THE ATTORNEY-GENERAL v. GUNARATNE et al

137-NLR-NLR-V-43-THE-ATTORNEY-GENERAL-v.-GUNARATNE-et-al.pdf


The Attorney-General v. Gunaratne.
553
1942Present: Keuneman J.
THE ATTORNEY-GENERAL v. GUNARATNE et al.
760—M. C. Colombo, 41,625.
Defence (Miscellaneous) Regulations 20a (1)—Newspaper article—Publicationof rumour—Likely to cause alarm or despondency—Mens rea.
The accused was charged with publishing, in contravention ofRegulation 20a of the Defence (Miscellaneous) Regulations, an articlein a newspaper in the following terms :
“ The fatal blow that Raja Rata would receive. ”_
“ A rumour has spread out through the Anuradhapura District that our
Ceylon Government has fixed dynamite at the sluices of
tanks which contain water sufficient for the production of adequatefoodstuffs for the whole of the North-Central Province. There is a feelingamong the people that, in the event of there being any danger from theenemy, the dynamite would be caused to explode and that the waterwould be made to flow out. Then the water in all these tanks would,like a sea flowing over the land, carry the whole of Anuradhapura withthe people into the ocean. At a time when people have to face a dreadfulfamine like this, their being overtaken by a trouble like this would bea fatal blow to their cultivation work. ”
Held, that the article was likely to cause alarm and despondencywithin the meaning of the section.
The publication of a rumour, though it is expressly stated to be arumour, is penalised by the section.
Held, further, that mens rea was not an essential ingredient of theoffence.
A
PPEAL by the Attorney-General from an acquittal by the Magistrateof Colombo.
J. Mervyn Fonseka, K.C., Solicitor-General (with him R. R. Crossette-Thambiah, C.C.), for appellant.—The material words of the Regulationunder which the accused are charged are “ publish ”,“ report ”,
“ statement ”,“ likely ”,“ alarm ”,“ despondency Each of these
words should be given its ordinary dictionary meaning. To “ publish ”is to make known to the public, to spread abroad, to divulge ; a“ report ” is a rumour, common popular talk, that which is reported ; a“ statement ” is that which is stated, an expression of opinion or beliefin words, an assertion, an affirmation; “ likely ” is what is reasonably tobe expected, probable ; alarm ” is the emotion caused by anticipation ofdanger, fear, anxiety ; “ despondency ” is dejection of mind and spirits.Given these meanings, the document which is the subject of the chargeis clearly a report relating to matters connected with the war, which islikely to cause alarm or despondency.
(Keuneman J.—But the Magistrate has found otherwise.]
It is submitted that the finding of the Magistrate on this point is incorrect.It is for your Lordship to test the document complained of according toits tenor, having regard to the time of publication and to the districtsin which this newspaper circulates. The learned Magistrate furtherholds that the Regulation should be read as though the words “ knowingly ”or “ intentionally ” were inserted before the word “ publishing ”.
554
The Attorney-General v. Gunaratne.
The doctrine of mens rea exists in Ceylon only in so far as it is embodiedin section 69 and 72 of the Penal Code—Weerakoon v. RanhamyIt is necessary to look at the statute, its scope and object—A-G. v.Rodriguesz". Turning to the Defence (Miscellaneous) Regulations, seeRegulations 10, 13, 17b, 19b, 20 (1)(b). See also Betts vs. Armstead",
Warrington v. Windhill *, Buckingham v. Duck r'.
As regards the 2nd accused, the Magistrate has disbelieved his defence.
[Keuneman J.—Did he abet ? When you write a letter to a news-paper do you not cast your bread upon the waters ? It is left to theEditor to accept or reject the letter.]
I invite attention to the exhibit P 5 (a). It is clearly a request to committhe offence set out in this Regulation. The 2nd accused, having admittedauthorship of the letter, can escape liability only if he proves that he comeswithin both clauses (a) and (b) of the proviso to the Regulation.
[Keuneman J.—Was not his motive good ?]
