LEGAL

Appeal court ruling in ST case - III

Continued from last week

The prosecution has established in this case that the accused-appellant was the editor of the Sunday Times Newspaper at the time when the article in question was published in the newspaper. At the end of the case on the totality of the evidence the Court has convicted the accused-appellant on both counts. In respect of the 1st count the accused-appellant has been convicted since there was evidence to show that as editor he had seen the article in question before the publication. On the other hand there was material before the Court to conclude that the accused-appellant was the writer of the article as well. In respect of the 2nd count the accused-appellant was convicted since he failed to bring himself under the proviso to Section 14 of the Press Council Law by proving that the offence of defamation was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence. As stated above the effect of the accused-appellant's evidence was that he provided material for the court to draw the conclusion, that he had not only published the defamatory article in question but also to draw inferentially that he himself was the writer of the said article. Therefore it is seen that the learned trial Judge has considered the totality of the evidence in the case before he came to the conclusion that the accused-appellant was guilty of the 1st count.

However it must be stated here that for the purpose of convicting the accused-appellant on the first count it is not necessary to establish that he is the writer of the defamatory article in question. It is sufficient, if there is material to hold that he published the defamatory article, for the Section 479 of the Penal Code states whoe-ver.....makes or publishes any imputation...... However in this case the learned trial Judge has reasonably and justifiably come to the conclusion that the accused-appellant who being the editor not only published the defamatory article in question but he in fact was the writer of the said article as well and if he was the writer he could not have written it other than for the purpose of publishing it - he being the editor. In order to reach the conclusion that the accused-appellant was the writer of the article the trial Judge has used the following material. Firstly that the accused-appellant is the writer of the defamatory article in question because of his failure to disclose the name of the writer. Accused-appellant has refused to disclose the name of the writer on a very vague basis that, the disclosure of the writer's name goes to the root of press freedom. However there is no such privilege to refuse to disclose the name of the writer of a defamatory article. There is the privilege not to disclose the source of information but in the present case he was not asked to disclose the source of information but only asked to disclose the name of the writer of the article in question and there is no such privilege to refuse to discolse the name of the writer. In this instance it is to be remembered that the contents of the article in question being false even the privilege of refusing to disclose the source of information is not available to the accused-appellant. This is because accurate and clear reporting is the responsibility of the press. Therefore if the press has abused that responsibility, the press does not deserve such privilege. This point was highlighted by Lord Denning in the case of British Steel Corporation Vs. Granada Television Ltd. 1980 3 WLR 774 at 805 when he said " in order to be deserving of freedom, the press must show itself worthy of it". A free press must be a responsible press. The power of the press is great. It must not abuse its power. If a newspaper should act irresponsibly, then it forfeits its claim to protect its source of information." Therefore in this case it would appear that the accused-appellant did not have the privilege even to refuse to disclose the source of information for the reason that the contents of the article were false. Otherwise no man would be safe from an irresponsible press as evident from the facts of this case. Further he could have given the name of the writer, if he was not the writer, an act which would have been done by any sensible person. If he did so, it would have to some extent reduced his liability on the 1st count and even on the 2nd count, since it was easier to show that the publication was without his knowledge as stated in the proviso, if he was not the writer. Further in this instance it would appear that Section 114 (G) of the Evidence Ordinance would apply for the reason that if he answered this question it would have been unfavourable to him. Therefore since the accused-appellant did not disclose the name of the writer the learned trial Judge considered it as a circumstance which was very suggestive of the accused- appellant being the writer of the article in question.

