The Criminal defamation Case

CBK vs. The Sunday Times

Part X

20th July 1997

UPHOLDING SUCH AN ARGUMENT WILL BE PRODUCTIVE OF UNDREAMT OF RESULTS. IF THE GOOD FAITH OF ACCUSED IS THE DECISIVE TEST IN DECIDING WHETHER THE ACCUSED OUGHT TO BE CONVICTED OR NOT ON COUNT No. 02 (LAID UNDER THE PRESS COUNCIL LAW) - AND IF THE ACCUSED HAD TO BE ACQUITTED WHEN HE, IN FACT, HONESTLY BELIEVED THE ARTICLE TO BE NON-DEFAMATORY - THEN AS A NECESSARY COROLLARY OF THAT PROPOSITION THE ACCUSED HAS TO BE CONVICTED OF THE OFFENCE IN RESPECT OF WHICH THE ACCUSED IS INDICTED ON COUNT No. 02 WHEN HE (THE ACCUSED) IN GOOD FAITH BELIEVED THE ARTICLE OR THE PIECE OF WRITING TO BE DEFAMATORY WHEN, IN FACT, THE WRITING WAS HARMLESS - EVEN IN THE OPINION OF THE COURT - FOR THAT PROPOSITION PUT FORWARD BY THE LEARNED PRESIDENT’S COUNSEL, MUST UNIFORMLY AND RIGIDLY WORK BOTH WAYS.

The argument of the learned President’s counsel for the defence was that as the accused in good faith believed the relevant article to non-defamatory - and even if he (the accused) had been aware of the publication of the article still the offence in respect of which the accused was indicted on count No. 02 must be held to have been committed without the knowledge of the accused who - so the counsel argued - consequently ought to be acquitted on count No. 02. To repeat the argument set out at paragraph 16 of the statement of submissions dated 04.06.1997 - which submission was in the following terms:- “ That is to say, the accused could have knowledge of the publication and yet have no knowledge that an offence was committed by such publication.”

It is to be observed, as explained above, that an editor of a newspaper is guilty of an offence under Section 14 of the Press Council Law if as stated in Section 15 of the same law” any statement or matter concerning a person which will amount to defamation of such person within the meaning of Section 479 of the Penal Code” - is published in the newspaper.

In his oral submissions and at paragraph 16 of the written submissions dated 04. 06.1997 it was pointed out by the learned President’s counsel that the accused made a mistake of fact in thinking that the relevant article was not defamatory. To quote from the written submissions dated 04. 06. 1997 (para.16) relevant excerpt of the submission being as follows:” ..... the court will bear in mind, that as in other offences involving that ingredient of knowledge the defence of mistake of fact or bona fide belief negativing knowledge of the commission of an offence is available to such person.....”.

The above is an excerpt of the written submissions of the defence.

Even, assuming for the sake of argument that the accused had, mistakenly but in good faith (and honestly) believed that the relevant article concerning the President was not defamatory yet this mistake on the part of the accused is clearly not a mistake of fact but a mistake of law although the learned President’s counsel argued that it was so, i.e. that it was a mistake of fact. Mistake, in point of law, as is well known, is never a defence in criminal cases. In Ratanlal and Thakore it has clearly been explained how a mistake of law arises. To quote: “A mistake of law happens when a party having full knowledge of the facts comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference arising from an imperfect or incorrect exercise of the judgment upon facts as they really are.”

Even assuming for the sake of argument, that the accused honestly believed that the article was harmless, yet it is clear that the accused had formed the view or the opinion that the relevant article was not defamatory because he (the accused) had “imperfectly and incorrectly” exercised his judgment for if he (the accused) had correctly exercised his judgment he (the accused) would not have formed the opinion that the article was not legally defamatory in effect. In other words when the accused formed the opinion that the article was not defamatory in the eyes of law - upon or in consequence of the wrong exercise of his judgment - he (the accused) was clearly making a mistake as to the legal effect of the publication of the article. As such he was making a mistake of law which is not a defence.