Motive is immaterial. See R. v. Hicklin°. In that case a publicationentitled, “ The Confessional Unmasked ”, was written ostensibly with thebest of motives but the author was punished as the publication washeld to be obscene.
N.E. Weerasooria, K.C. (with him H. W. Jayawardana), for theaccused, respondent.—The view taken by the Magistrate is the correctview. This article is one primarily dealing with food production andthe scorched earth policy. One cannot say that it relates to mattersconnected with the war.
[Keuneman J.—Do not the use of the words “ danger from the enemy ”refer to the war ?]N—
One does not know what that means and there is nothing to showthat it refers to some alien enemy. The prosecution admits that this isnot a correct interpretation of the original Sinhalese script. It maymean some danger from a hostile source and yet not be connected withthe war. Moreover, there is nothing to show that this caused alarmor despondency. The words used are a mere exaggeration and thewriter has adopted a familiar mode of expression in Sinhalese, namely,the use of exaggerated metaphors and similes. The reference to a seaflowing over the land is a particular example. One cannot say that theordinary reader who is familiar with this form of expression would bealarmed or become despondent on reading this. The purport of the wholearticle has been to bring the matters referred to therein before theauthorities.
With regard to the second point, it is submitted that mens rea is^ anessential element of this offence. The element of mens rea is one thatenters into the ingredients of every offence. The presence or absence ofwords such as “ knowingly ” or “ intentionally ” may give an indicationas to whether mens rea is a necessary ingredient but its absence alone isno ground for drawing an inference that mens rea is not an essential
(7923) 23 N. L. R. 33 at p. 46 :4 (1918) 88 1.. .7. K. 13. 280.
Full Bench.1 (1918) 88 !.. ./.
(1916) 19 N. L. B. 63 at p. 68.6 (1868) L. It. 3 Q. C. D. 060.
2 L. R. 1888 z (20 Q. B: D. 111.)
KEUNEMAN J.—The Attorney General v. Gunaratne.
555
ingredient of the offence. The evidence of the first accused clearlybrings him within the purview of sections 69 and 72 of the Penal Code—Weerakoon v. Ranhamy Gunasekera v. Dias Bandaranaike a.
| Keuneman J.—Could one say that there has been a mistake of factin this case ?]
Yes, the accused says that he did not know that this article contra-vened the Regulation and his evidence has been accepted by the Magistrate.The rule regarding the absence of mens rea is applicable only to socialand Municipal legislation and not to legislation of this kind—CasieChetty v. Ahamadu"; Perumal v. Arumugam4. There is no doubtthat the accused was ignorant of the use to which this article had beenput—vide Evans v. Dell'".
I Keuneman J.—If the answer to the question is one involved indoubt should not one infer that mens rea is not an ingredient of thisoffenc^ ?]
If there is a doubt then the interpretation must be in favour of theaccused—Said Ahmad v. Emperor The legislature must be deemed tohave failed to express itself and the interpretation must be in favour ofthe subject and against the legislature—R. v. Chapman''; Nicholson v.Fields
Though the words “ knowingly ” and “ intentionally ”. are absent, theexistence of the proviso indicates that the presence of a mental element isan ingredient of the offence and when its absence is pleaded as a defenceit is incumbent upon the prosecution to prove the presence of mens rea.
October 23, 1942. Keuneman J.-—
This is an appeal by the Attorney-General against an acquittal. Thefirst accused was charged with publishing in contravention of Regulation20a of the Defence (Miscellaneous) Regulations an article entitled “ Thefatal blow that ‘ Raja-Rata ’ would receive ”, in the issue of the SinhaleseNewspaper, “ Sinhala Bauddhaya ”, dated March 7, 1942, which article,relating to matters connected with the war, was likely to cause, alarm ordespondency. The second accused was charged with abetment. Theoffences were punishable under Regulation 20 (a) (1) of the said Regulations.
