20th July 1997

Trial unfair, says Editor

In the Court of Appeal of the Democratic Socialist Republic of Sri Lanka

C.A. No. ...

High Court

Colombo No. 7397/95

In the matter of an Appeal made in terms of Section 331 of the Criminal Procedure Code of the Democratic Socialist Republic of Sri Lanka.

The Democratic Socialist Republic of Sri Lanka

Vs

Sinha Tissa Migara Ratnatunga, 14, Nimalka Gardens, Colombo 3.

ACCUSED

AND NOW

Sinha Tissa Migara Ratnatunga, 14, Nimalka Gardens, Colombo 3.

ACCUSED-APPELLANT

Vs

The Hon. Attorney General, The Attorney General’s Department, Colombo 12

RESPONDENT

On this..... day of July 1997.

To His Lordship the President and Their Lordships the Honourable Justices of the Court of Appeal of the Democratic Socialist Republic of Sri Lanka

The Petition of the Accused Appellant above named appearing by Vijitha Asoka Samararatne and Welisarage Sunil Fernando practicing in partnership under the name, style and firm of “SAMARARATNA ASSOCIATES” and their assistants Ms. Nimali Gunasekara, Miss. Shyamani Balasooriya and Miss. Sripali Ranasinghe his Registered Attorneys-at-Law states as follows:

1. The Accused Appellant was indicted before the High Court Colombo on two counts :

A) The first count was that he did by publication in The Sunday Times newspaper of l9th February, 1995 of words that were intending to read, namely, the following words that appeared under the heading “Anura: Sootin says courting days are here” :-

“Therefore, let’s start at the top, a party graced by none other than Her Excellency the President Chandrika Kumaratunga. The occasion was the birthday party of Liberal Party National List MP 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 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 its first citizen’s epicurean tastes. But what of her estranged brother?”,

published such imputation regarding Her Excellency the President of the Democratic Socialist Republic of Sri Lanka, Chandrika Banadaranaike Kumaratunga, with the intent to harm her reputation or while knowing or having reason to believe that such imputation would harm her reputation and that he had thereby committed an offence punishable under section 480 of the Penal Code.

B)The second count which was framed in the alternative to the first count was that the above imputation concerning Her Excellency the President Chandrika Banadaranaike Kumaratunga was published by some person in the Sunday Times Newspaper of l9th February, 1995, and that the person who published the said imputation had commited an offence punishable under section 479 of the Penal Code read with section 15 of the Sri Lanka Press Councils Law No. 5 of 1973 and that the Accused-Appellant being the editor of the said newspaper has therefore committed an offence punishable under section 14 read with section 15 of the Press Councils Law.

2.The Accused Appellant pleaded not guilty to both the charges and the case proceeded to trial. The prosecution led the evidence of five (5) witnesses namely, Ranjith Wijeywardena, Asitha Perera, MP., Simon Perera, D. Wimalaratne and S.I.K. Waidyasekara and closed its case.

3.Whilst, the prosecution adduced evidence that the aforesaid words which constitute the subject matter of the charge were published in the ‘Sunday Times’ newspaper of l9th February 1995, and that the accused was the editor of the said newspaper, no evidence was led to prove that it was he who wrote or published the said words and/or of any intention on my part and/or on the part of the person who wrote or published the said words to harm the reputation of Chandrika Bandaranaike Kumaratunga.

4. At the close of the case for the prosecution, Counsel for the accused made an application that he be acquitted in terms of section 200 of the Code of Criminal Procedure Act, on the ground that the evidence given by the said witnesses failed to establish any charges against me.

5. The said application was made on the following grounds:

(a) The said words used were not per se defamatory of Chandrika Bandaranaike Kumaratunga,

(b)The requisite mental element to establish a charge under section 478 read with section 480 had not been established, and that,

( c )Even if ‘a’ and ‘b’ above had been established, it has not been established that I either published or had any connection with the publication of these words.

6. The Defence Counsel and the Prosecuting Counsel having made both oral and written submissions the Learned Trial Judge by his order of the 23rd of May 1996 made order refusing the application of the defence and called upon the accused for his defence.

7. Being aggrieved by the aforesaid order of the Learned High Court Judge the accused by application number CA 381/96 made application to invoke the revisionary jurisdiction of Your Lordships Court to revise the said order on the following amongst other grounds.

(a) The Learned High Court Judge has by his aforesaid order made evident the fact that he has already found the accused guilty of the charges against him, and in the circumstances he has been deprived of the substance of a fair trial and the continuance of the trial before him (The Learned High Court Judge) would therefore be an exercise in futility.

