017-NLR-NLR-V-40-JAYASINGHE-v.-WIJESINGHE–et-al.pdf
68
Jayasinghe v. Wijesinghe.
1938
Present : Koch J.
JAYASINGHE v. WIJESINGHE et al.
In the Matter of a Rule under Section 51 of the CourtsOrdinance, No. 1 of 1889, for Contempt of Court.
Contempt of court—Death of person caused by driver of car—Verdict of Coroneragainst driver—Driver on remand—Notice of meeting convened toconsider the matter of the “ murder ’’—Prejudice to fair trial—CourtsOrdinance s. 51.
The petitioner, who was driving a car, ran over and killed C, who was•one of a hostile crowd which attempted to obstruct the passage of the carat a junction.
At the inquest the Coroner was of opinion that the petitioner wilfully■ ran over and caused the death of C.
' The petitioner was thereupon produced before the Court by the PoliceInspector and remanded pending further investigation:
Meanwhile, the respondent published leaflets, summoning a meetingto consider the conduct of the Inspector of Police “ in the matter of themurder of C
Held, that .the publication of the leaflets was calculated to prejudicethe fair trial of the petitioner and amounted to contempt of court.
KOCH J.—Jayasinghe v. Wijeysinghe.
T
HIS was an application for a rule on the respondents to show causewhy they should not be dealt with under section 51 of the Courts
Ordinance for contempt of court.
H. V. Perera, K.C. (with him Sri Nissanka), for petitioner.
F. A. Hay ley, K.C. (with him Colvin R. de Silva), for respondents.
Cur. adv. wit.
July 8, 1938. Koch J.—
On the application of the petitioner, one P. de S. Jayasinghe, a rule wasissued by this Court on the four respondents to show cause why theyshould not be dealt with under section 51 of the Courts’ Ordinance, No. 1of 1889, for having committed the offence of* contempt of court, indisrespect of the authority of this Court, by the publication of a noticewhich, it was alleged, was done while criminal proceedings were pendingagainst the petitioner, and which would seriously prejudice the petitionerin his defence and trial. The respondents have appeared and showncause.
The notice referred to was a printed announcement in a leaflet marked“ A ” that a public meeting would be held at the Young Men’s BiddhistAssociation hall, Nugegoda, uhder the presidentship of Mr. A. E. Goone-sinha, Member of the State Council, to consider the conduct of PoliceInspector W. W. Fonseka in the matter of the murder of the late Mr. M.Abraham Costa and to take such action as the meeting might decide.The four respondents are signatories to this notice. The notice was inboth Sinhalese and English, and it would' appear that what was statedin English was for all practical purposes the same as the Sinhaleseversion.
The circumstances connected with the publication of the notice asgathered from the petition and affidavit are briefly that the petitioner’sbrother was grievously assaulted by one Abraham Costa and a prose-cution against Costa >was pending when, on January 14, 1938, thepetitioner, who was driving home with his father and one Stephen Pereraafter having dropped Albert Perera at Nugegoda, met a hostile, armedcrowd at Kohuwela junction. Abraham Costa was one of the crowd.When the crowd attempted to obstruct the passage of the car, the peti-tioner drove through and knocked down Abraham Costa and another.The petitioner came straight home and, having dropped his father andStephen Perera to guard his house as he feared an attack, he proceededimmediately to the Police Station and lodged a complaint. On thefollowing day Abraham Costa died as a result of the injuries he hadreceived. On January 16, the Coroner held an inquest and was of opinionthat the petitioner had wilfully run over Abraham Costa and caused hisdeath.
Police Inspector Fonseka, thereupon, produced the petitioner before.Court and moved that he be remanded till the 18th pending investigations,and on the 18th moved for a further remand till the 25th. In the mean-time, on January 22, leaflets-similar to that marked “ A ” were broadcastthroughout Colombo.
70
KOCH J.—Jayasinghe v. Wijeysinghe.
The words in the notice to which exception is taken are: “ In the matterof the murder of Mr. M. Abraham Costa
The petitioner maintains that these words indicate that a murder hadactually been committed, and were published at a time when the caseagainst him was sub judice and when the issue as to whether a murderhad been committed or not was still undecided, and that the respondents,who are responsible for the publication of these leaflets, have by this actseriously prejudiced his defence and trial.
The question for decision is whether the petitioner is likely to beprejudicially affected in his trial by the publication of these leaflets, andif so, whether such a contempt of this Court has been committed as tojustify the Court in taking cognisance of it and punishing the respondents.
It is contended on behalf of the respondents that the notice was inrespect of a meeting to be convened to consider the conduct of a PoliceInspector in connection with an incident, and in referring to that incidentthe word “ murder ” was used not with the object of stressing the factthat a wilful murder had been committed but merely as a description ofthat incident; that it was an unfortunate word to use; and that therespondents meant nothing more than that at the meeting the conductof the Police Inspector was to be considered in connection with an incidentwhich resulted in the death of Abraham Costa.
