Chandrika Kumaratunga-the virtual complainant
Upali de Z. Gunawardena- the judge
When the accused states : If they were interested they could have asked me whether I wrote any other items in that column..... the accused seems to be saying that the investigators should have been more imaginative in conducting the probe as to who wrote what and that the accused was under no duty, in the fitness of things, to have displayed greater candour if, in fact, he wrote only 3 passages, and disclosed that fact to the CID at the first available opportunity. All this serves to make me think that the story, belated as it is; that he wrote only 3 passages of the gossip column had been invented to give an air of verisimilitude or the appearance of being true, to the story that the gossip column was written by several writers and thereby neutralise and divert strong suspicions that may legitimately be thrown on the accused and the adverse inferences arising there from as against him (the accused). Anyhow it is wishful thinking to have expected the sub- inspector, who had questioned the accused and re corded his statement, to have displayed such remarkable insight as to have identified the 3 passages, on his own, that the accused now claims that he wrote, and to have questioned the accused whether he wrote them. In any event, on the accuseds own showing the accused would not in all probability have answered the question truthfully even if the sub-inspector had shown or the exercised the genius of a Sherlock Holmes for the accused in his evidence, had said:
Q : Mr. Ratnatunga, if the CID, asked you whether you wrote these three paragraphs would you have told them that you wrote these three paragraphs ?
A : I cannot say that now. I cannot say whether I would have given my name or not.
It is also to be observed that the omission to state, that he wrote just 3 passages out of 37 or 38 passages in the whole gossip column, if that fact was, indeed, the truth constitutes a contradiction by omission. In order to see whether that is a contradiction by omission it is necessary to see whether the statement which the accused (witness) has made in the witness-box should have been made by him while making the statement to the CID - just 3 days or so after the relevant publication - that being the first available opportunity. It is true that every omission does not amount to a contradiction unless that omission materially touches a pivotal point. Say, in a murder case the name of the accused is not stated at all by a witness in a complaint to the police and it is stated for the first time at the trial in court. It is a real contradiction though an omission. Omission, in order to be a contradiction, should not be of an inconsequential nature. In an Orissa case referred to at page 701 (Law of Evidence by A.N. Saha 1st publication) the accused was indicted for having committed rape on a lady having entered her bedroom. The lady said in evidence that the accused touched her and she woke up. Then, she said in evidence, that she asked him why he entered the room when the parents were away and that she would raise an alarm. Whereupon the lady said in evidence, that the accused immediately put a towel into her mouth and gagged her stripped of her sari and raped her. There was no mention in her statement of h er being gagged. This was an important omission for it was the gagging that prevented her from raising an alarm and the omission to state that fact (gagging) being vital was treated as a contradiction by omission. Similarly, the accused-editor when making the statement to the CID ought to have stated that he wrote only 3 passages if that was, in fact true. He simply could not have said so to the CID or was, in fact, precluded from doing so because his statement to the CID was that (to use the accuseds own words) : The column is written by one writer. Had he stated that he wrote only 3 passages - that position couldnt have been reconciled with the basic position that the accused had so clearly enunciated in his statement to the CID,. viz., that :the column is written by one writer. If by the term column he (the accused) meant an item or one item in the whole gossip column (as he had later stated in his evidence at the trial) it was clearly superfluous to have stated to the CID that the column, that is, one item or an item in the whole column was written by one writer for it would have been hardly necessary to labour what would have been patently obvious - for it is difficult to conceive of one item being written by several writers.
The facts stated above are such as to persuade anyone that the accuseds evidence that the gossip column was written by several writers is false. Although it has not been so argued in this court, there is the prospect of the accused seeking to explain away the inconsistency or the contradiction between his statement to the CID, viz., The column is written by one writer - and his evidence in court whereby he (the accused) sought to show that the gossip column was written by several writers - by seeking to equate the reporters to writers or vice versa. The accuseds evidence and that of Mr. Ranjith Wijewardena (Chairman of Times) make it clear that the reporters are not writers and they ,the reporters had not been treated as such and do not fall into the category of writers. I am explaining this in as much as there is the prospect of an argument being put forward that the term writers meant the reporters. In this regard, it will be recalled that Mr. Ranjith Wijewardena said that the reporter who supplied the information relevant to the indictment had been sacked but not the writer although he (Mr. Wijewardena) pleaded ignorance as regards the identity of the writer. Facts stated it pages 46-55 of this judgment will also serve to illustrate that the reporters were not writers and were not described nor referred to as such.
In addition, I may advert and reproduce below the evidence of the accused himself given on 13.08.1996 and 27.08.1996 to show the cleavage or the clear division between the reports and the writers and that the reporter was in a class apart from the writer. To quote:
Q : Gossip column reports are sent in by various reporters?