(b) The finding of the Learned High Court Judge that the said words are per se defamatory of Chandrika Bandaranaike Kumaratunga is perverse in that the finding is not rationally possible upon the evidence adduced before him.

(c) The Learned High Court Judge erred in holding that the said words were per se defamatory on the basis of what, in fact, were that which the Learned High Court Judge perceived subjectively to be defamatory innuendos.

(d) The Learned High Court Judge erred in arriving at his finding on the basis that the words in question were defamatory because of purported defamatory innuendos conveyed thereby in that the question of the innuendos that were capable of being conveyed by the said words was irrelevant to the issue in this action and not a ground on the basis of which he was entitled to call upon the accused for a defence inasmuch as he was not charged by the indictment of having harmed the reputation of Chandrika Bandaranaike Kumaratunga by means of any defamatory innuendos conveyed by the said words.

(e) The Learned High Court Judge erred in the application of the standard of proof applicable to this case in that he failed to consider and/or give his mind to the question whether or not the words complained of were capable of a non defamatory meaning.

8. The said application No. C.A. 381/96 was supported before Your Lordships Court on the 27th of June 1996, and by order delivered on 2nd July 1996 Your Lordships refused the Application without issuing notice on the Respondent.

9. Being aggrieved with the said order of Your Lordships Court the accused filed an application bearing No. 336/96 in the Supreme Court for Special Leave to Appeal against the said order. The Supreme Court by their order dated 22.07.1996 refused the said Application and dismissed the Petition.

10. Consequent thereto the trial proceeded in the High Court of Colombo. The accused having testified on his own behalf called as his witnesses the following who testified at the trial:-

I. Dunstan Wickramaratne, a Photo-Journalist who had taken photographs of the “rear entrance” of Hotel Lanka Oberoi and produced same.

II. Rohan Edirisinghe, a Lecturer in Law of the Colombo University who testified on what he understood of the matters set out in the alleged defamatory article.

III. D.S.L. Witharana, a retired Superintendent of Police who had served in the Ministerial and Presidential Security Divisions (MSD and PSD) in regard to the practice of the use of “rear entrances” by VIP’s for security reasons.

IV. Edmond Ranasinghe, Senior Journalist and Editorial Director who testified on his understanding of the alleged defamatory article and in particular the meaning of words such as “Epicurean tastes” and “Heat of the silent night” contained in the said article and also the role played by an Editor of a Newspaper.

V. Desmond Fernando, President’s Counsel and President of the International Bar Association on his understanding of the words and phrases contained in the alleged defamatory article. (This witness’s evidence was not concluded)

VI. Rohan Fernando, a Chartered Accountant on the meanings attributed by him to the material contained in the alleged defamatory article.

11. The accused states that on 18.12.1996 the defence called

Reverend Gnanabiwansa the Chief Incumbent of the Visudaramaya Temple who was the Patron of the Sri Lanka Mahajana Pakshaya (SLMP) of which Mrs. Chandrika Bandaranaike Kumaratunga was the President at one time. After the said witness was affirmed, the Prosecuting Counsel objected to the reception of this witness’s testimony and the Learned Trial Judge questioned the Defence Counsel as to the expected content of his testimony. The accused stated that his Defence Counsel informed Court that this witness would be testifying on two aspects, firstly on his understanding of the alleged defamatory article and secondly the witness having been a close political associate of the Complainant, would be testifying on her habits and behavioural pattern. Having heard submissions of both the Defence and Prosecuting Counsel by his order dated 20.12.1996 the Learned High Court Judge concluded thus:

“For the aforesaid reasons I refuse the defence to call any more witnesses to testify in regard to the question whether the excerpt P3a - P4a alleged to be defamatory is, in fact, so (defamatory) or not”.

12. The accused states that both on a perusal of the reasons contained in the said order as well as the remarks made by the Learned High Court Judge at the time of the delivery of such order, it was made very clear to the Defence that the witnesses whom the Judge had referred to in his order of 20.12.1996 (as witnesses refused to the Defence to be called) were all witnesses, including Rev. Gnanabiwansa who were to be questioned as to what they understood by the alleged defamatory article and the meanings ascribed by them to the words and phrases contained in the article.