The only mistake that the accused - editor had made (assuming that it was made in good faith) with respect to the relevant article was his being ignorant of the legal effect of the publication of the facts stated therein. As such, the mistake was manifestly one of law. In the local case of Weerakoon vs. Ranhamy 23 NLR 33 it was held by the full court (Bertram CJ, De Sampayo J. and Schneider A. J. with Ennis J. dissenting) that the accused who was charged with clearing crown land without a permit, was acting under a mistake of law, namely, a mistaken belief that it was possible for him to acquire a good title to chena lands in the Kandyan Provinces merely by notarial deeds and possession and that consequently he was not entitled to the benefit of Section 72 of the Penal Code” - which section reads thus:- “Nothing is an offence which is done by any person who is justified by law who by reason of a mistake of fact and NOT BY REASON OF A MISTAKE OF LAW in good faith believes himself to be justified by law in doing it.”

Austin says, “that if ignorance of law were admitted as ground of exemption from criminal liability, the court would be involved in questions which it were scarcely possible to solve and which would render the administration of justice next to impracticable.”

It is to be noticed that the written submissions dated 04.06.1997 and the oral submissions made by the defence on the same date wholly relate to count No. 2 except that in the said submission it had been argued that there was an “inconsistency of the facts alleged in the charges.” Hence the decision to deal with the submissions made on 04.06.1997 in the context of the consideration of count No. 02.

As explained above count No. 02 in the indictment is framed in terms of section 14 and 15 of the Press Council Law, combined effect of the operation sections 14 and 15 of the Press Council Law is to make the editor of a newspaper guilty of an offence under the Press Council Law if any statement or matter concerning a person is published in a newspaper if that statement or matter “will amount to defamation............. within the meaning of Section 479 of the Penal Code”. But the proviso to the section 14 of the Press Council Law provides a two-fold defence to the editor in the following terms:”...... no such person shall be deemed guilty of an offence ......... if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence.”

By means of his argument, viz., that the accused - editor in “good faith” believed the relevant article to be non-defamatory - what the learned President’s counsel or the defence sought to show, as has been explained above, was that “the offence was committed without the knowledge” of the accused. But learned President’s counsel was clearly in error in so interpreting the proviso to Section 14 of the Press Council Law. In the circumstances of this case, when the proviso of Section 14 says that no such person shall be guilty of an offence - if he proves that the offence was committed without his knowledge” - it does not mean (in the state of facts of this case) that the accused - editor can escape criminal liability by showing that he (the accused-editor) honestly believed the article to be innocuous or non-defamatory. What the said proviso means is, in the case of the commission of an offence (in consequence of the publication of any statement or matter concerning any person) as in this case, that the editor has to “prove” that the publication was without his knowledge because as explained above, it is the publication of the relevant statement or matter that is “the commission of the offence” and there would not have been the commission of any offence whatever, had there been no publication. Publication is the gist of the offence of defamation. That, I thought is more or less, common-knowledge. Publication is the essence of the matter which means the communication of the disparaging statement to someone other than the person defamed. As had been repeatedly and emphatically stated above the law of defamation does not look to the meaning intended by the writer or speaker but to the meaning attached by a reasonable reader or listener. THE QUESTION IS NOT SO MUCH AS TO WHETHER YOU AIMED AT SOMEONE BUT WHETHER IT HAS A TENDENCY TO HIT SOMEONE.

In law it is rarely possible to explain matters with mathematical precision for sometimes there can be as many opinions as there are heads. But, in this instance, the point - that, what the proviso requires the editor to prove is NOT that he honestly believed the words to be harmless (non-defamatory) but that the publication of the “statement or matter” was without his knowledge - is placed beyond all controversy on the face of the relevant section itself viz., Section 15 of the Press Council Law which states thus: “Every person who publishes or causes the publication of, in any newspaper...... (b) any statement or matter concerning a person which will amount to defamation of such person within the meaning of Section 479 of the Penal Code........ shall be guilty of an offence.................”

That it is crystal clear that it is publication that is the commission of the offence because the section itself says so. YOU COMMIT THE OFFENCE WHEN THE PUBLICATION IS MADE IN THE COLUMNS OF THE NEWSPAPER, OF WHICH YOU ARE THE EDITOR, IRRESPECTIVE OF WHETHER OR NOT YOU KNEW THAT THE PUBLICATION WAS DEFAMATORY IN THE EYES OF THE LAW.

By virtue of the operation of Section 14 of the Press Council Law which states: “In the case of any offence under this law committed through the means of newspaper................ editor............. of such newspaper shall be deemed to be guilty of that offence.”

