Proceeding to give further evidence in regard to the same point the accused had stated that he wrote only 3 paragraphs in the entire gossip column marked P3 but that disclosure by him, viz, that he wrote only three passages (which he identifed) "does not go to the root of press freedom but that the disclosure of the identity of the writer of the excerpts (in the same gossip column) relating to Her Excellency the President would although he (the accused) further maintained strenuously that the excerpt P3 (a) P4 (a) was as harmless and innocuous as the three passages that he himself had written to quote:
Q: The fact that you have disclosed your name as the writer of three paragraphs in P3 goes to the root of press freedom?
A: It does not.
Q: Why did you say disclosing your name as the writer of three paragraphs does not go to the root of press freedom?
A: Because I wrote these three paragraphs I have no hesitation to say that I wrote it. I do not think I am letting down any other person."
On the authority of the cases cited above (at pages 29 and 30 hereof) it is as clear as clear can be that the accused editor couldn’t have refused to disclose the identity of the writer, of the excerpt p3 (a) P4 (a) and relevant to the indictment, even on the ground of self incrimination stating that by such disclosure he would be "letting down" another person for the privilege against self incrimination is available only to protect oneself and not another.
There is one matter that calls be remark in this connection i.e. since the accused had elected to give evidence in his own defence the privilege against self incrimination does not apply to questions tending to criminate him, as to the offence wherewith he is indicated in this case for the obvious reason that such a privilege would have made the accused virtually immune from cross examination. Privilege against self incrimination applies, if at all, to prevent the accused being asked questions tending to show that he is guilty of other crimes than that with which he is indicted.
As it is, from the refusal of the accused to disclose the name or identity of the writer, even whilst denying that he is not writer but somebody else is, when, in fact, as demonstrated above he is not protected or immune from such disclosure on any ground known to law or, for that matter any recognised practice, as a matter of common sense, the inference can be drawn, if, in fact it is not irresistible or one may even assume, that the accused refused to say who it was (if it was not he) since it might be he himself who wrote the offending excerpt or to answer that questions might have lead to a train of inquiry which, if pursued, might have lead to the surfacing of some evidence which might tend to criminate the accused.
It is ironical that the accused is claiming a privilege against disclosure in respect of the very piece evidence which would have been potentially favourable to himself and would have immeasurably improved his chances of acquittal if it be true that the writer had been not he himself but a different person. The impression is, almost irresistible, that the accused states in no uncertain terms, that he knows who had written the relevant excerpt, yet he refuses to say who it was, since it may well be he himself. If the accused had diclosed the name - a fact which is admittedly exclusively within his knowledge and thereby shown it was some other person and not he himself who had written that defamatory excerpt such evidence perhaps, would have been potentially decisive in his favour. In this context, it is apposite to remind ourselves that there is a burden on the accused, in relations to the indictment, laid under the Press Council Law, that is, the 2nd count, to show that the publication had taken place without his knowledge or that he had exercised all due diligence to prevent the publication. If the accused - shows that the writer was not he himself but it was somebody else by disclosing the name of that somebody, it would have been vastly easier for him to have proved that the publication was without his knowledge for that would have facilitated the proof of the fact that the publication was without his knowledge, for if the accused had written it, as the circumstances, in fact, do overwhelmingly suggest, there is no gain saying that he would have written it for the express purpose of publication. The case in hand is not a case or does not typify a situation where the accused ought to have known a certain fact or is arbitrarily presumed to know as certain fact - but is a case where one knows for certain that accused knows the relevant fact viz, as to who wrote P3 (a) P4 (a) for no other reason than that the accused himself had categorically said that he knew who wrote the piece or the excerpt relevant to the indictment and as such the inference against the accused is stronger than in a case or situation where the accused ought or is deemed to know a certain fact, but, in fact, does not know or may or may not know but it is arbitrary presumed that he knows the right of silence has never gone unchallenged. Jeremy Bentham said: "Innocence claims the right of speaking as guilt invokes the privilege of silence."
