The Criminal defamation Case

CBK vs. The Sunday Times

Part XI

20th July 1997

In his evidence on 27. 08. 1996 the accused had said as follows:-

“Q: Even prior to the publication of the provincial edition the relevant page would have come to you?

A: That would have been sent in proof. I cannot recall whether I was there or not. If I was there they would have sent it to me. I am not hundred per cent sure whether this page was sent to me prior to the publication of the provincial edition.”

It was pointed out above that the burden on the accused was to prove that it was more probable that the publication of the article was without his knowledge rather than with his knowledge. When the accused states, as he has done above, that he is not hundred per cent sure whether the page containing the relevant article was sent to him or not before the publication of the provincial edition-he (the accused) does not exclude the probability of the relevant page being sent to him before the publication of the relevant article which renders the fact that the publication (in the provincial edition) was with the accused’s knowledge more probable than the fact that it was published “without the knowledge” of the accused.

The accused had further, said as pointed out above, that he - to quote the accused’s own words - “I cannot recall whether I was there or not” - implying thereby that although the relevant article was sent to him prior to the publication of the relevant article in the provincial edition he may still not have read it as he may not have been in his office. But the accused does not say clearly he was not present for he had merely said: “I cannot recall whether I was there or not.” This does not afford any proof but is mere surmise or conjecture. But he (the accused) distinctly remembers that a photo-copy of the relevant page containing the article in question was sent to him (in proof) prior to the publication of the city edition. If he (the accused) was there to read the relevant article in proof before the publication in the city edition on the same date - the probabilities are that he (the accused-editor) would have been there in the office even before the time of publication in the provincial edition. It is to be observed that the accused had said that if the relevant page containing the article was sent to him prior to the publication in the provincial edition he would not have neglected to read it. To quote from the accused’s evidence:

“Q: If it was sent to you then is it you neglected to read it?

A: I do not say neglected to read.....”

The accused had also said thus:

“Q: Is it your position that you did not read any single page of the Sunday Times of the 19th of February 1995 in proof prior to the publication of the provincial edition?

A: I cannot recall and it is not my position what pages I read.

Q: You cannot answer that question one way or the other?

A: Yes.”

On the evidence of the accused, the relevant excerpts of which are reproduced above, one can never reach the conclusion that the fact i. e. that the relevant article concerning Her Excellency the President in the provincial edition was published without the accused’s knowledge is more probable than the fact that the publication was with accused’s knowledge. Creating a doubt in regard to the fact as to whether or not the publication in the provincial edition was with the accused’s knowledge falls short of proof on a balance of probability although accused’s evidence in that regard is not cogent enough to engender even a doubt in regard to the question whether publication (in the provincial edition) was with the accused’s knowledge or not.

It is not without interest and relevance to observe as had been pointed out at page 149 above - that after having told the court on 03. 07. 1996 in the clearest terms that he saw the relevant article - to use the accused’s own words - “just before the publication” - he (the accused) on a subsequent trial date (27. 08. 1996) said that he could not even recall having given such an answer (Vide152 hereof) - nor even remember his having been asked that question by the court.

Then, as pointed out above, a little later, he said he recalled the answer that he gave on 03.07.1996. Then as pointed out page 163 (of this judgment) he said that he felt that the answer recorded on 03. 07. 1996. viz, “just before the publication” - represented only a part of the answer and that he felt or thought that the recording of a part of his answer that he gave on 03. 07. 1996 had been omitted (vide page 163 hereof where the relevant evidence in this regard had been reproduced). Then giving evidence on 10. 10. 1996 he said that he was “not hundred per cent sure” whether he drew any distinction between the provincial and the city edition apart from saying (on 03. 07. 1996) that he read the relevant article “just before the publication”. Finally on 14. 10. 1996 the accused admitted that -”just before publication” - was in fact, the full answer that he gave to court on 03. 07. 1996 (vide page 173 above of this judgment). The accused had also conceded on 14. 10. 1996, in the last resort, as shown above, at page 172 of this judgment that his evidence to the effect that a part of the answer he gave on 03. 07. 1996 had not been recorded was “incorrect”. In other words, the accused had conceded that his evidence that only a part of his answer had been recorded on 03. 07. 1996 was incorrect which, euphemistically, means that it was false.

The witness i. e. accused has only himself to blame for there is very little that an earthly power can do for a witness who admits his evidence is, to put it euphemistically, incorrect - if not false. And as pointed out on page 173 above - he the accused, at long last (on 14. 10. 1996) admitted that the full answer he gave on 03. 07. 1996 had been correctly recorded. To quote from the accused’s evidence given on 14. 10. 1996.:

“Q: What you say is the answer you have given on the 3rd of July 1996 to court is correctly recorded?

A: Yes.

Q: And when the court questioned you on 3rd of July 1996 as to when did you see the article, you had given the following answer?

A: “Just before the publication.”

Q: Is it the full answer you gave to that question?

A: Yes, that is the full answer I gave to court on the 3rd of July 1996.”

