Court of Appeal orderThe criminal defamation case filed by the Attorney General on behalf of Ms. Chandrika Kumaratunga aginst the Editor, The Sunday Times continued on Wednesday after a hectice week of litigation.
On Tuesday, the Court of Appeal refuse to grant notice to say the proceedings at the High Court and on Wednesday, the Editor filed an appeal in the Suprime Court.
Senior Counsel for the Editor on Wednesday, made an application to the trail Judge (High Court) to postpone the case till July 19 when the Supreme Court will have decided on the appeal before it. The state objected to this and then trial judge held with the state.
Thus defence case began on Wednesday with evidence of the Editor. We published below the full text of the Court of Appeal order of July 2 and the petition to the Supreme Court of July 3.
The Accused-Petitioner was indicted before the High Court of Colombo on two charges. The first count was that he did by the publication in the Sunday Times Newspaper on 10th February 1995 of words that were intended to be read, namely, the following words that appeared under the heading, 'Anura: Sooting says courting days are here':-
"Therefore, let's start at the top, about a party graced by none other than Her Excellency the President Chandrika Kumaratunga. The occasion was the birthday of Liberal Party National List M.P. Asitha Perera (Well Mudliyar Chandrika - how?) The place was Mr. Perera's permanent suite at the 5 star Lanka Oberoi. But this time the President was more circumspect about her appearance and used the rear entrance of the hotel, watched by a phalanx of security guards and myself."
"She spent about 90 minutes at the party, from about 12.30 in the heat of the silent night until 2.00 a.m. and, as for what she ate, we assure you; it was not food from the Hilton. The reading public now has a fair idea of it's first citizen's epicurean taste. But what of her estranged brother?"
Publish such an imputation regarding Her Excellency the President of the Democratic Socialist Repubic of Sri Lanka with intent to harm her reputation or while knowing or having reason to believe that such imputation would harm her reputation and that he did thereby commit an offence punishable under Section 480 of the Penal Code.
The second count which was framed in the alternative to the first count was that an imputation about Her Excellency the President Chandrika Bandaranaike Kumaratunge was made by the Publication of the words referred to in count number one which were intended to be read, and published in the 'Sunday Times' newspaper of the 19th of February 1995, that the said imputation was published with intent to have the reputation harmed thereby and that the person who had published the said imputation has committed an offence punishable under Section 479 of the Penal Code read with Section 15 of the Sri Lanka Press Council Law No. 5 of 1973 and that the Petitioner who was the Editor of the said newspaper has therefore committed an offence punishable under Section 14 read with Section 15 of the said Press Council Law.
The indictment was served on the Accused-Petitioner on 13.6.95 and the trial commenced in the High Court Colombo on 8.3.95. The Accused-Petitioner pleading not guilty to the aforesaid charges. The prosecution then led the evidence of five witnesses on several dates of trial and the case for the prosecution was closed on 22.4.1996 leading in evidence documents marked P1 to P7.
At this stage of the trial learned President's Counsel for the Accused-Petitioner made an application to the trial Judge in terms of Section 200 (1) of the Code of Criminal Procedure Act to record a verdict of acquittal.
Section 200 (1) is as follows:
"When the case for the prosecution is closed, if the Judge wholly discredits the evidence on the part of the prosecution or is of opinion that such evidence fails to establish the commission of the offence charged against the accused in the indictment or of any other offence of which he might be convicted on such indictment, he shall record a verdict of acquittal; if however the Judge considers that there are grounds for proceeding with the trial he shall call upon the accused for his defence."
The application by the defence was made in terms of the second limb of Section 200 (1) on the basis that the evidence led by the prosecution failed to establish the commission of the offenses charged against the accused in the indictment.
It was contended by the learned President's Counsel that the offence of defamation under Section 479 of the Penal Code involved the following ingredients.
1. An imputation concerning a person which directly or indirectly, in the estimation of others lowers the moral or intellectual character of that person.
2. the making or publishing of such an imputation
3. that such imputation was made with the intention to harm or with the knowledge that it would harm the reputation of that person,
It was submitted firstly that the court should be satisfied that the imputation contained in the alleged offensive article contains an imputation of the type referred to in (1) above. Secondly that the court should be satisfied that such imputation was made or published by the accused and thirdly that the court must be satisfied that the said imputation was made or published by the accused with the necessary intention or knowledge.
Elaborate submissions on these aspects were made by learned President's Counsel before the High Court in his written submissions P3(b) and it was contended that the prosecution had failed to establish the charges under counts 1 and 2 in the indictment.
The learned Deputy Solicitor General in his reply P3 (A) dealt in detail with the submissions made on behalf of the Accused-Petitioner and contended that the ingredients of the two charges had prima facies been established and submitted the Accused Petitioner should be called upon for his defence.