Four affidavits, one from each of the respondents, and all to the same'effect, have been tendered. In these affidavits, it is stated that InspectorFonseka came to the scene, left a constable to make inquiries and thatAbraham Costa was not taken to hospital till two hours later although hewas seriously injured; and that the meeting was called to protest againstthis conduct on the part of the Inspector and not in any way to prejudicethe issue in the case against the petitioner. In support, the two resolu-tions passed at the meeting are quoted, and it is stressed that theseresolutions show that the conduct of the Inspector was seriously censuredin connection with the circumstances attending the death of AbrahamCosta; that there is not the slightest reference to a murder having beencommitted; that in fact at the meeting the Chairman explained that-theword “murder” had been inadvertently used in the leaflets; and that nosuch suggestion was intended. It was strongly pressed that the name ofthe petitioner does not appear in the notice and that this fact too went toshow that there was ho intention to prejudice him in any way.
Mr. Hayley cited the case of Hunt v. Clarke In that case there wasa publication of certain observations by a newspaper in connection witha civil action which was pending. Mr. Hayley referred to a passage inCotton L. J. ’s judgment where he says, that if in his opinion the publicationwas wilfully done and that if such publication would really prejudice theparties, he would not hesitate to commit the offender to prison, and thatthe jurisdiction of the Court was only to be exercied in extreme cases.But the learned Judge also says that if such publication would tend inany way to prejudice the parties in the case, it may be that whoever isguilty of the act would be liable to be committed. The learned Judgegoes on further to say that the observation may be of such a character as
1 68 Lata Journal Q. B. D. 490.
KOCH J.—Jayasinghe v. Wijeysinghe.
71
to amount to a technical contempt, but even in that case they may besuch that a Court ought to interfere. He also said that although it is notnecessary that the Court should come to the conclusion that a Judge ora Jury would be prejudiced, yet, if it is calculated to prejudice the propertrial of a cause, that is a contempt and should be punished. He finallyexpresses the view that if the offence is of a slight and trifling nature andnot likely to cause any substantial prejudice to a party or to the dueadministration of justice, the party ought not to apply.
This view was adopted by Lord Russell in The Queen v. Payan andCooper1. Here the case pending was a criminal one, the charge being oneof arson. Wright J. added his opinion that to justify an application,the publication complained of must be calculated really to interfere witha fair trial, and secondly, if this is so, the next point is whether under thecircumstances the jurisdiction of the Court to punish for contempt shouldbe exercised.
Mr. Perera for the petitioner cited the case of The King v. Parke =, andcontended that although the principle may be the same whether the casepending was civil or criminal, the Court will more readly exercise itsjurisdiction when the proceedings pending are of a criminal nature. Hiealso cited the two local cases of Abdul Wahab v. A. J. Perera and othersand The Attorney-General v. De Mel Laxapathy These were bothflagrant cases of contempt and no attempt was made by the respondentsto justify their act. In the notice which was complained of (it was the-same in both cases), it was stated that a serious and frightful crime hadbeen committed by the person against whom criminal proceedings werepending—referring to him by name. Although the Divisional Benchbefore whom both these cases came up were of opinion that the respond-ents did not act with deliberate malice against the accused and thatthey did not really intend to prejudice a fair trial, nevertheless thepublication was calculated to influence a Jury who may be deterred fromdoing their duty by a knowledge that in the minds of the people of thedistrict the crime had actually been committed by the accused person,and would perhaps also influence the witnesses for the prosecution andthe defence in different ways.
In the result, I think that if the * publication, taken in connection withthe circumstances of the case, is such that it tends or is calculated toprejudice the petitioner in obtaining a fair and impartial trial, the Courtought to interfere and punish the offender whether there was any intentionto so prejudice the petitioner or not; but if, in the circumstances, theoffence is of such slight and trivial a character as to amount to a com-mission of a technical contempt only, and if the petitioner is not likely tobe prejudiced in his trial, the Court will not interfere.
Now, it is true that the name of the petitioner does not appear in thenotice convening the meeting, and it may be that the word “ murder ”was not used intentionally, but the use of that word in the notice for whichthe respondents were responsible was bound to create the impression thatthe person charged or who would be charged was guilty^of wilfully killingAbraham Costa, and thus prejudice that person in obtaining a fair trial.
« (1896) 1 Q. B. D. 577.* 6 C. L. W. 130.
* (1903) 2 K. B. D. 432.*6 C. L. W. 146.
72
KOCK J.—Jayasinghe v. Wijeysinghe.
The fact that at the meeting the word “ murder ” was studiously avoidedin reference to the incident is irrelevant. The offence of contempt wascommitted' when the leaflets were distributed. Besides many of thereaders of these leaflets may not have been present at the meeting.
I am of opinion that the respondents are guilty of having committed acontempt of this Court by interfereing with the due administration ofjustice.
In passing' sentence, I have taken into consideration all the points thathave been urged in their favour, and also the fact that they haveapologized to this Court for any prejudice that their act may have caused.
I sentence each of the respondents to pay a fine of Rs. 100, in default toundergo one month’s simple imprisonment.
Rule made absolute.