Thus, on the facts of this case, it is clear that the accused editor has no privilege whatever from disclosure of the name of the writer. And, there would, perhaps, be no more apt a situation than this, in which to remark that, even assuming that it was lawful for the accused to have withheld the name of the writer, that all things that are lawful are not honourable for the law,is constrained by the necessary imperfections of its methods to confer many rights and allow many liberties which a just and honourable man will not claim or excercise. What had been stated above would amply serve to show that the accused can neither claim any kind of privilege against disclosure of the name of the writer on the ground of public interest nor even as a matter of personal privilege. In fact, as was said, in Marks vs. Beybus (1890) Q. B. (page 495 at 498). "if upon a trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner’s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail". In the above case, even the Director of Public Prosecutions had to disclose the name of his informant because the judge saw that the strict enforcement of the rule of non disclosure would be likely to cause a miscarriage of justice, and relaxed it in "favorem innocentiae" If he did not do so, there would be a risk of innocent people being convicted."
Thus, in the above mentioned case, the rule of non disclosure was waived or dispensed with or not followed in a case even where the rule or privilege was clearly available when strict adherence to that rule would have resulted in an innocent man being convicted which would be a miscarriage of justice. As remarked above, the risk of accused being convicted is stronger if he is in, in fact, the writer of the relevant excerpt, to which his silence with regard to the name of it’s writer points, than when he is not an somebody else was.
It may well be that the accused had pertinaciously refused to disclose the name of the writer.
Of the relevant passage, whose name the accused states he knows for certain because the accused more than in all probability would have had to disclose his own name.
What the accused is doing, that is, by withholding the identity of the writer is tantamount to suppression of evidence in his own favour for he runs a greater risk of conviction if he is the writer than when he is not. Section 114 (g) of the Evidence Ordinance states " that evidence which could be and is not produced would, if produced, be unfavourable to the person who witholds it." Where a party has the means in his power of rebutting and explaining evidence adduced against him, if it does not tend to the truth, the omission to do so furnishes a strong inference against him. Broom on Legal Maxims 10th Ed. page 639. I have made this judgment somewhat more expansive in order to make the reasons for my decision intelligible even to the un-initiated in the light of circumstances of this case.
In the case before me the fact that the accused editor refused to disclose as to who the writer of defamatory excerpt was even on being questioned by the court calls for remark. To quote from Woodroffe and Amir Ali: "But when.... it is apparent that the accused is so situated that he could offer evidence of all the facts and circumstances and show if such was the truth that the suspicious circumstances can be accounted for consistently with his innocence and he fails to offer such proof, the natural conclusion is that proof, instead of rebutting, would tend to sustain the charge. But this is to be cautiously applied and only in cases where it is manifest that proofs are in the power of the accused not accessible to prosecution". There is a passage in wills Circumstantial Evidence to the same effect where it is said that "the force of suspicious circumstances is augmented, when the party attempts no explanation of facts which he may reasonably be presumed to be able and interested to explain."
As pointed out above, proof as to who wrote the relevant passage regarding Her Excellency the President attending the birthday party of Asita Perera is in the power of the accused on his own showing or on his own admission.
Of course, that fact, i. e. the non disclosure of the writer’s name in the circumstances of this case although overwhelmingly suggestive of the fact that the accused had no one else’s name but his own to disclose - yet may, in itself, not be decisive in that it may still not furnish or afford that quantity of legitimate evidence required for a judicial decision, be it noted in a criminal case, to the effect that no one else but the accused himself is the writer. However, on this issue, there being two schools of thought cannot for certain be excluded, for some may think that the fact that the accused editor persistently refused to disclose the name of the writer of P3 (a) - P4 (a) of itself urges one irresistibly to the conclusion that he himself was the writer there of and the accused’s lips were sealed in regard to the question as to who wrote the relevant excerpt for fear of sealing his own fate. But, to say the least, the fact of non disclosure of the name of the writer (without any valid or legally acceptable reason) whatever has sufficient probative strength, along with other items of evidence to work cumulatively to eliminate for certain the possiblity that somebody (else) other than the accused editor was the writer of the relevant excerpt concerning Her Excellency the President. It is a trite observation to make that the circumstantial evidence owes its strength to its cumulative effect. "It is like the case of a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together might be quite of sufficient strength" - Thomas Vs. Jones (1921) 1 K. B. 48.
