The Legal Column2

7th July 1996

"The Court of Appeal has erred"

The Editor's appeal against the interim order of the High Court goes to Supreme Court

1. The Accused Petitioner (Hereinafter referred to as the Petitioner) was indicted before the High Court of Colombo on two counts:

The first count was that he did by publication in the Sunday Times newspaper of 10th February, 1996 of words that were intending to read, namely, the following words that appeared under the heading Anura: sooting says courting days are here:-

"Therefore, lets start at the top, a party graced by non other than Her Excellency the President, Chandrika Kumaranathunge. The occasion was the birthday party of Liberal Party National List MP Asitha Perera (Well Mudliya Chandrika how?). The place was Mr. Pereras 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 citizens 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 Bandaranayake Kumaranathunga, 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.

The Second count which was framed in the alternative to the first count was that the imputation about Her Excellency the President Chandrika Bandaranayake Kumaranathunga was made by the publication of the words referred to in count number one which were intended to read, and that published in the Sunday Times Newspaper of l9th February, 1995, and that such imputation was published with the intent to have the reputation be harmed thereby, that the person who 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 Councils 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 Press Councils Law.

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

3. While 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 Petitioner was the editor of the said newspaper, no evidence was led to prove that it was the Petitioner who wrote or published the said words and/or of any intention on the part of the Petitioner and/or on the part of the person who wrote or published the said words to harm the reputation of Chandrika Bandaranayake Kumaranathunga.

4. At the close of the case for the prosecution, the counsel for the Petitioner made an application that the Petitioner 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 the Petitioner.

5. The said application was made on the following grounds

(a) The said words used were not per se defamatory of Chandrika Bandaranayake Kumaranathunga,

(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 the Petitioner either published or had any connection with the publication of these words.

6. Counsel for the prosecution and the defence respectfully made both oral and written submissions in respect of the said application and the Learned High Court Judge reserved his order. A certified copy of the entire proceedings are marked P 2 as well as the certified copies of the written submissions filed by the prosecution and the defence are filed herewith respectively marked as P 3A and P 3B.

7. The Learned High Court Judge made his order on the 23rd May 1996 refusing the said application of counsel for the Petitioner and calling for a defence. The said order of the Learned High Court Judge made on the 23rd of May 1996 is annexed hereto marked as P 4.

8. Being aggrieved by the aforesaid order marked P 4 of the Learned High Court Judge the Petitioner by application number CC 381/96 invoked the revisionary jurisdiction of their Lordships of the Court of Appeal inter alia on the following grounds.

(a) The said order is wrong, contrary to law and against the weight of the evidence.

(b) The Learned High Court Judge has by his aforesaid order made evident the fact that he has already found the Petitioner guilty of the charges against him, and in the circumstances the Petitioner 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.

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

(d) 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 innuendoes while the said words were incapable of any defamatory connotation according to their grammatical constructions and/or of giving rights to any defamatory innuendo on any objective analysis and/or construction of the said words.

(e) 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 innuendoes conveyed thereby in that the question of the innuendoes 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 Petitioner for a defence in as much as the Petitioner was not charged by the indictment of having harmed the reputation of Chandrika Bandaranayake Kumaranathunga by means of any defamatory innuendoes conveyed by the said words.

(f) The Learned High Court Judge has by laying undue emphasis on the fact that the virtual complainant held the office of the President of the country erred in law by failing to assess the evidence on the basis of the fundamental principle of law that all persons are equal before the law and entitled to the equal protection of the law laid down in Article 12 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

(g) 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 nondefamatory meaning.

(h) The Learned High Court Judge erred in holding that the words in question were published with an intention to defame Chandrika Bandaranayake Kumaranathunga and that the said finding was totally unsupported by the evidence.

(i) The Learned High Court Judge erred in holding that the Petitioner made and/or was responsible for the publication of the said words in that the said finding was unsupported by the evidence.