Another ground considered by the trial Judge to hold that the accused-appellant was the writer of the article in question is the fact that in his evidence he has admitted having written three paragraphs in the entire gossip column. This fact as the trial Judge commented has been admitted by the accused-appellant despite the fact that earlier, he had refused to disclose the name of the writer of the article as it goes to the root of press freedom. It is to be noted that the accused-appellant had volunteered to come out with this fact of having written three paragraphs in the gossip column after a lapse of about one year at the trial and had omitted to state this fact in his statement to the C.I.D. A contradiction was marked as P10, from the accused-appellant's statement to the C.I.D where he had stated that the " Column is written by one writer". It was marked as a contradiction, when the accused-appellant in his evidence took up the position that the gossip column was written by several writers. At the hearing of this appeal a submission was made by the learned Counsel for the accused-appellant that the contradiction marked P10, was used by the trial Judge as substantive evidence to hold that the column was written by one writer. However there is no justification in this allegation since it would appear that the trial Judge has only used this contradiction (P10) to demolish the evidence of the accused-appellant in Court, that the gossip column was written by several writers. This contradiction P10, in fact seriously affected the testimonial trustworthiness of his evidence. Learned trial Judge has also observed that the accused-appellant in his evidence has taken up the position that the gossip column was written by several writers to overcome the position he had taken earlier in his statement to the C.I.D. that column was written by one writer. It would appear that accused-appellant's position that he had written three paragraphs only in this gossip column without bothering to read the contents of this article (gossip column) that appeared before and after the three paragraphs he wrote in the gossip column is unacceptable. This is not the conduct of a reasonable person, when applying the much hallowed test of probability and improbability. Further when one examines the first paragraph written by the accused-appellant as admitted by him in his evidence, which has been referred to by the trial Judge reads as follows:- " Now enough about parties. Let's get down to more serious things for instance this week's mixed-up between ministers for an official residence, caused by a third ministry" what is implied from this paragraph is that the writer had knowledge of all the parties referred to in the gossip column. This is one indication that the gossip column is the work of one writer.

Learned trial Judge has also considered the 1st paragraph in the gossip column which reads as follows: " For the high and mighty in all of Sri Lanka, be they blue or green, purple or whatever colour of the political rainbow this appears to be party time and we feel if our readers want it; we shall deliver...... Therefore, let's start at the top, about a party graced by none other then Her Excellency the President. Chandrika Kumaratunga.... The trial Judge has come to the conclusion that the writer who wrote or composed the 1st paragraph of the gossip column referred to above knew of all the parties seven in number. Therefore the learned trial Judge has reasonably drawn the inference that the gossip column was the work of one writer. Further it would appear that the accused-appellant after he was confronted with all these situations, despite having said earlier that the gossip column was the work of several writers, he willingly or unwillingly had admitted that the gossip column was the work of one person or one writer.

To use his own words he had said that "one writer puts together such news items and makes one composition." There is also the other factor noted by the trial Judge namely, on the face of the relevant gossip column itself the words "by our gossip columnist" are printed which is also an indication that the gossip column is the work of one writer or one person. If that be the case it would be difficult for one to accept the position taken up by the accused-appellant at the trial, that he wrote only three paragraphs out of the entire gossip column which had over 35 paragraphs.

The trial Judge has also considered the sameness in the expression Viz. "in the heat of the silent night" in the article in question and the expression that contained in an editorial which appeared in the Sunday Times Newspaper of 16.10.1994 which read as follows:- "slipping out of the country in the heat of the night without telling a soul. " The said editorial was marked at the trial as P5 (a) and it would appear that this editorial had been written in relation to Her Excellency the President. Even though the learned President's Counsel at the hearing remarked that no one has the monopoly of the words, one cannot blame the trial Judge for considering this fact along with many other substantial grounds for reaching the conclusion he arrived at to the effect that the accused-appellant was the writer of the gossip column and more specifically the defamatory article in question i.e. P3 (a) - P4 (a). The sameness in the choice of words which is so prominent can be persuasive in certain circumstances to draw the conclusion that both expressions are the work of one writer. Besides in this case it is to be observed from the evidence of the accused-appellant that he had attempted to dissociate himself from writing the said editorial P5 (a) by saying that sometimes he has got the sub editor to write the editorial by sending his notes on which the editorial had to be based. However when the accused-appellant was specifically questioned whether the words " heat of the night" that appeared in the said editorial P5 (a) were his words, he had answered it by stating that he was unable to recall or recollect it. Later he has also stated that those words " in the heat of the night" can be my words but they are not my words". Therefore from his answers it would appear that he has not denied it altogether. One should also examine this matter in the background of the fact that the editorials are normally written by editors even though it may not be a conclusive factor. Besides at some point of time the accused-appellant has admitted the position that the editorial is written by him and at the same time he sought to retract his position by stating that the editorial is 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 justifiable reason or privilege. Therefore the only possible reason one could think of for his refusal to disclose the name of the writer of this editorial P5 (a) is that, he himself was the writer of this editorial and if that be the case the sameness of the two expressions " in the heat of the silent night" and " in the heat of the night" have some relevance and worth consideration as the trial Judge has done.