To consider individually the other items of evidence or circumustances strengthening or re-inforcing the conclusion, viz., that the accused-editor himself is the writer (of the relevant excerpt) which is the fact of refusal or the non-disclosure of the name suggests:
(i) It is to be observed, that a crucial point that would be almost decisive, (between the proposition that the accused-editor wrote or composed or collated the entire article, or the essay or the literary composition (be it noted that the accused himself has referred to the relevant gossip column as "one essay") that filled the gossip column, from end to end, (of which the relevant excerpt relating to her Excellency the President was only a part) and the accused’s assertion in court, for the first time, that he wrote only 3 passages, in the gossip column without knowing a thing about the rest of the article or composition that filled or constituted the gossip column (an assertion which seems to be somewhat fanciful and does not stand to reason even on the face of itself) would be the question whether the relevant gossip column was written or rather collated by one writer or whether it (i. e. the relevant the gossip column of which P3 (a) P4 (a) was only a part) was composed or got up piecemeal by different writers, working in isolation and independently of one another, so to speak, as the accused-editor sought to make out, at first, in the course of his evidence. Even at the risk of repetition it has to be observed that the evidence of the accused (at first) was in the following terms:
Q: You had no knowledge of what preceded the portion you wrote?
A: No.
Q: Did you have any knowlege of it before it was published?
A: I have no knowledge of the rest of the article other than what I wrote.
Giving further evidence the accused editor has also said thus: "I have not had the faintest knowledge of the article exept the portion that I wrote."
The answer to the question as to whether the entirety of the relevant gossip column was written or collated by one writer or not will vastly contribute to the decision of the issue whether or not the writer of P3 (a) - P4 (a) is the accused-editor himself - which issue was inscrutable and wrapped in mystery at the outset of the trial but has now cleared up at long last on the accused’s own evidence towards its ending. If, in fact, it can be held as perforce it has to be held on the evidence, that the whole of the gossip column represented or was the work or piece of literary composition of one writer it will be almost final proof, as the facts stated in the sequel would show, of the fact that none but the accused-editor himself was that one writer because, the finding of fact that the entire gossip column (of which the defamatory exerpt i. e. P3 (a) - P4 (a) was a part) was, as conceded by the accused himself (to use the accused’s own words): "..... was one composite writing" or "one single composition.... put together by one writer" must, in the circumstances, to a large extent involve the rejection of the accused- editor’s evidence given at one stage, i. e. at the outset, of his evidence itself, to the effect that he wrote or composed not the entire gossip column but just 3 passages there of concerning a "mix up" in the allocation of an official residence to a minister, a position which the accused took up for the first time at the trial - and as a necessary corollary of that rejection, the proposition that the accused-editor wrote or rather composed the entire gossip column is immeasurably buoyed up to the point making that fact an almost absolute certainty - as the facts stated in the sequel would further show.
In his statement to the C.I.D. made within 3 days of the publication of the relevant gossip column the accused had stated thus: "The column is written by one writer but as I stated earlier news items in the column are collected from different sources."
But the essential purpose or rather the essentiality of his evidence in court was, if possible, to break away from the position he had thus, stated in definite terms in his statement to the C.I.D. viz., that the relevant gossip column, (of which P3(a) - P4(a) was a part) was written by one writer and to show that it (gossip column) was the work or composition by several writers. In this context two matters have to be made clear. First, that the statement made to the C.I.D. is not evidence in its own right and that statement to the C.I.D. (viz., that the "column was written by one writer...") in its effect, if at all, is limited to demolishing the accused’s evidence in court, given at one stage, (for there was a continuous succession of changes in his evidence as a whole bearing on this point as the sequel would show) that the gossip column in question was written by several writers.