The article in question, after dealing with the food question in theNorth-Central Province, contained the following paragraph, which formsthe basis of the prosecution:
“ A rumour has spread throughout the Anuradhapura Districtthat our Ceylon Government has fixed dynamite at the sluices ofNachchaduwa, Tissawewa, Nuwarawewa, Kalawewa and other tanks,which contain water sufficient for the production of adequate food-stuffs for the whole of the North-Central Province.. There is a feelingamong the people that, in the event of there being any danger from theenemy, the dynamite would be caused to explode and that the waterwould be made to flow out. Then, the water in all these tanks would,' t 1021) 23 X. L. R. 33.6 (1937) 1 A. E. R. 349.
Cur. adv. vult.
7 (1930) 39 X. h. R. 17
(1913) IS X. /.. R. 1S4.
(1939) 40 X. L. R. 532.
* (1927) 23 Cr. L. T. 554 at 55G.7 (1931) 2 K. B. 60S at 009.
“ 31 L. ./. Ex. 233.
556KEUNEMAN J.—The Attorney-General v. Gunaratne.
a j'jsever the land, carry the whoie Anuradhapura District
with the people, into the ocean. At a time when the people have toface a dreadful famihe like this, their'being overtaken by a trouble ofthis nature would be a fatal blow to their cultivation work, &c.”
I may add that as regards the phrase, “ in the event of there being anydanger from the enemy ”, may also be translated as “ in the event ofdanger from a harmful source ” or “ from a hostile source
It has been proved and admitted in the case that the letter in questionwas sent for publication to the newspaper by the second accused, whois a student Buddhist priest. The covering letter P 5 (a) by the secondaccused has been produced, which contains a request for publication.
It has also been proved and admitted that the first accused is thePrinter and Publisher of the paper, “ Sinhala Bauddhaya ”, The firstaccused is also the Secretary of the Mahabodhi Society and Managerof its printing press. In accordance with the practice of this Society, the■ letter in question was sent first to, and opened by, the first accused,registered in his register, and addressed to the Editor. The letter bearsan endorsement to the Editor in the handwriting of the first accused.The first accused, however, stated in evidence that he did not read thisletter and was unaware of its contents till long after publication in thenewspaper. He stated that he had no time to read all the letters received,and only read those letters signed by persons who were known to him.
As regards the first accused, the learned Magistrate held that theprosecution had failed to establish that he knowingly (or intentionally)published the article in question, arid, further, that the article was notlikely to cause alarm or despondency. As regards the latter point, theMagistrate mentions that with regard to the placing of dynamite at thesluices of the tanks mentioned in the letter, all that is said refers to arumour. But the particularity with which four at least of the tanksare mentioned, and I think the general tone of the letter, suggest to thereader that there is truth in the rumour. Further, I think it is nodefence to publish a rumour. The word “ report ” in Regulation 20 (A)may properly include a rumour. I think it has been a general experience,as expressed in another issue of this very newspaper, that “ rumours aremore dangerous than- bombs ”, and there can be no question but thatpublication of a rumour in a newspaper will give it a currency which itwould not otherwise have. I am of. opinion that the Regulation, penalisesthe publication of a rumour, even, though it is expressly stated to bea rumour.
The pith of the article lies in the publication of the rumour that certainspecified tanks and other tanks have had their sluices dynamited. Twodistinct dangers are indicated. First, the danger of explosions, as aresult .of, or in anticipation of, action of an inimical nature: Next, thedanger from flooding. This danger has been described in picturesqueand exaggerated language, but though it is probable, as the Magistratesays, that the very exaggeration would rouse derision in the better-informed classes, it would tend to create the greater alarm among moreignorant persons.
KEUNEMAN J.—The Attorney-General v. Gunaratne.557
I think the time at which this letter was published must be takeninto account. It is a matter of general knowledge that it was a periodof tense expectancy and anticipation- of enemy attack. This andsimilar rumours called for emphatic denial by the authorities (see D 5).
I hold that the article in question was likely to cause alarm or de-spondency, more particularly among those who resided in the neighbour-hood of the tanks indicated, and also in the District of Anuradhapura.There is evidence that the “ Sinhala Bauddhaya ” has a circulation in thisDistrict. The spread of a state of alarm or despondency was a probable,and not merely a possible, result of the publication. I think the Magis-trate is wrong in thinking that language of this kind “ would ratherraise a smile than cause alarm ”. Nor can I regard the article as a generaldiscussion of the “ scorched earth policy ”. This is the publication offacts, said to be based on rumour, with regard to the placing of dynamiteat the sluices of certain tanks, and the dangers arising from the possibleexplosion of the dynamite, and the consequent flooding that wouldensue. There is a world of difference between this and the generaldiscussion of the “ scorched earth policy ”.