A Yes . Various reporters provide.
Then on 27.08.1996 referring to the article relevant to the indictment the accused had said: It was written by the writer based on the information given by the reporter.
Then on the same date (27.08.1996) the accused, in his evidence, had stated thus: The writer was .not there, the news item, was provided by a reporter.............. I do not think it is defamatory at all.
On the same date:
Q: You are certain to the writer, this information has been given by the reporter?
The accused on the same date had said:
I questioned the reporter who gave the information to the writer.
The true position with regard to this matter i.e. as to the number of writers whether it was one or several writers who wrote the gossip column is as stated by the accused himself in his statement to the CID which was as follows: The column is written by one writer. The accused, in the course of his evidence, in the last resort, admitted having made the above statement to the CID viz. that the column was written by one writer.-thereby making his statement ( the above statement to the CID) evidence of facts stated or . substantive evidence. However, it is to be noted, as pointed out above, that the accused to start with, (in the course of his evidence) denied making any such statement to the CID. The accuseds statement to the CID was as follows:- ...................It is a collection of news item that the newspaper would collect over the week and it is put together. And the accused also had told the CID: The column is written by one writer but as I stated earlier news items in the column are co llected from different sources . The accused had, in the course of his evidence, admitted having made to the CID, the above statement as well although it will be recalled that he gave numerous explanations with a view to detracting from the value and significance of that statement to the CID. What is the motive for the accused to misrepresent in court the true position which he had stated to the CID. It is clearly a realisation of guilt and a fear of the truth. To borrow phraseology from the judgment of Lo rd Lane CJ, in the case of Reg. Vs Lucas (1981) CA. page 720 - the accused knew that if he told the truth he would be sealing his fate. False evidence may be indicative of a sense of guilt as stated in Cross on Evidence. Almost a necessary corollary of the rejection the version (given in evidence) that several writers that wrote the gossip column is that the true version must held to be - that one writer, whoever he may be, wrote the entire gossip column. Similarly, a necessary corollary of the rejection of the version ( in the circumstances of this case) that the accused wrote only just 3 passages of the entire gossip column is that he (the accused) must be held to have written the whole gossip column, (of which, the excerpt relating to Her Excellency the President which is relevant to the indictment was only a part) and several other circumstances will be adverted to below to show that it is so.
To move on to the 3rd item of evidence or circumstance further confirming the earlier indications that the accused himself was the writer of the excerpt relevant to the indictment - it is overwhelmingly significant to note that an expression having almost the absolute sameness as the expression viz. in the heat of the silent night - had appeared in the editorial of the issue of Sunday Times of 16.10.1994 which expression was as follows: Slipping out of the country IN THE HEAT OF THE NIGHT without telling a soul.
The expression viz: in the heat of the silent night - that occurred in the relevant gossip column (on which the accused is indicted) having almost the absolute sameness as the expression in the heat of the night which had been used in the editorial marked P5 (a) had also been used in relation to Her Excellency the President who was (at the date of writing i.e. 16.10.1994 of that editorial) the Prime Minister.
Both expressions have a distinctive tone and mark which is the same and the sameness is so marked as to be persuasive enough to convince one that both expressions have been written by one having the same style of writing characteristic of or belonging exclusively to one writer. Just as much as a tree can be identified by the kind of fruit produced so can a writer be identified largely by his diction and choice of words. In an attempt to show that the words in the editorial of the Sunday Times of 16.10.19 94 viz, slipped out in the heat of the night...... . were not his words the accused-editor strove to dissociate himself as far as possible from the writing of the editorial of the Sunday Times (when, in fact, he is the editor) by declaring himself somewhat un-connected, as a rule, with editorial writing - object being to show that words in the editorial reproduced above were not his words. Accused-editors evidence touching this point makes interesting reading. To quote: There is a sub-editor who acts as Editorial Writer as well. I send him some notes on which he will base the editorial...........
To quote further from his (Accuseds) evidence relevant to this issue:
Q : In the editorial P5(a) there are the words -heat of the night ?
A : Yes.
Q : Are these your words?
A : I cannot recall.
So that the accused-editor had not in fact denied altogether that they were his words.
Further cross-examination, in that regard, continued as follows:-
Q : The editorial is prepared on the instructions given by you?
Q : These words have been approved by you?
A : Yes. Including the words heat of the night.
Q : Do you recall that they are your words?
A : No. I do not recollect.
Q: Whose words are they ?
A : The editorial writers.