After a consideration of the submission, oral and documentary, of Counsel including learned President's Counsel on behalf of the aggrieved party, the High Court Judge by his Order dated 23.5.96, P4 for the reasons set out therein came to the finding that there is a prima facie case against the accused and considered that there were grounds for proceeding with the trial and called upon the accused for his defence.
The Accused-Petitioner in this application for revision has sought to have the aforesaid Order of the High Court Judge set aside and has prayed that he be acquitted of both the charges.
At the hearing of his application Mr. Tilak Marapana P.C. appearing for the Accused Petitioner submitted that it is evident from the Order of the learned High Court Judge that he has pre-judged the case against the Accused-Petitioner and in the circumstances that the petitioner has been deprived of a fair trial and that further trial before the same High Court would be an exercise in futility. It was submitted that the trial Judge has already formed the opinion that the charges have been established beyond any manner of doubt when he in his Order at page 13 observed as follows: "To sum up what is stated above would serve to show that the prosecution evidence is such as to establish convincingly and to a moral certainty all the ingredients of the offence of defamation which in the context of this case may be broadly stated as follows:
(a) making or publishing an imputation concerning Her Excellency the President.
(b) by words intended to be read
(c) that the publication was made with the intention of damaging or the requisite knowledge whoever may be responsible for the publication. It was strenuously argued by learned President's Counsel that the learned trial Judge having formed his opinion can in no way retract from his view even if the accused petitioner were to give a plausible explanation by way of defence.
It is to be observed that it was the learned Counsel for the Accused-Petitioner who made detailed submissions orally and in writing and invited the learned Trial Judge to consider the evidence led and to form an opinion that it failed to establish the commission of the offences charged against the accused. In order to form such an opinion the learned trial Judge in our view had necessarily to consider the evidence led in relation to the ingredients of the offenses with which accused petitioner had been charged. The trial Judge had considered the evidence in relation to the ingredients of the offenses with which the Accused-Petitioner was charged and it was incumbent on him to form an opinion in terms of Section 200(1) as to whether the evidence led fails to establish the commission of the offence chraged against the accused in the indictment or of any other offence of which he might be convicted on such indictment.
In the instant case although the learned trial Judge appears to have expressed his opinion forcefully he was not obliged in terms of Section 200(1) to have set out the reasons for forming his opinion. In this case as oral and written submissions were tendered by Counsel for the respective parties in regard to the application to have a verdict of acquittal entered in terms of Section 200(1) the trial Judge has considered the same and has taken the view that there are grounds for proceeding with the trial and has called upon the accused petitioner for his defence.
To a question posed by court it was conceded by the learned counsel for the Accused-Petitioner that without making an order running into 17 pages that had the trial called for a defence by stating, "I am of the view that there are grounds for proceeding with the trial and I call upon the accused for his defence", the accused petitioner would have had no cause to complain. In our view a trial judge is not obliged to make an elaborate order setting out his reasons for holding that there are grounds to proceed with the trial when a submission of no case to answer is made on behalf of an accused in terms of section 200(1) of the Code of Criminal Procedure Act. See Sohoni, Code of Criminal Procedure 19th Edition Vol 3 page 2747.
Learned Deputy Solicitor General and the learned President's Counsel for the aggrieved party contended that one cannot take the observation made by the learned trial Judge at page 13 of his Order out of context and submit that the learned trial Judge has pre-judged the case. It is to be noted that in page 1 - 12 of his Order the learned Trial Judge has dealt with the submissions made on behalf of the Accused-Petitioner and has come to a finding that there is a prima facie evidence which warranted the continuance of the trial.
Besides, the Order sought to be impugned in this application in revision is not a final Order and as observed by a Bench of 5 Judges in the case of the Attorney General Vs. Heeraluge Niel Gunawardena S.C. Application 503/76 H.C., Kandy 67/74 decided on 6.8.76 (reasons delivered on 14.9.76): "The revisionary power of the appellate Court in regard to the proceedings in the High Court will not be exercised except in very exceptional circumstances in particular this court will not entertain an application "which will have the effect of interrupting the proceedings of the trial in the High Court".
The decision as to whether an accused should be called upon for a defence at the end of the prosecution case in our view is entirely a matter in the discretion of the trial Judge. We would be usurping his functions if we were to consider evidence placed before him and make a determination as to whether there are grounds for proceeding with the trial.
We are of the view that there are no exceptional circumstances which merit the intervention of this Court at this stage. For the reasons stated we are of the view that the petitioner has not made out a case for the issue of notice and accordingly the application is refused.
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