Thus the editor, attracts criminal liability by virtue of the fact that he is the editor. But this does not mean that the editor cannot be dealt with in terms of Sections 14 and 15 of the Press Council Law when the editor himself is the writer of the relevant article or when he (the editor) himself had caused the publication to be made.

Proviso to section 14 states: “................ that no such person shall be guilty of an offence under this law if he proves that the offence was committed without his knowledge....”. It is apparent that when the proviso says no such person, i.e. the editor etc., shall not be guilty of an offence “if he proves that the offence was committed without his knowledge” - the proviso clearly requires the editor to prove that the relevant publication was without his knowledge for it is manifest on the face of Section 14 of the Press Council Law (the relevant excerpt of which is reproduced above) that it is publication that is the commission of the offence or that the offence is committed by means of or in consequence of the publication. It is to be recalled that the argument of the learned President’s Counsel was as follows: That is to say, the accused could have knowledge of the publication and yet have no knowledge that an offence is committed by such publication.” (Vide para 16 of the statement of submissions dated 04.06.1997).

The above submission, it will now be clear, is as wrong as wrong can be and the submission itself pre-supposes, in some degree, that the publication was with the knowledge of the accused.

Thus, in terms of the proviso to Section 14 of the Press Council Law, for the accused to be entitled to an acquittal on count No. 02 he must, be it noted, “prove” that the offence i.e. the publication was “without his knowledge”. In this context it is necessary to consider the burden (of proof) on the defence. There are two recognised standards of proof - (i) beyond reasonable doubt; and (ii) on the balance of probabilities. The former is the standard required of the prosecution - the latter standard suffices where the onus is on the defence. It is to be observed that the accused was called upon, at the stage of the closure of the prosecution case, for his defence because the court was satisfied (ON THE EVIDENCE AVAILABLE TO COURT AS AT THAT STAGE) that the relevant article constituted the offence of defamation within meaning of Section 479 of the Penal Code. Now the burden (of proof) has shifted to the defence (the accused) to “prove” that that “offence was committed without his knowledge”.

Please turn over

Where a statute imposes the burden of proof on the accused - the requirement is invariably construed to require the standard of proof on a balance of probabilities which means that it is a little more likely than not that the conditions of the defence are fulfilled. This means that the accused is under a duty to “prove” that the fact that the publication of the relevant article was without his knowledge is more probable than not. If the probabilities are equal i.e. if the court is un-decided on the evidence-the party bearing the burden i.e the accused will still fail. It will be recalled that section 3 of our Evidence Ordinance states that if a matter is neither proved nor disproved it must be held not to have been proved. Facts stated in the sequel would show that the accused-editor had failed to prove on a balance of probability that the publication was without his knowledge. On the contrary what is much more probable is not that the publication of the relevant article, in both editions of the Sunday Times, had taken place without the knowledge of the accused but rather that the publication had taken place with his knowledge and also on the express authorization of the accused-editor.

The facts stated at pages 149-175 hereof (of this judgment) are highly relevant in regard to the question whether or not the publication had taken place with the knowledge of the accused who was and still is the editor of the newspaper in question.

The fact, that the publication of the relevant article in the city edition had been sanctioned by him is freely and unreservedly admitted by the accused-editor as shown above at page 186 hereof. Therefore, the accused has to be convicted on count No. 02 even assuming, for the sake of argument, that the publication in the provincial edition was made without his knowledge. In the light of the finding (above) reached by the court that the entirety of the relevant article was composed or made by the accused himself, it goes without saying that the relevant article was published with the “knowledge” of the accused in the provincial edition as well - for he (the accused) would not have composed or made the article except for the express purpose of publication. (The reasons for reaching the finding that it was the accused himself who composed the entire gossip column that was published on 19. 02. 1995 are given in this judgment from pages 20-145. But even if the fact that the accused editor was the maker or composer of the entirety of the relevant gossip column is left out of consideration-yet it is, to say the least, more probable, if not certain, that the publication of the relevant article in the provincial edition was also with the knowledge of the accused. As pointed out above the answer of the accused given 03.07.1996 is almost final proof of the fact that he had knowledge of the article before the publication of any edition - city or provincial. It is an answer worth reproducing and is as follows: :-

“Q: Is it your position that this article alleged to be defamatory and in respect of which you have been indicted was published without your knowledge?