They have to be necessarily the words of the writer of the editorial for words in the editorial cannot be those of anyone else who had not written it. It is somewhat of a quick - witted answer although it is lacking in candour as most of his answers are. The accused-editor, being cross-examined further, had said concerning the words heat-of night that appeared in the editorial P5, .thus :
Q : You say they would be the editorial writers They can also be your words?
A : They can be my words but they are not my words.
The tone of the above answers is un-mistakeable- that is, it is that of a witness who had been driven into a corner and the answers have been so given to hide ones true thoughts - particularly when the accused states : they can be my words but they are not my words and the nearest analogy or parallel to that answer is to be found in Buddhas own explanation when the Blessed One was asked : What is it that is reborn? He (the Blessed One) said : It is not the same person nor is it a different perso n.
The fact that there is a clear admission in the above answer that words in the heat of the night that appeared in the editorial of the Sunday Times of 16.10.1994 were his words, that is, the accuseds own words although he had chosen to deny it in the same breath calls for remark. To put it, at its lowest , it is more probable than not that the words that appeared in the editorial of 16.10.1994 i.e. in the heat of the night. - were those of the accused - he (the accused) being the editor and edito rs who do not, as a rule, write the editorial would be few and far between, if not somewhat of rarity.
In fact, on 23.09.1996(12.45 p.m.) the accused clearly admitted that the editorial was written by none but himself. To quote from his evidence :
Q : Mr. Ratnatunga - why did you tell court, if that is your position that you inevitably read only the political column and the editorial?
A . I inevitably read these because the editorial is written by myself and it basically contains news and comments and serious comments about politicians. Therefore I make it a point to read these two articles.
In other words, in the above answer not only had the accused-editor admitted that he as a rule wrote the editorial but also gave or adduced the fact viz. that he wrote the editorial as the reason for invariably reading it. It had been said so in one of his rare un-guarded moments. But suddenly he became conscious that the editorial of 16.10.1994 contained the expression : in the heat of the night - which expression too had been used in relation to Mrs. Chandrika Bandaranaika who was, as at that date , the Prime Minister. The very next question to the accused was as follows :-
Q : You said editorial is written by Yourself.
A : I said that it is written by myself or directly on my instructions.
Q : Did you not tell court that the editorial is written by yourself?
A : I also said that the editorial is written by myself or on my instructions.
Q: Did you not tell court that the editorial is written by yourself?-
A: I did not.
Comment is superfluous. What is there in black and white speaks for itself.
Then in his evidence on 28.10.1996 (11.40 a.m) the accused said :
Q : Your position is that you did not write the editorial of the issue of Sunday Times of 16.10.1994 ?
A : -I did not write.
(It is to be remembered that it is in the editorial of Sunday Times of 16.10.1994 that the expression i.e. in the heat of night appeared - an expression which was, so say, a precursor to the expression : In the heat of the silent night. which latter expression had been used in the relevant excerpt upon which the accused stands indicted.)
The accused was questioned on the same date at 12.10 p.m thus:-
Q : Are you prepared to disclose the name of the writer or of the person who wrote the editorial of 16th October 1994?
A : I would prefer not to disclose.
There was absolutely no reason for the accused not to have disclosed the writer of the editorial of 16.10.1994. Perhaps he was deterred from disclosing, because, he himself was the writer. For certain, the accused knew that if he admitted that he was the writer of the editorial of 16.10.1994 containing the words: In the heat of the night - it would have further fortified the impression that the accused had penned the article relevant to the indictment containing the identical words: In the heat of the silent night - as well - which latter expression relating to the President appeared in the gossip column about 4 months later - i.e. on 19.02.1995.
It is also to be remembered the accused has sought to justify his refusal to disclose the name of the writer of the excerpt relevant to the indictment by saying: I am taking cover under press freedom and I am abiding by the principles of press freedom. (10.10.1996 12.25 p.m.)
In Wentworth vs-Lloyd (1864) 10 HL cases 589 - the court stated:- .... the keeping back of evidence must be taken most strongly against the person who does so.
When I say this I wish to distinguish between the case of the suppression of evidence by a witness and the case where he declines to answer the question on the ground that he is not bound to do incriminate himself; in which case no presumption of guilt can fairly be drawn from his refusal to answer or the privilege would be at once destroyed.
I have shown above that there is absolutely no principle of press freedom or any other privilege known to law which protects the accused from the disclosure of the name of the writer, either of the editorial of 16.10.1994 which contained the expression: in the heat of the night or of the excerpt relevant to the indictment which contained the expression: In the heat of the silent night. This case, in which the accused editor of the Sunday Times is indicted, clearly falls into the former category, r eferred to in the excerpt of the judgment quoted above, inasmuch as the accused-editor of Sunday Times by refusing to disclose the names of the writer or writers is clearly suppressing evidence when, in fact, he is not at all entitled in law to do so. It is universally recognised that there is a real public interest in the administration of justice on the basis of uninhibited access to relevant evidence. This is not a case where the accused had elected NOT to give evidence. He has elected to give evidence but has refused to disclose the name of the writer.