I shall now turn to the other matter on which the order of acquittalrests. I may say that even if knowledge was a necessary ingredient ofthe offence, it may be difficult to say on the facts proved in the casethat the publication was without the knowledge of the first accused.There can be no question but that the first accused was aware of theexistence of the letter, and had passed it on to the Editor in the ordinarycourse. Would the fact that the first accused did not make himselfacquainted with the contents of the letter be a defence to the charge ofpublication with knowledge? I do not propose to answer this question',for I do not think the Magistrate was entitled to read the word“ knowingly ” into the Regulation. The word does not occur in theRegulation itself, which runs as follows : —
“ 20a (1) Subject as hereinafter provided any person publishingany report or statement relating to matters connected with the warwhich is likely to cause alarm or despondency shall be liable ….to imprisonment …. or to a fine …. or to both
Provided that a person shall not be convicted of an offence againstthis Regulation if he proves—
that he had reasonable cause to believe that the report or stater
ment was true ; and
that the publication thereof was not malicious and ought fairly
to be excused.”
It is significant that in the case of previous Regulations various mentalstates are clearly indicated as essential to the constitution of the offencescreated. To give a few instances under Regulation 10, interference withtelegraphic communications is made an offence if done “ knowingly ”.So, under Regulation 13, knowledge is specifically made the basis of theoffence in relation to means of secret communication. In the case ofother offences, absence of permission by a competent authority is oneof the ingredients of . the offence. Under Regulation 17b a certain43/39
558
KEUNEMAN J.—The Attorney-General v. Gunaratne.
" intent ” is necessary and so in Regulation 19b and 20 (1) (b). In theRegulation with which we are concerned, viz., 20a, no mental stateis made an ingredient of the offence, but instead we find a proviso, whichexempts the accused person from conviction, if he proves two things,contained in provisos (a) and (b). I think it is not possible to resist theconclusion that the words “ knowingly ” or “ intentionally ” weredeliberately omitted, and the burden definitely placed on the accusedto prove the matters mentioned in the proviso in order to escape conviction.The burden on the Crown was to prove three things—
the.publishing by the accused of the report or statement;
that the report or statement related to matters connected with
the war ; and
that the report or statement was likely to cause alarm or
despondency.
See in this connection Betts v. Armstead (supra).
“ That word is not to be found in the section and it is clear from thewords of other sections of the Act that the word ‘ knowingly ’ wasintentionally omitted from section 6. It is provided by section 5 that,-,want of knowledge shall be a defence in the case of the offences specifiedin sections 3 and 4, and it is therefore obvious that' the Legislature,when it desired to make ignorance a good answer, has expressed thatintention in the clearest terms.”
The whole question of mens rea has been fully discussed in the DivisionalBench case of Weerakoon v. Ranhamy (supra) . In this case it was held bythe majority of the Court that the. doctrine of the English criminal law,known as the doctrine of mens rea, only exists in Ceylon in so far as it isembodied in the express terms of sections 69 and 72 of the Penal Code.
“ Our Code is intended to be an exhaustive Code …. Wecannot, therefore, import into this Chapter any principle of Englishlaw, except in so far as. it is expressed or implied in those words. In*other words, the formula can neither be extended nor limited byreference to the principles of the English law. It must be taken ascomplete in itself.” (per Bertram C.J. p. 44.)
In the case of Regulation 20a, there is evidence that the draftsmanhad in. mind a principle in the English law, which Bertram C.J. refers toas follows (p* 43) ;
“ When the definition or statement of the offence contains the word‘ knowingly ’, or some corresponding expression, it is for the prosecutionto establish the guilty knowledge. Where it does not, it is for the accusedto prove the absence of mens rea. As it is often put, the absence of the 'word * knowingly ’ merely shifts the onus.”