Another matter considered by the trial Judge to hold that accused-appellant was the writer of the defamatory article in question was the failure of Mr. Wijewardana, the proprietor or Chairman of the Sunday Times newspaper to mention the name the writer of the defamatory article in question. What he told Court when he was questioned on this matter was that he did not know as to who wrote this article in question. Further when he 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 to answer. For Mr. Wijewardana to say that he did not know the writer of this defamatory article in question, it is something unbelievable. It is more so for the reason that an inquiry was held on his directions with regard to this matter after the President had complained to him, and thereafter it is in evidence that the reporter who has furnished that information has been dismissed from service. Hence the position taken up by Mr. Wijewardana that he did not know the name of the writer has to be rejected. A conclusion that could be drawn from the backwardness on the part of Mr. Wijewardana to mention the name of the writer of the article in question is that the accused-appellant himself was the writer. On the other hand if someone else was the writer of the defamatory article, Mr. Wijewardana may well have disclosed the name of the writer for the reason that such disclosure may well have helped the accused-appellant to disown liability in this instance it would appear that it was also in the interest of Mr. Wijewardana to plead ignorance regard to the name of the writer, since there was some responsibility on his part as the proprietor of the press for this publication. In the law of defamation every person who takes part in the publication of defamatory matter is prima facie liable in respect of that publication. In the case of the publication of defamatory matter in a newspaper, the writer of the article, the proprietor, the editor and the printer of the newspaper can be held liable subject however to the defences that are available to them. Section 14 of the Press Council Law says that when any offence is committed through the means of a newspaper, the proprietor, publisher, printer, editor and journalist of such newspaper are deemed guilty of the offence unless they bring themselves under the proviso.

The last point on which the trial Judge has concluded that the accused-appellant was the writer of the defamatory article in question was the effort made by the accused-appellant to verify whether Her Excellency the President had in fact attended Mr. Asitha Perera's birthday party from Mr. Navin Gunaratne, without asking the writer himself. In the article it is stated that the writer himself was a witness to the President's entry to the Hotel 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 entrance of the Hotel, watched by phalanx of security guards, and myself." (Emphasis is by Court). Therefore the writer has given a clear impression to the reader that he himself was a witness to the President's entering the Hotel from the rear entrance in order to give more credence to the story. However it was the evidence of the accused-appellant that no sooner the President complained regard to the article, he contacted Mr. Navin Gunaratne to find out whether Her Excellency the President in fact attended the birthday party of Mr. Asitha Perera. it was his evidence that he did not ask the writer whether he was there, even though the accused-appellant had stated that he believed what the writer had stated in the article concerning the President. It seems irrational conduct on the part of the accused-appellant to ask Mr. Navin Gunaratne who he thought would have attended the birthday party of Asitha Perera to find out whether Her Excellency the President had attended the birthday party, without asking the writer himself unless otherwise the accused-appellant himself was the writer. This seems to be the reasoning of the learned trial Judge. Therefore it is on a consideration of all these items of circumstantial evidence referred to above, that the learned 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 Judge that the accused-appellant is the writer of the defamatory article on the material referred to above, is irresistible and logically compelling. Thus this fact has been established beyond reasonable doubt.

As stated before to convict the accused-appellant on the 1st count it is not necessary to establish the fact that he was the writer of the defamatory article even though that fact has been established in this case. It is sufficient that there is proof beyond reasonable doubt that the accused-appellant published or caused the publication of the said article and therefore he be held criminally liable or convicted on the 1st count. In other words there should be material to show that the accused-appellant who had complete control or right to remove the offending article [P3(a) - P4(a)] did not prevent it being published or failed to remove it and caused or sanctioned the publication. With regard to this matter learned High Court Judge had referred to two cases to show that a person can be held liable for mere publication or the failure to remove the defamatory article without proof of the fact that he is the writer of the defamatory article concerned. One such case was the case of Hird Vs. Wood referred to in the judgment of Slesser L. J.. in the case of Byrne Vs. Deane (1937) 1KB 818 at 835. In that case some unknown person had suspended a placard containing defamatory matter between two poles on the road way near a gate leading into certain grounds. There was no evidence as to who wrote the words on the placard or who put it up on the road way. But another person remained there for a long time, sitting on a stool and smoking a pipe, and continually pointed at the placard with his finger and thereby attracted to it the attention of all who passed by. The Court of Appeal consisting of Lord Esher M.R., Lopes and Davey L.JJ., held that the conduct of the person who was pointing at the placard constituted evidence of publication. In the case of Dyrne Vs. Deane, referred to above, where the facts were that some unknown person had put up on the wall of a club a placard containing defamatory material. It was held that since the defendants who had complete control of the walls of the club had not removed the placard or the paper after they had seen it - the publication had been made with their approval. In this case Greer L.J. observed that "the words were defamatory of the plaintiff, and that the two defendants by allowing the defamatory statement to remain on the wall of the club were taking part in the publication of it." (Vide page 818-819). Therefore it is well settled that the failure to remove the defamatory matter, provided the person concerned had control over it, constitutes publication.