On 28.10.1996 (12.10p.m) the accused has gone to the length, surprisingly though, of saying that editorials do not contain his words.
Q : The editorial contains your ideas?
A : Basically my ideas.
Q : The editorial does not contain your words?
A : Not my words.
It is rather a difficult situation to visualise - a situation in which the editors words are not found in the editorial - for it cannot realistically be thought to be so. The accused has given this evidence to the effect that the editorial does not contain his words on 28.10.1996. But it is to be recalled that, a little over a month before that, i.e. on 23.09.1996 (12.45 p.m) as pointed out above (at page 123 here of) the accused has given the fact that he writes the editorial as the reason for invaria bly reading the editorial - as a matter of routine.
But it is also to be observed that on 03.07.96 in answer to his own counsel in examination-in-chief (i.e. before the striking resemblance between the two expressions in the editorial and the relevant gossip column was brought to the fore and highlighted at the stage of cross-examination) the accused had said thus:
Q: When it comes to the writing of the editorial - would you consider that to be one of the main functions of the editor?
A : Yes. The writing of the editorial is one of the main functions of the editor.
Having said so, it beats my understanding as to how the accused can now say that the editorial does not contain his words for it is as incredible as incredible can be. Perhaps, no one could have displayed a greater cynical disregard for the truth than the accused, in fact, had done.
Continuing his evidence the accused had further stated
Q : What you say is although the editorial embodies or contains your ideas, these ideas are expressed in the editorial in somebody elses words?
A: Yes, In someone elses words because I have given my ideas in point form.
This explanation, i.e. that the editorial does not contain the accuseds words is given to dissipate if not to exclude the inference arising from the striking resemblance of the expression, viz. in the heat of the night that appeared in the editorial of 16.10.1994 to the words, i.e. in heat of the silent night - that occurred in the excerpt relevant to the indictment - the inference being that both these phrases represent accuseds own expressions. The-accused is seeking to show that (although he is the editor) his ideas in the editorials are not couched in his own words. And because in the heat of the night (that appeared in the editorial) are not the accuseds own words (inasmuch as his words do not appear in the editorials) no inference (the accused seems to say) can be drawn that the expression i.e. in the heat of the silent night (that appeared in gossip column relevant to the indictment) is the accuseds own words although both these expressions have the same distinctive quality or timbre. The explanation that the editorial does not contain the editors words - although it contains his ideas - is something that strains ones credulity. This explanation brings to ones mind the memorable words of Lord Morris in Bratty Vs. Attorney-General of Northern Treland (1961) AC 386 - House of Lords which are as follows :-
Before an explanation of any conduct is worthy of consideration, such explanation must be warranted by the established facts ................but it is not every facile mouthing of some easy phrase of excuse that can amount to an explanation .
Against background of the facts marshalled above - the near absolute sameness of the two expressions viz. in the heat of the night and in the heat of the silent night is undoubtedly a suggestive fact which furnishes a valuable clue that the accused, perhaps is the writer of both these expressions - more so because, as pointed out above at page 123 of this judgment, the accused had emphatically and unreservedly admitted that he wrote the editorial although he had later re-tracted, (as explained above) what he had thus stated earlier.
To proceed to the next point, which will be the 4th, strengthening or re-inforcing the inference or the conclusion that the accused-editor himself was the writer of the relevant excerpt, on which the indictment is based, it will be recalled that when Mr. Ranjith Wijewardena was asked as to whether he knew who had written the article relevant to this case, Mr. Wijewardena (the proprietor of the newspaper or the chairman) preferred to plead ignorance. To quote from his evidence the tenor of which was fol lows :-
(The essence of the evidence reproduced above is that Mr. Wijewardena had stated that he did not know as to who wrote the article relevant to this case. Further, when questioned as to whether that article had been published without the knowledge of the accused, Mr. Wijewardena had stated that that was an un-answerable question or a difficult one to answer.)
One can take it almost for granted that Mr. Wijewardena knew who the writer of the objectionable excerpt was for the accused had stated in evidence that Mr. Wijewardena requested him (the accused) to hold an inquiry with regard to the matter when Her Excellency the President had complained to Mr. Wijewardena regarding the relevant article. And the accused, had further stated that after holding an inquiry he (the accused) had communicated his findings to Mr. Wijewardena. Referring to Mr. Wijewardena, the accused, in his evidence, had stated thus: He wanted me to find out what happened ( 30.10.1996 11.18 a.m.)