The question, is why did the accused seek to show that he could not recall the answer he gave to court on 03. 07. 1996 or why did he seek to adopt the position that the words “just before the publication” represented only a part of his answer which position is now found to be false, strangely enough, on the accused’s own evidence reproduced above wherein the accused had admitted that his answers given on 03.07.1996 are correctly recorded. Obviously, it is a realisation of guilt and a fear of the truth that was embedded in the answer that he gave on 03.07.1996. It is worth repeating that answer that the accused gave on 03.07.1996 for that answer goes a long way to offer a reliable solution in respect of the question whether the relevant article was published in the provincial edition with accused’s knowledge or not.

“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.”

For the true factual position being what he had stated earlier i.e. on 03.07.1996 that he read the article before the publication, he sought to retract that statement, if he could, for that (answer) given on 03.07.1996 would effectively preclude him (the accused) from denying that the publication in either edition was without his knowledge for the said answer shows that the accused had read the relevant article (to use his own words) : “just before the publication.”

From all that had been said above, one of the matters that is cleared up is this, namely, that when the editor of a newspaper is “deemed to be guilty of an offence” (in terms of Sections 14 and 15 of the Press Council Law) in consequence of the publication of a “statement or matter” in the newspaper which “statement or matter amounts to defamation within the meaning of Section 479 of the Penal Code - the editor when indicted in terms of the aforesaid sections is entitled to be acquitted only if he proves that the publication had taken place “without his knowledge” or that he had exercised all due diligence to prevent the commission of the offence. In this case in hand the accused had sought belatedly to prove (for he had at first on 03.07.1996 said that he read the relevant article “just before publication”) that the publication in the provincial edition was without his knowledge. But the accused has failed, as explained above to “prove” that the publication was without his knowledge. What would have been the position that would have arisen in this case if I had not held, at the stage of the closure of the prosecution case, that the fact that offence of defamation was committed had been proved “to a moral certainty” i.e. beyond reasonable doubt. In other words, if I had called upon an accused for his defence in respect of a count such as count No.02, in this case laid under the Press Council Law without satisfying myself as to whether or not it had been proved beyond a reasonable doubt that the offence of defamation had been committed - then in a case of this sort the accused-editor would have been convicted not because it had been proved that the offence of defamation, had been proved beyond a reasonable doubt but because the accused had failed to ‘prove’ his defence on a balance of probabilities. This underlines the need for the court to be satisfied beyond a reasonable doubt, as at the stage of the closure of the prosecution case, whether the offence of defamation can be said to have been committed beyond reasonable doubt, in consequence of the publication - for after the accused-editor is “deemed to be guilty” and called upon for his defence in terms of Section 14 of the Press Council Law he cannot thereafter be acquitted if he (the editor) fails to prove (a) either that the offence was committed without his knowledge or (b) that he (the editor) had exercised all due diligence to prevent the publication for he (the editor) has invariably to be convicted if he fails to prove either of the two defences prescribed in the proviso to Section 14 of the Press Council Law as would be clear from the terms of Section 14 of the Press Council Law which is as follows:-

“In the case of any offence under this Law committed through the means of a newspaper, the proprietor, publisher, printer, editor and journalist of such newspaper shall each be deemed to be guilty of that offence:

Provided that no such person shall be guilty of an offence under this Law 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.”

After the accused-editor is “deemed to be guilty”, he can be acquitted only when he succeeds in proving his defence and not when he fails to prove his defence.

It is to be noted that Section 15 of the Press Council Law states that when a “statement or matter” is published in a newspaper “which will amount to defamation within the meaning of Section 479 of the Penal Code” the person who so publishes shall be guilty of an offence. And Section 14 of the same law stipulates that when an offence is committed (as described above) under Section 15 of the Press Council Law - the editor of the newspaper “shall be deemed to be guilty of that offence.” Thus, if an editor is “deemed to be guilty of that offence” even when the evidence, (as at the stage of the closure of the prosecution case) does not prove beyond a reasonable doubt that the offence of defamation had been committed - ( i.e. even when there is a reasonable doubt as to whether the publication “will amount to defamation” or not) then there is a real risk of an editor being convicted not because the prosecution has proved “to a moral certainty” that the publication of the “statement or matter” amounted to “defamation within the meaning of Section 479 of the Penal Code” but because the editor (who is the accused) had failed to “prove” the defences prescribed by the law. Proof “to a moral certainty” means proof beyond reasonable doubt.

And as pointed out above, the question whether the editor can be “deemed to be guilty” has to be decided as at the stage of the closure of the prosecution case (at which stage the “submission of no case to answer” was made in this case) and there is no question of acquitting the editor thereafter i.e. after the editor has been “deemed to be guilty” - unless he “proves” one of the two defences prescribed in the proviso of Section 14 of the Press Council Law which section is reproduced above.

