. We are of the considered view that the’'learned trial Judge has arrived at the right decision hi convicting
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the accused-appellant on both counts in the indictment. Hencewe proceed to dismiss the appeal and affirm the conviction andthe sentence. Further we deeply appreciate the assistance givento us by Counsel.
KULATILAKA, J. – I agree.
Appeal dismissed.