But it is clear that the draftsman of the Regulation has not put intohis draft the full implications of that principle. On thd contrary, thedraftsman has specifically mentioned only two matters which, if provedby the accused, would provide a ground of defence. I think the defencemust be restricted to those two matters.
KEUNEMAN J.—The Attorney-General v. Gunaratne.559
It has been further contended in this case that the accused can justifyhis action under the terms of section 72 of the Penal Code. There canbe no doubt the accused can avail himself of section 72, but does thesection apply ? Is the accused a person “ who, by reason of a mistakeof fact and not by reason of a mistake of law, believes himself to bejustified in doing it”. Has there been any mistake of fact made by thefirst accused ? I agree with the dictum of Bertram C.J., in Weerakoon u.Rqnharny (supra) that “ignorance is not the same as mistake. Mistake,to my mind, implies a positive and conscious conception which is, in fact,a misconception”. There is no evidence of any such misconception inthis case, nor is there evidence that, as a result of the misconception, theaccused “ believed himself to be justified in doing it ”.
On these grounds, I hold that the acquittal of the first accused waswrong. I set aside that order, find the first accused guilty and enter aconviction of the first accused for the offence with which he was charged.
As regards the second accused, the Magistrate held he had reasonablecause to believe that the report was true, and that the publication wasnot malicious, and ought fairly to be excused. The second accused, whois a student priest of the age of 17, stated in evidence that some manfrom Trincomalee came to the temple and asked him to copy out what hehad written down, and that the article in question was what he copiedat the man’s bidding, and sent to the “ Sinhala Bauddhaya ”.
The Magistrate described this evidence as “ childish ” and holds itto be untrue. The name of the visitor was not given by the secondaccused. But the Magistrate thought, more particularly owing to theyouth of the second accused, it Would not be straining the law in hisfavour to accept the view that when he heard the talk of his elders hehad reasonable cause to believe that what they said was true. TheMagistrate thought he was entitled " to use some common sense, andnot to base his decision strictly upon the actual evidence given beforehim ”. I am not myself aware of any justification for making “ commonsense ” a substitute for evidence. This is not a case where the Magistrate,was considering the question of reasonable doubt as to the commissionof the offence, but a case where the accused had to prove that he camewithin the proviso. Though the second accused mentions hearing of therumour, he nowhere says that the rumour was conveyed to him by anyof his “elders” or by any member of the priesthood having authorityover him. There is no evidence whatever to show that the secondaccused had any material upon which he could come to the reasonableconclusion that dynamite had been placed at the sluices of any tanks.In fact, the second accused in cross-examination stated : “ I don’t knowwhether it is true or not that dynamite had been fixed in tanks ”.
It is clear, therefore, that the second accused has failed to prove thathe had reasonable cause to believe that the report or statement was true.The defence of the second accused therefore fails,- for it was incumbentupon him to prove both the elements of defence in provisos (a) and' (b).
560
The King v. Marthelis.
I hold that the evidence establishes that the second accused wasguilty of the offence of abetment with which he was charged. I setaside the order for his acquittal and enter a conviction of the secondaccused for the offence with which he was charged.
There remains to be considered the question of sentence in the case ofeach of these accused. The second accused, the writer of the letter, isonly 17 years of age. I think it is clear that his action was not malicious,but was intended mainly as a help to the food-production scheme, and todraw the attention of the authorities to certain dangers. He ends hisletter as follows: —
“ Let us bring this matter to the notice of the noble English Govern-ment in order to save the people of Ceylon from this dreadful trouble.”There were, however, misstatements and considerable exaggeration inthe letter. As regards the first accused, the Magistrate has held thathe was not aware of the contents of the letter, which he undoubtedlypublished. This finding was not disputed.. I also think it is clear thathe was not actuated by malice, but there was at the least carelessness,either by him ox by those to whom he delegated his authority of passingletters.
In all the circumstances, I impose on the first accused a fine of Rs. 100,in default 3 weeks’ simple imprisonment, and on the second accused afine of Rs. 20, in default one week’s simple imprisonment.
Set aside.