( 318 )
Present: Branch C.J. and Garvin J.
LEISA v. SIYATUHAMY.
171—D. C. Regalia, 6,600.
Defamation—Statement made in course of proceedings in answer toMagistrate—Privilege.
An unsworn statement made by a headman, in the course ofproceedings before a Police Magistrate, in answer to questions putby the Magistrate is absolutely privileged.
CTION for defamation brought against the defendant, a village
headman, by the plaintiff, a resident of his wasama. It wasbased upon a statement made by the defendant, in answer to thePolice Magistrate, in the course of a case in which the plaintiffcharged certain persons with assaulting and robbing her. Duringthe course of the proceedings in the Police Court the plaintiff wascross-examined as to her moral character, and when objection wastaken to these questions, on the ground that there was no foundationfor the allegations, it was suggested to the Magistrate that thedefendant should be called and questioned on the point. While theplaintiff was in the witness box.the defendant was summoned intocourt, and in answer to a question stated that “ the plaintiff’s houseis a house of prostitutes.” The learned District Judge held, thatthe defendant made the statement, without sufficient ground ormaterial, and awarded the plaintiff fifty rupees as damages.
Drieberg, K.C. (with him H.V. Perera), for defendant, appellant.—The learned Judge was wrong in thinking the statement was notprivileged. In Silva v. Balasuriya1 the court only considered thecase of a witness making a statement in the witness box. It didnot consider at alL the case of a statement not made on oath oraffirmation. Generally speaking, privilege is extended not becauseit is sworn testimony but on grounds of public policy.
Privilege is extended to judges, counsel, witnesses, and parties.(Royal Aquarium and Winter Garden Society v. Parkinson.-)
Privilege extended to witness in witness box is extended to thepreliminary statement made by him to his solicitor before trial.(Watson v. J. M’Ewanz).
In Wijeygoonetileke v. John Appu4 privilege was extended tostatements other than those on sworn testimony.
1 (1911) UN. L. if. 452.
* (18m 1 Q. B, (at page 451).
» (1905) A. C. 480.
4 (1920) 22 N. L. X. 231.
( 31f> )
Statements made to Folioe Office under Chapter XII., CriminalProoedure Code, are privileged.
Seotion 185, Evidence Act, allows Judges to ask questions fromwitnesses. There is no irregularity in it. This is also allowed byseotion 429, Criminal Prooedure Code.
Even if it is qualified privilege, express malice must be proved tosupport a olaim for defamation, Fernando t>. Petri*.1
F. J. Soertez (with him Ranawake), for plaintiff, respondent.—Noprivilege is available here. This benefit is available only if he is awitness in the oase and the testimony is on oath (Odgers on Libeland Slander, 4th Edition, page 227) / Trotman v. Dunn.3
The faots show that the statement was irrelevant, and malice istherefore present.
Deoember 15, 1925. Branch O.J.—
The faots of this case are shortly as follows:—The defendant,Siyathuhamy, is a village headman, and is the Gan-Arachchi ofEturupotha wasama, and the plaintiff is a resident of that wasama.In August, 1923, the plaintiff wob the oomplainant in a Police Courtcase in whioh certain persons were charged with assaulting androbbing her. The defendant, in his capaoity as village headman,had made the usual report as to the offence, and came to the court-house on the day of the trial. He had not been summoned as awitness, but his evidenoe is that he was asked by the Police to cometo court and give evidence for the prosecution. The learned DistrictJudge thinks he oame to the oourt as a spectator merely. Duringthe course of the case the plaintiff was cross-examined as to hermoral character, and when objection was taken by her proctor tothese questions, on the ground that there was no foundation for theallegation, it was suggested to the Magistrate who tried thecase—presumably by the proctor for the accused persons—thatSiyathuhamy should be called and questioned on the point. TheMagistrate consented and while the plaintiff was in the witness boxSiyathuhamy was sent for and questioned either by the Magistrateor by the proctor for the accused persons, with the Magistrate'sconsent, as to the moral character of the complainant, namely, thepresent plaintiff-respondent. The Magistrate’s note is as follows :—4< The headman present states that complainant’s house is a pros-titute's house." The headman, namely, the defendant-appellant,was not sworn, and he made his statement from the body of thecourt. The present plaintiff-respondent brought an action fordefamation of character against Siyathuhamy, and the learnedDistrict Judge has found that the statement above set out wasmade by Siyathuhamy, be knowing very well he had not sufficientgrounds or materials for the making of such reckless statements.The' trial Judge further held that the statement was not privileged,and he awarded damages to the plaintiff.
1 (1W0) 21 N. L ff. 7.* 4 Camp. 2It.
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It was held in Silva v. Balasuriya (supra) that the question as tothe protection offered by law to a witness is governed by the Lawof England and not by the Roman-Dutch Law.
At English Law the statements made by a witness in the courseof proceedings before a Court of Justice are absolutely privileged, andno action can be brought against him in respect of such evidencegiven by him, even if it be false and malicious. The ground of thatrule is public policy. The rule was established not for the benefitof witnesses but for that of the public, and the advancement of theadministration of justice.
The evidence given by Siyathuhamy comes, I think, within thatrule. I do not think that the fact that he was not examined on oathor affirmation, and that he did not enter the witness box, and thathe cannot be prosecuted for perjury disentitles him to the protectionwhich would otherwise be his. I think he enjoys the immunity,which he would have enjoyed had he been summoned as a witnessand put into the witness box and either sworn or affirmed.
No case directly in point was cited but counsel for the defendant-appellant referred to Watson v, M'Ewan.1 In that case the appellantappeared before a solicitor at, what is c&Ued in Scottish Law, his“ precognition ”—what is called in English Law, the interviewbetween the intended witness and the solicitor who takes from himthe “ proof ”—namely, reduces to writing the evidence whichthe witness will give in the pending suit. It was held that thepreliminary examination of a witness by a solicitor is within thesame privilege as that which he would have if he had said the samething in his sworn testimony in court. The fact, therefore, that theauthor of such a statement cannot be indicted for perjury is not anessential element. Watson v, M'Ewan (supra) goes further thanWijegunatileke v. Joni Appu.2 In the latter case the statement wasmade during the course of an investigation under Chapter XII. of theCriminal Procedure Code, and this was held to be a privilegedoccasion.
The true ground for the immunity enjoyed by a person makingstatements in a Court of Law is the overwhelming considerationthat protection is necessary on the ground of public policy, and anintolerable burden would, I think, be laid upon a witness if he hadto determine before he made answer, whether the question put to himwas relevant to the issue, whether he was making his statement fromthe ordinary place appointed for witnesses, and whether he had beenproperly sworn. In this case the headman had really no option inthe matter. The Magistrate had directed him to attend and hewas required to give answer to the questions put to him as to themoral character of the plaintiff and his statement was not dehorsthe character of witness.
I would allow the appeal, with costs-.
Appeal allowed.a (1920) 22 N. L. R. 232.
1 (1905) A. C. 480.