On 13th August 1996 the accused, referring to the gossip column, had in his evidence, stated:
Q: The article with heading... refers to how many parties?
A: Seven parties.
Q: Is it your postion that in respect of each party there was a separate writer?
A: No.
(It is to be observed that 6 or 7 separate parties or social gatherings desecribed in the relevant gossip column includes the one that Her Excellency the President is alleged to have attended).
Giving further evidence the accused had stated: "There would not have been seven writers, at that time only 4 writers were there, including myself."
Q: taking your experience as a writer all these seven parties could have been covered by one writer?
A: Need not be may be 2 or may be 3.
Q: Can you exclude the possibility that one writer could write about all parties?
A: Sometimes there is a possibility.
First paragraph of the gossip column clearly implied or showed that the writer who composed the gossip column knew of all the parties that had been written about in the article or the relevant gossip column of 19.02.1995 which fact in itself was almost final proof of the fact that one writer wrote about all the parties or social gatherings referred to in the gossip column, for the said first paragraph reveals or evidences such knowledge and speaks for itself in that regard. To cite the said paragraph:
"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..." The accused at first made no response in words, perhaps feeling that it was best to say nothing when he was questioned, in regard to the above mentioned first paragraph of the gossip column, as follows:
Q: Can you tell us that the person who wrote the first paragraph knows that he is going to write on series of parties?
A: No answer.
Q: The person who wrote the first paragraph presuppose that he has knowledge of all 7 parties that had been written in the aritcle?
A: Not necessarily. There may have been 2 or 3 writers.
Q: Is it your position that this article is written by one person?
A: No. This article is not written by one person.
Giving further evidence on the same date (13.08.1996) the accused had stated:
Q: Is it your position that it is written by 2 or more people?
A: Yes, it is written by several writers.
In considering the diverse explations given by the accused and how readily and quickly, in the course of his evidence, he kept on artistically if not artfully, altering his stance in regard to the question whether he told the CID that the "column was written by one writer" or not, there is the real prospect of the defence even arguing that when the accused said, (in evidence in court) that the gossip column was "written by several people" - he (the accused) meant that it was written by several reporters. But he is precluded from saying so because he had clearly said (at one stage in the course of his evidence) that the gossip column was written by writers on the information supplied by reporters thereby making a clear distinction between the two.
The defence might find it necessary to have recourse to such an argument viz. that when the accused said in evidence that the gossip column was written by "several writers" - he meant "several" reporters because the evidence of the accused (given on 13. 08. 1996) reproduced above, viz., that the gossip column was "written by several writers" was in the teeth of his own evidence given a little over two months later, i. e. on 30. 10. 1996 (by which date the impossiblility of maintaining or asserting the theory that the gossip column was composed by several writers had, perhaps, dawned upon even the defence) which was as follows: "One writer puts together various items collected from various sources". Giving further evidence on the same date (30. 10. 1996) the accused-editor had also stated:
Q: So that basically the gossip column is a composition of one writer?
A. Yes it is one writer who puts them together. It is a composition of one writer. One writer puts together such news items and makes one composition.
Q. And that one composition is the gossip column?
A: Yes, that one composition is the gossip column.
On the evidence reproduced above you can be sure of one thing, if of no other, that is, that the gossip columnist was one person or one single writer as the accused-editor was, willingly or un-willingly, constrained to admit, at long last.
The above mentioned evidence of the accused-editor himself makes it conspicuous and places it beyond any manner of doubt that one single writer had made or composed the entire gossip column and in the light of this evidence of the accused himself (given 30.10. 1996) the falsity of his previous evidence (given on 13. 08. 1996) to the effect that it was "written by several writers" becomes manifest. (vide evidence reproduced at page 48 hereof).