13. Being aggrieved by the said order of the Learned High Court Judge the accused sought to invoke the revisionary jurisdiction of Your Lordships Court to revise the said order on the following amongst other grounds:

a) The said order is manifestly erroneous, unjust and contrary to law, violative of the fundamental principles of Criminal Justice.

b) That the said order deprives the accused who is charged with an offence of his entitlement to be heard at a fair trial a Right guaranteed to me by Article 13(3) of the Constitutlon.

c ) The Learned High Court Judge has misconstrued the testimony of the witnesses who had testified (and who were to testify) on behalf of the Defence in that these witnesses were merely expressing their opinion on whether or not the Article was defamatory, when in fact the substance of their testimony pertained to the meanings attributed by them to the contents of the article, and how they understood the Article.

d) The Learned High Court Judge had erred in law when he ruled the testimony of witnesses who testified on the article (and who were to testify) as being irrelevant and inadmissible.

e) That the said order of the Learned High Court Judge precludes the accused from placing his defence before Court for consideration and that he was thereby deprived of a fair trial.

14. The accused states that the Learned High Court Judge permitted the Prosecution to lead evidence on the very matters he had subsequently by his order of 20.12.1996 held to be irrelevant and inadmissible. The Learned Trial Judge also permitted the Defence to call witnesses and lead such evidence and the Prosecuting Counsel to cross-examine such witnesses and elicit answers on such matters. The accused states that in addition to being deprived of an opportunity to place his Defence before the Court he was gravely prejudiced not knowing the outcome of such evidence and the case required to be met by him in the conduct of his defence in further proceedings to be held in this case. The accused further states that the Learned High Court Judge in his order of 20.12.1996 has not stated the manner in which this evidence would eventually be treated.

15. The accused further states that by the delivery of the said order which effectively deprived him of submitting his Defence for consideration by the Court, the Learned High Court Judge had demonstrated that he had predetermined his guilt and state that, taken in conjunction with the order delivered by the Learned High Court Judge on 23.05.1996 at the close of the Prosecution case and the incidental orders made by the Learned Judge from time to time in the course of the trial some of which has been outlined below, the accused verily believes that the Learned High Court Judge had displayed a bias in favour of the Prosecution in a way that precluded a fair and genuine consideration of the charges levelled against him.

16. The Court permitted the Prosecuting Counsel to make statements prejudicial to the accused over the publication of the news item published in the Sunday Times of which he is the Editor, pertaining to the transfer of stenographers from other Courts to the Court trying the Accused on the orders of the Secretary of the Judicial Services Commission and refused the Defence Application to summon the said Secretary of the Judicial Services Commission to establish the truth of the said Publication.

17. The Learned High Court Judge permitted the Prosecuting Counsel to cross-examine all the defence witnesses at an unusual length affording him an opportunity to question such witnesses on totally irrelevant matters much to their embarrassment overruling the repeated objections raised by the Defence Counsel. The sole object of such questioning was for the purpose of dissuading other witnesses from testifying on behalf of the Accused Appellant.

18. With the commencement of the Defence evidence the Learned High Court Judge expressed his desire to continue the trial on a day to day basis and despite being informed that the Accused Appellant’s Senior Counsel and many of the other Counsel appearing for the Accused Appellant had already undertaken work in other Courts and would therefore be unable to attend this Court uninterrupted on a day to day basis, the Learned High Court Judge made order to proceed with the trial on a daily basis commencing 08th November 1996. As a result the Accused Appellant was deprived of the services of his Senior Counsel and many of the other Counsel appearing for the Accused Appellant on several dates of trial thereafter constituting a denial of his right to legal representation.

19. The Accused states that the trial commenced on 08.03.1996 as at which date or soon thereafter there was a vacancy in the Court of Appeal which vacancy in the ordinary course of events could have been filled by the appointment of the Learned High Court Judge who is hearing this trial, he being the most senior of the High Court Judges and that the said vacancy remained unfilled until the conclusion of the case thereby creating a public perception that the question of the selection of the appointee would depend on the outcome of this case where he was Accused of Criminally Defaming Her Excellency the President who under the Constitution appoints Judges to the Court of Appeal.

20. The appearance of bias has failed to ensure that justice should manifestly and undoubtedly be seen to be done and therefore question the legitimacy of the decision making process.

21. By the order of the Learned High Court Judge made on 20.12.1996 the Accused Appellant was denied the opportunity of placing before Court relevant and admissible evidence so basic to his defence such as would amount to the total denial of a consideration of the Accused Appellant’s defence.

22. It is submitted that:

a) The order of the Learned High Court Judge made on 20.12.1996 had the effect of denying the Accused Appellant the opportunity of placing his defence for consideration, such denial necessarily vitiating further proceedings in the Trial.

b) The Learned High Court Judge having demonstrated that he had predetermined the guilt of the Accused the trial was devoid of a fair and genuine consideration of the charges levelled against the Accused Appellant.