In this context, it is worthy of mention that the accused-editor, as pointed out above, refused to disclose the name of the writer of the relevant excerpt. When one looks at the matter from the stand-point of common sense - it would have facilitated the “proof” of the fact that the publication in the provincial edition was without the accused’s knowledge, (which was what the accused had said more or less as an afterthought) had the accused disclosed the name of the writer of the excerpt - if, in fact, it was not he himself - and thus diverted the overwhelmingly strong impression, arising on the facts of this case, that the writer was none but the accused himself. It is to be emphasized that the accused had all along said in his evidence that he knew who the writer of the relevant excerpt was, although he (the accused) chose to persist in not disclosing the name. The nature of this case is such that prosecution cannot reasonably be expected to know the name of the writer - if, in fact, the accused was not the writer. Ease of proof, is no doubt, a factor in the enactment of statutory provisions as to the burden of proof and the law in its wisdom i.e. Section 14 of the Press Council Law, had clearly imposed the burden of “proving” (that the publication was without the knowledge of the editor) on the accused-editor himself. The legal concept of proof of a defence on a balance of probabilities must be applied with common sense. I had adverted at pages 20-145 of this Judgment to five matters which individually or, at any rate, cumulatively un-erringly point to the fact that the accused himself was the writer of the relevant excerpt and in this context it would be germane to quote an excerpt from a judgment of Abbot C.J. in R vs. Burdett (1820) 4 B. and ALD. 95 at page 161 which states thus:

“No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him....... but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends.” It is to be recalled that the accused-editor refused not only to disclose the name of writer but also to reveal even the sex of the writer.

As stated above as well, it would have been easier for the accused to have proved and it would, in fact, have facilitated proof of the fact that the publication was “without the knowledge” of the accused had the accused revealed the name of the writer, if in fact, the writer was not he (the accused-editor) himself - than when he, in fact, was the writer - which, in fact, in the state of the evidence in this case, is an intellectually compelling inference.

The learned President’s Counsel for the defence, in his oral submissions spanning or spread over the space of four months or more, submitted that count No. 01 and No. 02 are based on factually two separate grounds which cannot be integrated with each other and that there is “an inconsistency of facts alleged in the charges.” In other words, his submission was that the said two grounds are wholly irreconcilable and conflicting. The learned President’s Counsel submitted that count No. 01 was framed on the factual basis that the accused-editor himself (personally) was the “maker and publisher” of the relevant excerpt concerning Her Excellency whereas the count No. 02 was framed on the footing that somebody (else) other than the accused was the maker and publisher of the relevant excerpt. The learned President’s Counsel further submitted that the prosecution itself was in a state of doubt as to which of the two offences (referred to in counts No. 01 and 02 respectively) the accused was guilty. Inasmuch as the prosecution was in a doubt, so the counsel argued, in regard to both offences - the learned President’s Counsel submitted that the doubt besetting the PROSECUTION MUST NECESSARILY COMMUNICATE ITSELF TO THE MIND OF THE COURT. The learned President’s Counsel proceeded to argue that the very fact that the prosecutors had still not chosen to withdraw any one of the two counts (even after all the evidence had been let in or recorded) is final proof of the fact that the prosecution is still labouring under such a doubt in regard to the factual basis of both counts. (Vide also paragraph 06 of the written submissions dated 04.06.97). It may well be that the prosecution had not thought it necessary to withdraw either of the two counts because the prosecutors are now more confident than ever, that both counts would succeed on the totality of the evidence and not because the prosecution has a doubt in regard to both counts as argued by learned President’s counsel. Anyhow, the argument of the defence that the doubt in the mind of the prosecutors in regard to the two counts (assuming, of course, that there is such a doubt) ought to communicate itself into the mind or the decision of the court is equally untenable and even more fallacious - for the simple reason, that the question whether counts (in an any indictment - for that matter) had been proved beyond a reasonable doubt or not is not considered with reference to the state of mind of the prosecutors or that of the defence counsel but, solely with reference to the totality of the evidence in the case if for no other reason than that secrets of the mind of the living are even more inscrutable than those of the dead. The necessary corollary or the logical proposition that follows from the contention of the defence - viz., that the accused has to be acquitted on both counts when the prosecution itself is in a state of doubt in regard to them - is that the accused has to be convicted on both counts when the prosecution is in no such doubt - irrespective of the strength or state of the evidence. Furthermore, there is absolutely no contradiction between the two grounds on which the two counts are based as the defence sought to make out. The learned President’s counsel for the defence had submitted that count No. 02 was framed on the basis that somebody (else) other than the accused was the maker and publisher of the relevant excerpt. Nowhere in count No. 02 has it been stated that somebody else other than the accused was the maker and publisher of the relevant excerpt. To quote or to cite the wording or phraseology (which is preceded by the text of the relevant excerpt) in which count No. 02 is couched which is as follows: Of course, in count No. 02 it is stated thus:-

Which means “the person who so published.” The words i.e. “the person who so published” in all honesty - includes all and therefore includes the accused collectively and individually for it does not exclude the accused.

Part XII

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