In the present case the accused-appellant being the editor of The Sunday Times Newspaper, he had full control over the selection of the material to be published in the paper. On one occasion when the accused-appellant was questioned with regard to the publication of the dafamatory article, he admitted the position that he saw the said article just before publication. However later be retracted from this position by stating that he saw the relevant article after the publication of the provincial edition [P3(a) which was the earlier edition] but before the publication of the city edition [(P4(a)]. He further said that he could distinctly remember that a photocopy of the page containing the gossip column was sent to him and that he read it prior to the publication of the city edition of The Sunday Times. The city edition being the later edition, if the gossip column was sent to the accused-appelant for his approval prior to the publication of the city edition, then there is no reason as to why the gossip column was not sent for his approval prior to the publication of the provincial edition which was anterior in point of time to the city edition. However it was the accused-appellant's evidence at one stage, that he saw the article in question i.e., the gossip column just before the publication without making any qualification as to whether it was the city edition or the provincial edition. Further he had also admitted in cross examination that the answer he had given earlier namely that, he had read the defamatory article just before the publication is correct, that it had been correctly recorded and that it was his full answer to the question as to when he saw the said article. Thus the effect of this answer that he read the article in question just before publication means that it was published with his knowledge and authority.

It may be mentioned here that, even if one were to accept for the sake of argument, the position taken up by the accused-appellant namely, that he read the defamatory article in question before it was published in the city edition only, that fact would not absolve the accused-appellant from liability, since every fresh repetition of a defamatory matter is a publication and constitutes the offence of defamation. Thus in the law of defamation, tale-bearers are as bad as tale-makers. Therefore in this case there is clear evidence from the accused-appellant that he being the editor of the newspaper had the authority to refuse the publication of any article or permit the publication of any article in the newspaper. In this instance the accused-appellant had certainly sanctioned or authorized the publication of the said defamatory article in the city edition. He further said that he read the article in question and according to him there was nothing defamatory in the said article.

However if there was anything defamatory in it, he would have either altered it or removed the said article. In any event if he did not approve the said article for publication, it would not have been published. Thus it is very clear that since the accused-appellant had sanctioned the publication of the defamatory article in question, it had received publicity and the essence of the offence of defamation is publication.

Therefore the failure of the accused-appellant to remove the defamatory material referred to in the indictment, he has consented to the publication. It is this aspect of having control over the removal of the article in question and then without removing it, permitting it to be published in the newspaper, what matters in this case, for the liability of the accused-appellant, even if he was not the writer but some one else. In fact it was the evidence of the accused-appellant at the trial, that 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 not so, and therefore there was no need for him to remove it.

This conduct clearly amounts to publication of defamatory matter by the accused-appellant. Even though the case against the accused-appellant has been considered in a limited manner on the basis that he was only responsible for the publication of the city edition (P4(a)) which contained the defamatory matter, it must not be forgotten that trial Judge has drawn the conclusion on a rational basis that the accused-appellant had approved the publication of the defamatory article not only in the city edition but in the provincial edition as well. Besides learned trial Judge on very substantial grounds has come to the firm conclusion that the accused-appellant was in fact the writer of the defamatory article as well as the entire gossip column which appeared in the Sunday Times Newspapers of 19.02.1995. Therefore in the light of all these circumstances referred to above, we are unable to agree with the submission of learned President's Counsel that the ingredient of the offence of defamation namely that it was the accused-appellant who made or published the article in question (P3(a) - P4(a) ) has not been established beyond reasonable doubt. It was a decision that the learned trial Judge has made after evaluating the totality of the evidence adduced before him and in our view he has very correctly decided this matter.

To be continued next week