026-NLR-NLR-V-56-K.-VAIKUNTHAVASAN-Appellant-and-THE-QUEEN-Respondent.pdf
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GRATIAEN J.— Vaikunthavaaan v. The Queen
1954Present: Gratiaen J. and Gunasekara J.K. VAIKUNTHAVASAN, Appellant, and THE QUEEN, Respondent
S. C. 63, with■ Application 422—D. C. (Criminal)
Colombo N. 1698/28641
Defamation—Charge of criminal defamation—Burden of proof—Newspapers Ordinance,a. 7—Penal Code, s. 470.
In a prosecution for criminal defamation ns definod by section 479 of tlioPonal Code, the burden is on tho Crown to establish inter alia :
that the accused mado or published the particular imputation com-
plained of;
that ho did so with tho requisite intention or knowledge.0
j^iPPEAL from a judgment of the District Court, Colombo.
S. Nadesan, with Izzadeen Mohamed, for the accused-appellant.
H. A. Wijemanne, Crown Counsel, with J. G. T. Weeraralne, CrownCounsel, for the Crown.
Cur. adv. wit.
February 2, 1954. Gratiaen J.—
This is an appeal against a conviction for defamation. The appellant,who was the printer and publisher of a weekly newspaper entitled the“People’s Voice”, was indicted before the District Court of Colombo withhaving defamed Mr. Allen Smith, the Auditor-General of Ceylon, bypublishing in Colombo in an issue of the “People’s Voice” of 30th May,1952, an article containing a serious imputation on the integrity ofMr. Smith. The words complained of are grossly defamatory, and, if theconviction was justified, the fine of Rs. 250 imposed on the appellant wasquite inadequate.
It was proved against the appellant that he was registered at therelevant date under the Newspapers Ordinance as the printer andpublisher in Colombo of the “ People’s Voice ”. He gave evidence,however, in his defence, and explained that he had in fact been absentin Jaffna almost continuously during the months of April and May, 1952,in promoting his own candidature and the candidature of other personsat the Parliamentary elections. He started that he had made arrangementsfor the newspaper to be edited and published during his absence bysomeone else, and that he was quite unaware of the publication of theparticular article referred to in the indictment until he returned toColombo after the newspaper of. 30th May, 1952, had gone out incirculation.
The learned District Judge accepted the evidence that the appellanthad been absent from Colombo almost continuously during tho monthsof April and May, 1952. Nevertheless, the learned Judgo stated that hewas “ not at all satisfied with the evidence given by tho accused that he
GRATIAEN J.— YuikutUhavasan r. The Queen
103
was not privy to the publication of this particular newspaper On thisbasis, the learned Judge proceeded to hold “ that the accused was theprinter and publisher of the (defamatory) statement in question, and thathe was guilty of the charge laid against him
It is unnecessary to analyse in detail the process of reasoning by whichthe learned Judge took the view that the commission of the offence hadbeen brought home to the accused. Shortly stated, he assumed that, uponproof that a defamatory statement appeared in a newspaper of whiclian accused person was registered under the Newspapers Ordinance as itsprinter and publisher, the burden shifted to the defence to satisfy thot’ourt that ho was not criminally responsible for the publication of thatstatement. This assumption was based upon a suggested interpretationof section 7 of the Newspapers Ordinance which I am quite unable toaccept.
In a prosecution for criminal defamation as defined by section 479 ofthe Penal Code, the burden is on the Crown to establish inter alia :
that the accused made or published the particular imputation
complained of;
that he did so with the requisite intention or knowledge.
If the defamatory imputation complained of appears in a newspaperof which the accused person was registered as its printer and publisher,section 7 of the Ordinance declares that the prosecution will have dis-charged the onus of establishing the fact of ‘publication of the newspaper(and all its contents) by proving in evidence :
either (a) ji copy of the particular newspaper in question dulysigned by the accused person (as printer or publisher)jind delivered to the Registrar-General (or GovernmentAgent) as required by section 7
or (/<) an unsigned copy corresponding to the authenticated copy” signed and delivered as aforesaid ”.