23. Being aggrieved by the said order of 20.12.1996 the Accused Appellant filed an application to Your Lordships Court to revise the said order but subsequently, with Your Lordships permission withdrew same.

24. The case proceeded thereafter, with the accused closing his defence and after addresses of counsel the Learned High Court Judge on 4.06.97 reserved judgement for 4.07.97. Subsequently this date was advanced to 27.06.97 on which date the Learned High Court Judge refixed the case for delivery of judgement for 1.07.97 on which date the Learned High Court Judge made order convicting the Accused Appellant on both Counts which were framed in the alternative in the Indictment and imposed the following sentences:-

a) Count 1 - Fine of Rs 7500/= and in default of the payment of the said fine the sentence of 4 months’ simple imprisonment. In addition the accused was sentenced to twelve months’ simple imprisonment suspended for a period of seven years.

b) Count 2 - Fine of Rs 2500/= and in default of the payment of the said fine the sentence of 3 months’ simple imprisonment. In addition the accused was sentenced to six months’ simple imprisonment suspended for a period of seven years.

The said suspended sentences to run concurrently

25. Being aggrieved by the said order of 1.07.97 convicting the Accused Appellant on these charges and imposing the aforesaid sentence the Accused Appellant begs to appeal therefrom to Your Lordships Court on the following amongst other grounds which may be urged by Counsel at the hearing of the said appeal:-

a) the said order is contrary to law and is against the weight of the evidence in the case.

b) inasmuch as the prosecution was conducted on the basis that the accused ought to be found guilty on one of the charges which were framed in the alternative in the indictment, the Learned High Court Judge failed to take into consideration that the charges in the indictment were framed in the alternative and proceeded to convict the accused appellant on both counts.

c) The finding of the Learned High Court Judge that the alleged defamatory article is per se defamatory is contrary to law, not rationally possible on the evidence before him and is unreasonable.

d) Inasmuch as no innuendo had been pleaded in the Indictment, the Learned High

Court Judge was in error when he took into consideration meanings other than the ordinary meanings of the words and phrases contained in the alleged defamatory article to reach a conclusion that the article was of a defamatory nature.

e) The Learned High Court Judge by his order of 23.05.96 has demonstrated that he had predetermined the case against the Accused Appellant and thereby deprived the Accused Appellant the substance of a fair trial.

f) The Learned High Court Judge by his order dated 20.12.96 deprived the Accused Appellant the opportunity of adducing relevant evidence and thereby precluded the Accused Appellant from placing his defence before the court for consideration.

g) The Learned High Court Judge by his orders of 23.05.96 and 20.12.96 and the other incidental orders made in the course of the trial and the other matters set out in paragraphs 14 to 21 above has displayed a bias in favour of the prosecution in a manner that precluded a fair and genuine consideration the charges levelled against the Accused Appellant.

h) The charges framed in the alternative are not permissible by law and amount to an admission on the part of the prosecution that there exists a doubt in regard to the person who made or published the alleged defamatory article, the benefit of which doubt the Learned Trial Judge has failed to give to the accused.

I) That there was no evidence to support the contention that it was the accused who made or published the alleged defamatory article or that he did so with such intention or knowledge to constitute a charge of defamation as set out in Section 479 of the Penal Code.

J) That a prosecution on a charge under Section 14 of the Press Councils Law is possible only upon a conviction of some other person on a charge under Section 15 of that Law.

k) That the Learned Trial Judge proceeded to convict the accused on a consideration of the publication of the alleged defamatory article in the City Edition of the Sunday Times of 19.02.95 whereas the entirety of the prosecution case and the defence of the accused was based on the Provincial Edition of the said Newspaper which edition had left the newspaper office by the time the accused had read the alleged defamatory article.

L) Inasmuch as the accused had given evidence that he honestly believed the said article to be harmless and non defamatory and for that reason he would have no knowledge of the commission of an offence by the publication thereof in the newspaper of which he was the editor, the Learned Trial Judge has failed to give him the benefit set out in the Proviso to Section 14 of the Press Councils Law.

m) That the Learned High Court Judge by not recording his verdict forthwith or within 10 days of the conclusion of the trial and giving his reasons therefor has acted ln contravention of Section 203 of the Code of Criminal Procedure Act No. 15 of 1979.

WHEREFORE THE ACCUSED PRAYS TO YOUR LORDSHIPS COURT TO

a) Make order quashing the conviction and sentence imposed on him and acquitting the accused.

b) Grant such further and other reliefs as Your Lordships’ Court shall seem meet.

Attorney-at-law for the Accused

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