9. It was submitted further to their Lordships of the Court of Appeal that the following exceptional grounds warrant and justify the invocation of the revisionary jurisdiction of their Lordships Court.

(a) The continuance of this trial would occasion a failure and/or a miscarriage of justice in as much as the Learned High Court Judge has already arrived at the findings against the Petitioner as to the major issues in the case.

(b) The Petitioner would be deprived of a fair trial if the trial of this action continues before the Learned High Court Judge.

(c) The order of the Learned High Court Judge is palpably wrong in fact and in law and is perverse.

(d) The evidence adduced by the prosecution does not establish a prima facie case, and the Petitioner is therefore entitled to an acquittal.

(e) In as much as the Petitioner is entitled to an acquittal and the Learned High Court Judge has already decided that the Petitioner is guilty of one or both the charges levelled against him, the Petitioner pleaded real danger of being incarcerated and deprived of his personal liberty at the conclusion of the trial at least until an application for bail is concluded although he is not liable to be so incarcerated and/or deprived of his personal liberty.

10. The said application No. C.A. 381/96 was supported before their Lordships of the Court of Appeal on the 27th of June 1996, and their Lordships consequent to the hearing of the submissions of all the parties concerned, reserved the order which was subsequently delivered on 2nd July, 1996 refusing the application stating that the Petitioner has not made out a case for the issue of notice. A copy of the said order of the Court of Appeal is annexed hereto marked as P 5.

11. The Petitioner being aggrieved with the said order of the Court of Appeal seeks special leave to appeal to Your lordships Court on the following amongst other grounds that may be urged by counsel at the hearing of this application.

(a) The Court of Appeal has erred when it has held that the decision as to whether an accused should be called upon for a defence at the end of the prosecution case is entirely a matter in the discretion of the trial judge.

(b) The Court of Appeal has failed to consider the essential complaint of the Petitioner that the Learned Trial Judge having demonstrated that he had predetermined the issues in the case, the Petitioner would be denied the substance of a fair trial if the trial were to continue before the same judge.

(c) Inasmuch as the complaint of the Petitioner was that the Learned Trial Judge having demonstrated that he had predetermined the issues in the case, the Petitioner would be denied the substance of a fair trial if the trial were to continue before the same judge, the Court of Appeal has erred when it concluded that there were no exceptional circumstances which merit the intervention of the Court at this stage.

(d) The Court of Appeal has failed to consider the complaint of the Petitioner that the Learned Trial Judge had erred in holding that the words complained of were per se defamatory and that the said words were published with the necessary intention or knowledge.

12. The Petitioner states that this is a matter fit for review by Your Lordships' Court and the question to be decided is of public or general importance.

13. The Petitioner states that this Appeal involves substantial questions of law, namely:

A. whether and in what circumstances the Court of Appeal should exercise its revisionary jurisdiction in respect of an order made by a trial judge on a plea of no case to answer, and

B. whether a pre-determination by the trial judge on the major issues in a case constitutes a ground for ordering a trial De Novo in a case,

14. The Petitioner states that he has not invoked the jurisdiction of Your Lordships' Court in respect of this matter previously.

WHEREFORE THE PETITIONER PRAYS THAT YOUR LORDSHIPS COURT BE PLEASED TO:

a) Grant the Petitioner special leave to appeal to Your Lordships' Court against the said order of the Court of Appeal in CA 381/96 dated 01.07.1996 and delivered on 02.07.1996.

b) Allow the petitioners appeal and set aside the order of the Court of Appeal in CA 381/ 96.

c) Grant interim relief by staying the proceedings before the High Court pending the final determination of this application.

d) Set aside the order of the Learned High Court Judge dated 23.05.1996.

e) Make order acquitting the Accused in High Court case Number H.C. Colombo 7397/95, or in the alternative direct that the trial be commenced De Novo before another judge of the High Court.

f) Grant such other and further relief that Your lordships Court may seem meet.

Attorneys at Law for the Petitioner