A: I saw the article.

Q: When did you see the article?

A: Just before the publication.”

It is not be forgotten that accused had said that he himself wrote 3 passages in the entire article. Assuming that it was so and that that was the truth - it renders it more likely than not that he would have read the entire article - he being the editor - just to see how those 3 passages fitted in with the rest. The above answer i.e. that he saw the article” just before the publication” - in a way, is almost final proof of the fact that the accused had knowledge of the entire article before any - publication - either the provincial or city. And as he had such knowledge of the article- because he had even read it - before the publication, he would have known - that it would be published in both editions because the articles are composed or made (in Newspaper Offices) for publication and not for anything else. The accused had said on 23. 09. 1996 in the course of his evidence thus:

“Q: If you had not approved anything for publication what would have happened to the whole article?

A: It would have been removed and replaced with some other article.

Q: What would be the position, if you had not approved the article relevant to this case?

A: It would not have been published.”

Even assuming, in fairness to the accused, that the above answers were given in relation to the publication of the relevant article in the city edition, yet those answers are significant in that they clearly show that the relevant article would not have been published in the city edition without the sanction or the imprimatur, so to say, of the accused. If the relevant article could not have been published in the city edition without the sanction of the accused - one wonders how the same (article) could have been published in the provincial edition without the accused’s sanction and even the knowledge. The probabilities are that if publication in the city edition had taken place admittedly with the accused’s express sanction and authorization there would have been greater need for such authorization for publication in the provincial edition which was the first edition being earlier (than the city edition) in point of time in the matter of publication.

The accused had said, in the course of his evidence on 27. 08. 1996, that before the publication of the city edition, a photo-copy of the page that carried the article relevant to this case was sent to him - for his approval. (Vide page 156 of this judgment and also the observations made by me at page 157 of this judgment in this regard.) To quote from the accused’s evidence given on 27. 08. 1996.

“Q: After the publication of the provincial edition but before the publication of the city edition you got a copy of the page which carried the article relevant to the case?

A: There were some changes.

Q: In what form was the page?

A: It was a photocopy.

Q: That photocopy was the page that appeared in the city edition?

A: Yes.

Q: Why was the photocopy of that page that carried the relevant article sent to you?

A: When there was a change it was sent to me.

Q: Why was it sent to the editor?

A: I was there if I wanted to make any changes I could have done it.

Q: You did not read it?

A: I read it.

Q: When page 9 was in photocopy form did you read it?

A: Yes.

(It was page 9 that carried the relevant article in both editions of The Sunday Times)

Q: That was the page that subsequently appeared in the city edition?

A: Yes.

Q: You said that the photocopy of page 9 was sent to you prior to the publication of the city edition?

A: Yes.”

In this regard it is apposite to reproduce the observations I had made in this regard at page 157 of this judgment and although it involves some repetition which cannot be helped; for those observations are even more relevant in this context than in that. To cite the said observations: “The point I wish to make, in this regard, is this, that is, that, if as admitted by the accused himself, the relevant page containing the relevant article was sent to the accused for his (accused’s) approval prior to publication in the city edition, there is greater reason to suppose that it would have been so sent to the accused for his approval prior to publication in the provincial edition, as well, which edition is anterior to the city edition (in point of time). In other words, if the subsequent publication in the latter edition, that is, in the city edition was admittedly with the accused’s approval it is rational to think that the earlier publication, being also the first publication would also have been necessarily with the accused’s approval or at least, it would have been sent to him prior to the publication of the provincial edition as well.”

It is to be noticed that the accused-editor had said (Vide the evidence reproduced at page 290 hereof) thus: “when there was a change it was sent to me.” That is the photo-copy of the page (containing the relevant article) that was later published in the city edition had been sent to the accused-editor as some changes had been introduced to that page which made it differ somewhat from the arrangement of that page in the provincial edition. This presupposes that changes introduced to the page containing the relevant article that was to be published in the city edition required the sanction of the editor which, in turn, serves to show that the format of the relevant page that carried the article in the provincial edition which was the earlier edition, also would have been approved by him. It is because the format and arrangement of the relevant page of the provincial edition had been decided on by the accused-editor or approved by him that no one could or wanted to introduce changes to it without consulting the accused and obtaining his prior sanction.

Part XI

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