To seek to harmonise or explain away, if possible, the incompatibility in the accused’s evidence (given at different stages) touching this aspect, viz, as to how many writers wrote or composed the gossip column - the defence might, perhaps, argue that when the accused (on 13. 08. 1996) stated in evidence that the gossip column was "written by several writers" the accused had in contemplation or meant several reporters inasmuchas several reporters submitted news items which news items (the defence would argue) were submitted by "several" reporters in writing.
But there is no scope for such an argument, for the accused’s own counsel (towards the very ending of the accused evidence in re-rexamination) had put the following question, i. e. on 30. 10. 1996 to which the accused had given the illuminating if not the revealing answer reproduced below which makes it crystal clear that the writers and the reporters are distinct and separate.
Q. The gossip Columnist makes one composition of various news items supplied by various reporters is that not so?
A. Gossip columnist makes one composition of several articles supplied by various reporters."
The above anwser of the accused is overwhelmingly significant and illuminating in 2 directions or respects for that answer is final proof of the fact that the gossip columnist (of the relevant gossip column) was one writer and that one writer had composed the said gossip column on items of news supplied by reporters which answer also makes the distinction between writers and reporters still more conspicuous.
(The fact that the counsel actually conducting (in person) the defence were different on the two dates, referred to above, i. e. 13. 08. 1996 and 30. 10. 1996 calls for remark for they seemed to appear in or by rotation)
Even on 28. 10. 1996 the accused editor had, referring to the gossip column, stated thus:
Q. Now the different stories in that particular column were given by one person or a number of reporters?
A. It was given by a number of reporters.
The fact that the writer and the reporters are different and distinct persons is mainfested in other ways also and in other contexts as well and that too on the accused’s own evidence. For instance, on 13. 08. 1996 the accused had stated:
Q. The person who wrote this article is an employee of your press?
A. May I answer this way. The person who wrote is not an employee of the press and has left the press. The person who gave the story is still in service. The person who supplied the information is still there."
On the same date i. e. 13. 08. 1996, the accused editor had, under cross examination, also stated as follows:
Q. Who supplied the information to the writer. Is he a reporter?
A. He is a reporter.
Giving further evidence, the accused had said: I know the person who supplied the information to the writer."
There is no doubt that when on 13. 08. 1996 the accused said:
Q. Is it your position that it is written by two or more people?
A. Yes, it is written by several writers" he (the accused) was clearly and un-mistakeably referring to the writers and not to the reporters who supplied the items of news for the former (the writers) for in the same context, in which he (the accused editor) had given the answer reproduced above - the accused had (on same date i. e. 13. 08. 1996) also said thus in continuation of the above answer:
Q. The article with the heading of P9 refers to how many parties?
A. Seven parties.
Q. Is it your position that in respect of each party there was a separate writer?
A. No.
Q. How do you say that there was not a separate writer?
A. There would not have been seven writers. At that time only four writers were there including myself".
It is clear that the accused when he said: "......at that time there were only four writers including myself"- he was clearly referring to the writers in the same class as he (the accused ) himself was - and not to the reporters the latter being merely (as the evidence in this case attests) mere sources of information.
There is no gainsaying that that the accused editor made an attempt falsely to cause the court to believe that the relevant gossip column was the composition of several writers or columnists which attempt proved to be ineffectual, as shown above, on the accused’s own evidence towards the latter part of his evidence - if not towards its very ending. Vide the evidence reproduced at pages 49 and 51 hereof where the accused had admitted that the "Gossip Column is a composition of one writer."
Nor can he (the accused editor) deny having made, in the course of his evidence, an endeavour to show falsely that the gossip column was composed, not by one, but by several writers for he had clearly done so mainly in 3 ways or by making 3 untrue statements which were calculated or designed to cause the court to believe that the relevant gossip column (in question) was compsed by several writers or columnists. The 3 ways referred to above or the 3 false statements may be stated as flollows:
(i) by falsely denying that he told the CID that the "column is written by one writer."