Q: Because Mr. Wijewardena wanted you to find out did you hold an inquiry
A : I held a formal inquiry.
Q : Did you communicate whatever findings you had made to Mr. Wijewardena
A : Yes. I was in regular touch with Mr. Wijewardena.
In a matter of this sort the inquiry held by the accused would centre not so much on who was the reporter who supplied the information but on the more crucial question as to who wrote the article in question. In terms of significance, as a matter of common sense, the question as to who wrote the article takes precedence over the question as to who the reporter was - who furnished the item of news. He must be a lover of paradox to ascertain or to know who supplied the information and also to have to dea lt with him, i.e. the reporter who supplied the news item, by taking disciplinary action against the reporter but not to know or to ascertain who the writer was or be indifferent to that question i.e. as to who, in fact, was the writer. It will be recalled that Mr. Wijewardena said that the reporter who supplied the information on which the relevant article was based was dismissed from service although Mr. Wijewardena further stated that he did not know who the writer thereof was. To reproduce a relevant e xcerpt from the accuseds evidence:
Q : When the President made the complaint .... did Mr. Wijewardena take any action on that ?
A: ..... He wanted me to find out what had happened.
The accused had further said:
It is after that I made an informal inquiry to ascertain how this story came about. The story means the story relating to P3 a.
One cannot bring oneself to believe that Mr. Wijewardena did not know the name or the identity of the writer. The accused admits he (the accused) knew who the writer was. The accused had admittedly held an inquiry with regard to the matter of this publication concerning the President and that too, at the direction of Mr.Wi ewardena himself to whom the President had made a complaint. And the accused had stated in evidence that he communicated his findings (of the inquiry held by the accused) to Mr. Wijew ardena
And the accused had further stated in evidence that he also knew who the writer was. The accused wouldnt have withheld the identity of the writer from Mr. Wijewardena and if he (the accused) had done so it further strengthens the belief that the accused himself was the writer. (Of course, it is to be observed that no one had said that the accused withheld the identity of the writer from Mr. Wijewardena.)
From the fact of Mr. Wijewardenas choosing to avoid expressing all he knew and his backwardness, if not the refusal, to answer the question as to who wrote the excerpt relevant to the indictment it is open to any sensible man to draw the common sense conclusion that the accused himself was the writer. Because if the writer had been somebody other than accused - he (Mr. Wijewardena) would have readily disclosed that fact - would have tended to exonerate the accused. The reluctance of Mr. Wijewardena ( who is the chairman or virtually the owner of the press) to disclose the name of the accused as the writer of the offensive excerpt is quite understandable for, as they say, its an ill bird that fouls its own nest. Sherlock Holme said: The gravest issues may depend upon smallest things.
Commenting on the celebrated action in fiction based on breach of promise of marriage, viz, Mrs. Bardell vs Pickwick, Charles Dickens had said that there were 2 kinds of particularly bad witnesses_ a reluctant witness and a too - willing witness and that it was the fate of a witness viz, Mr. Winkle in that case to figure in both these characters Mr. Winkle being a close friend and confidant of Mr. Pickwick. I think we have somewhat of a similar situation here - for though Mr. Wijewardena was called b y the prosecution, yet he was the virtual owner of the press. And Mr. Wijewardena had said that Her Excellency the President was a close friend of his. According to Mr. Wijewardenas evidence Mrs. Chandrika Bandaranayaka Kumaratunga had spent a holiday shortly after her honeymoon in one of Mr. Wijewardenas houses viz. Arcadia which was at Diyatalawa. The evidence of Mr. Wijewardena further shows that there is a good deal of close social communication between Her Excellency the President and Mr. Wijew ardena.
The fact that the question as to whether Mr. Wijewardena knew who wrote the relevant excerpt regarding the President was put by the court calls for remark - because neither the prosecution nor the defence chose to put that question to Mr. Wijewardena.
The 5th point that has a vital bearing on the question, as to whether it was the accused himself who wrote the excerpt in question is this: The accused had said on 27.08.1996 thus :
Q : In the-article P4( a) who is the person myself?
A : I do not know.
( The defamatory excerpt was marked in evidence at the trial as P3(a) - P4(a ) The accused had further said:
Q : Did you ask the writer whether he was there ?
A : No I did not ask him.
It will be recalled that the writer of the relevant excerpt, whoever he may be, had also stated in that relevant article itself that he himself was a witness to the President so entering the hotel by the rear entrance. To quote the relevant excerpt of the article: 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.
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