Appeal court ruling in ST case-II

Continued from last week

Now we give our mind to the complaint made by learned President's Counsel that the learned trial judge has attempted to paraphrase the article in a defamatory sense omitting the word "party" and thereby has reached a wrong conclusion regarding the article. He contended that the writer of the article did not say anything in the manner the trial judge has attempted to paraphrase the article in question. Paraphrased version according to Counsel was an edited or distorted version. It would appear from the examination of the judgement, what the trial judge has done was to pinpoint to the main contents in the article under the caption "Anura Sootin says courting days are here" and to consider the sense in which the excerpt concerning Her Excellency the President had been used to wit, "Her Excellency spent 90 minutes in Mr. Asitha Perera's permanent suite in the heat of the silent night and indulged in Epicurean tastes". This is what the writer wanted to convey to the reader. Even if the word "party" was included when paraphrasing, in our mind it would not have made any difference, since no other guests were mentioned in the article. Therefore the use of the word "party" by the writer seems to our mind an attempt to disguise the defamatory meaning in the article. Learned Additional Solicitor General suggested at the hearing that the use of the word "party" was a "shame" on the part of the writer, since it carried no meaning to the reader's mind. Hence in our view the learned trial Judge has attempted to paraphrase the article for the purpose of clarity and clear understanding of the contents in the article. No prejudice has been done to the accused appellant. We cannot agree with the allegation that the trial Judge has attempted to over exaggerate the meanings of some of the phrases in the article and to give them a sinister meaning. As stated above the article is clearly defamatory of Her Excellency the President.

It was submitted by learned Counsel that the learned trial Judge had prejudged the case by holding that the article in question was defamatory in his preliminary order dated 23.05.1996. At the close of the prosecution case the defence made an application to Court in terms of Section 200 (1) of the Code of Criminal Procedure Act, moving for an acquittal of the accused-appellant on the basis that the charges had not been established by the prosecution. In this situation the Court had to make a determination with regard to the adequacy of evidence to call for a defence. At the stage of the close of the prosecution case, the Court had to be satisfied that the publication in question was defamatory within the meaning of Section 479 of the Penal Code, so as to call for a defence from the accused-appellant in relation to the two counts in the indictment. Therefore at that stage the prosecution should have established or proved the ingredients which constitute the offence of defamation under the Penal Code, so that there was a prima facie case before the Court to warrant calling for a defence. This had to be so at the stage of the close of the prosecution case, even without the defence making the submission of no case to answer. In this case however defence at the close of the prosecution case took up the position that there was no case to answer. Therefore the Court had to be satisfied that there was a prima facie case, so that the submission of no case to answer could be rejected. A prima facie case necessarily means a case beyond reasonable doubt - at first sight i.e. on the evidence available on record as at the close of the prosecution case. In order to establish a prima facie case in an action for defamation there must be proof that the words complained of were in fact published. The words were defamatory of the President and the words were published by the accused-apellant with the intention or knowledge to defame the President or the circumstances in which the accused-appellant was responsible for the publication. S.N. Saha in his book Law of Evidence 1991 Edition Page 495 (cited by learned High Court Judge) the term "prima facie case" has been explained as follows. "The prosecution must discharge the initial or general burden of establishing a prima facie case of guilt of accused beyond a reasonable doubt. Then and then only the question of burden of proof on accused relating to general exception to criminal liability ari-ses."Therefore when the defence submitted that at the end of the prosecution case that there was no case to answer, the Court necessarily had to decide whether the ingredients of the offence of defamation had been established under the Penal Code. In doing so Court had to consider whether the article in question was defamatory, so as to decide the question whether there was a prima facie case established by the prosecution. This was not a case of prejudging of any issue but judging as required by law or in confermity with the law. However if the defence did not submit that there was no case to answer, then, the trial Judge would have merely called for a defence without making an order with regard to the sufficiency of the evidence to call for a defence. Hence after having created a situation where the Court had to make the said order dated 23.05.1996, there is no justification in making the complaint that the Court had prejudged the case by deciding that the article in question was defamatory. It is to be remembered that whether there was no contest regard to the sufficiency of evidence to call for a defence or not, the trial Judge had to consider the question whether there was a prima facie case or not. The only difference being that in the situation where the defence did not contest the sufficiency of evidence to call for a defence, the Court could have merely called for a defence from the accused-appellant without taking the trouble to evaluate the evidence by making an order such as the order dated 23.05.1996. In the circumstances there is no merit in the submission of the learned Counsel that the trial Judge has prejudged the case, by holding that the article in question was defamatory.