(ii) by falsely seeking, to cause the court to believe, in the course of his evidence, that the by the term "column" in his statememnt to the CID - he meant not the gossip column but just one item of news in the gossip column.
(iii) By seeking to persuade the court of what is false, that is, that "several writers" composed the gossip column by stating (in court) that when he (the accused editor) told the CID in his statement thus: "Gossip Columnist is not always one single person...." - he (the accused) had meant or intended by the above statement, to say that the gossip column was written or composed by "several writers" thereby seeking to convince the court that he (the accused) must be taken to halve told even the CID that the relevant gossip column was the composition of several writers and not of one columnist.
The accused editor’s evidence (in court) on this point Viz, Whether he told the CID or not that "the column is written by one writer" is so curious as to invite attention because it abounds in shifts and turns which are as elusive as elusive can be and it is worth reproducing his evidence to illustrate the validity of the comment that if there is anything worth noticing in the accused’s evidence touching that point - it is the utter lack of cohesion for there was a continuous succession of changes in his stances - although, when all else failed, eventually (as pointed out above too) the accused ended up, conceding the true position by admitting that the "gossip column is a composition of one writer".
To cite from the accused’s evidence in confirmation of the view expressed by me above in regard to the fickel and inconstant nature of his evidence bearing on the question as to whether the accused editor did, in fact, tell the CID that the gossip column (in the form is which it appeared in relevant issue of the Sunday Times) "is written by one writer" or not:
Q: At the time you were questioned by the CID did you know that the column was written by several persons?
A: Yes I knew at that time."
In the first instance, the accused editor had, in absolute and explicit terms, denied that he ever told the CID that "the column was written by one writer." To quote from his evidence given on 27. 09. 1996.
Q. "Do you concede that you told the CID that the column was written by one writer?
A. I do not concede; that is not what I have said."
Thus, to begin with, the accused had categorically denied having ever told the CID that the: "column is written by one writer."
Then on 27. 08. 1996 also (vide evidence recorded after the lunch interval on that date) the accused had stated that his statement to the CID that the gossip column was written by one writer was not correct.
Q. You have said that the entire column is written by one person.
A. it is not correct; in that statement what I have told the CID is not correct.
This version viz, that what the accused told the CID (in his statement) "is not correct" - differs in form and details from the version (given by the accused) just considered or referred to in this judgement in the passage immediately preceding wherein the accused had denied in un-qualified terms that he ever made a statment to the CID "that the column is written by one writer" - for this version, that is, what he (the accused) had told CID in his statement - his statement to the CID being that "column is written by one writer" - was "incorrect" necessarily carrries with it a tacit admission, that the accused had, in fact, made such a statement to the effect that "column is written by one writer" although such a statement did not, in fact, represent the true position, for in his evidence (reproduced above too) the accused had clearly said thus: "... in that statement what I have told the CID is not correct."
But strange to say, on 25. 09. 1996 (evidence starting at 11.35 am) the accused had explicitly admitted having told the CID that the column was written by one writer. His evidence in this regard was as follows:
Q. "You have stated column is written by one writer; you have stated specifically?
A. I have stated so."
It is not to be forgotten that the accused had also denied saying so as explicity as he now concedes saying so, and his present admission of having told the CID that column was written by one writer is just the contrary of what the accused had said in evidence on 27. 09. 1996 for on that day (as pointed out above at page 58 hereof) the accused had denied having said so.
On 27. 08. 1996 as well (vide the evidence recorded after lunch- interval) the accused had admitted telling the CID that "the column is written by one writer" and the said admission was in the following terms:
Q. "Do you recall that you answered that question the column is written by one writer but as I stated earlier news items are collected from different sources?
A. If it is in the CID statement it is correct; I may have said so; this was three days after this news item appeared."
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