In tho former case, the proof of publication is irrebuttable, but in thelatter case, the burden shifts to the accused to show that the unauthenti-cated copy ” was not printed or published by him nor with his knowledgeor privity ”. In either case, however, the Ordinance raises no statutorypresumptions as to the intention with which any particular statementcontained in the newspaper had been published.
In the present case, the accused admittedly delivered to the Kegistrar-(tenoral, after he returned to Colombo from Jaffna, a signed copy of thonewspaper containing the offending article. The fact of publication wastherefore clearly established against him, but this by itself does notconclusively prove the other essential ingredients of the offence ofdefamation. It was necessary for the prosecution also to prove that thepublication liatl been made with tho requisite intention or knowledgespecified in section 479. To this distinct and separate issue the judgmentunder appeal makes no reference, and is vitiated by the erroneousassumption that, as a matter of law, the burden had shifted to thoappellant to satisfy the Court of his innocence.
There is an important difference between the offence of criminal libeltinder the English common law and the offence of defamation defined bysection 479 of the Penal Code of Ceylon. In England, the common lawpenalises not only a person who intentionally defames another but alsoa newspaper vendor who is an unconscious instrument in circulatinglibellous matter, or an innocent newspaper proprietor whose editor has(without the proprietor’s privity or knowledge) defamed a third party.—Jt. v. Holbrook 1, Emmens v. Pottlz 2. In other words, criminal liabilitydepends not on the intention of the defamer but on the fact of publication.In order to mitigate to some extent the rigours of this rule, a remedialAct was passed (6 and 7 Viet. c. 96) whereby an accused person who wasprima facie vicariously liable for criminal libel could secure his acquittalby proving that the publication was not authorised by him and thatlie had not acted without due care and attention. The burden of bringinghimself within this statutory exception is on the accused person.
In Ceylon, however, section 479 of the Penal Code makes the requisitecriminal intention or knowledge an additional ingredient of the offenceof defamation, and the burden of proving that ingredient remainsthroughout on the prosecution. No doubt the bare fact of publication,especially if it be unexplained, is an item of evidence to be taken intoaccount on the issue of intention in the facts of a given case, and thepresumption that a man intends the natural and probable consequencesof his intentional acts may properly but cautiously be applied in a pro-secution for defamation in particular instances. This presumption,however, is not a rule of law which a Court is bound to apply in everysituation. Indeed, it does not arise at all unless the evidence justifies theinference that the prisoner had directly published the imputationcomplained of or knowingly authorised its publication.
There is no justification in Ceylon for casting upon a person chargedwith defamation the onus of negativing criminal intention, and thecorrect rule to be applied, mutatis mutandis, by a judge trying a casewithout a jury in such cases has been laid down in R. v. Steane 3 :
“ If the prosecution proves an act the natural consequences of whichwould bo a certain result, and no evidence or explanation is given,then a jury may on a proper direction find that the prisoner is guiltyof doing the act with the intent alleged, but if, on the totality of theevidence there is room for more than one view as to the intent of theprisoner, the jury should be directed that it is for the prosecution toprove the intent to the jury’s satisfaction, and if, on a review of thewhole evidence, they either think that the intent did not exist, or theyare left in doubt as to the intent, the prisoner is entitled to be .acquitted. ”
The judgment under appeal is vitiated by misdirection because the issuoof criminal intent has not been examined by the learned Judge withdue regard to the burden of proof which remained throughout on theprosecution. Having regard particularly to the finding that the appellantwas not in Colombo at the time of publication, it is not possible to say
* (1877) 3 Q. B. D. 60 and (1878) 4 Q. B. D. 42.a (1883) 16 Q. B. D. 351.
3 (1947) K. B. 997.
QRATIAEN J.— Vaikunthavasan v. The Queen
104
Gunatilleke v. Fernando
105
that, if the learned Judge had properly directed- himself on this issue,he could not reasonably have entertained a doubt as to whether thisingredient of the offence had been established by the prosecution. I wouldtherefore quash the conviction and make order acquitting the appellant.In the result, the foundation of the application of the Crown to have thosentence enhanced has disappeared. The application in revision mustaccordingly be refused.
Gunasekara J.—I agree.
Appeal allowed.