Learned Counsel for the accused-appellant made the submission that there was a difference in the treatment of the article in question to be defamatory in the initial order made by the High Court Judge on 23.05.1996 when called for a defence from the accused- appellant and in his final judgment when he decided to convict the accused-appellant. Counsel contended that when the article was considered to be defamatory at the stage after the prosecution case was concluded and thereafter when the article was considered to be defamatory at the end of the defence case, to convict the accused-appellant, additional material or grounds were considered for the purpose of deciding the article in question to be defamatory. With regard to this submission it is to be noted that when the Court initially decided the article to be defamatory, it did so after considering the evidence led by the prosecution in order to see whether there was a prima facie case. However when Court decided the article in question finally to be defamatory, it did so after considering the evidence presented by the defence and the submissions of Counsel as well, or in other words after considering the evidence in its totality. Further when the Court considered the article initially to be defamatory, it did so in order to see whether there was a prima facie case, in terms of Section 200 of the Code of Criminal Procedure Act whereas, when the Court considered the article in question to be defamatory finally, it did so for the purpose of convicting the accused-appellant in terms of Section 203 of the said Act. Therefore the object or the purpose of evaluating evidence available in the two situations were different. Thus if the Court had considered additional material to conclude that the article in question to be defamatory, one cannot find fault with the trial Judge because he had to comply with the law. Besides when the trial Judge considered the article to be defamatory for the purpose of convicting the accused-appellant, he had additional material to be considered namely the defence evidence and the submissions of Counsel. The responsibility of the trial Judge was heavier in this situation, when he passed judgement in terms of Section 203 of the Code of Criminal Procedure Act. Hence we see no merit in this submission of learned Counsel and it has to fail.

It was submitted by learned Counsel for the accused-appellant that an essential ingredient in the 1st count of the indictment, namely, the requirement of proving beyond reasonable doubt that it was the accused-appellant who made or published the article in question (P3 (a) - P4 (a) ) has not been established by the prosecution. Counsel's contention was that the prosecution did not lead evidence to show that it was the accused-appellant who wrote the article in question

But the learned trial Judge has convicted the accused-appellant on the basis that he wrote the article in question basing his findings on the evidence of the accused-appellant. it was the Counsel's submission that even on the evidence of the accused-appellant there was no unqualified admission that he was the writer of the article, but the trial Judge has come to the conclusion that the accused -appellant was the writer of the article on the footing that he had failed to disclose the name of the writer, that he had written three paragraphs (stories) in the gossip column, that the gossip column had been written by one writer or one person, that there was some similarity in the words that appeared in this article and the words that appeared in a previous editorial, that the reluctance of Mr. Wije-wardana the proprietor of the press to disclose the name of the writer and finally in view of the phrase in the article (P3(a) - P4 (a) )......... " watched by myself"..........

At the end of the prosecution case, when the Judge called upon the accused-appellant for his defence Court was satisfied that the prosecution has established that the article in question published in the Sunday Times Newspaper of 19.02.1995, was defamatory of her Excellency the President. Further the article in question was published in circumstances in which the accused-appellant was responsible for the publication, since he was the editor of the said newspaper. On this matter there was the evidence of Ranjith Wijewardana the proprietor of the Sunday Times Newspaper that the accused-appellant has been the editor of this newspaper since 1990 and he was responsible for the news that were published in the said newspaper.

In relation to the 2nd count in the indictment under the Press Council Law, the editor of a newspaper is deemed guilty of the offence of defamation unless there is proof that the offence was committed without the knowledge of the editor or that he exercised all due diligence to prevent the commission of the offence and in this case the offence of defamation.

To be continued next week.

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