R. VEERASAMY v. STEWART et al

120-NLR-NLR-V-42-R.-VEERASAMY-v.-STEWART-et-al.pdf


Veerasamy v. Stewart.
481
1941
Present: Soertsz J.
R. VEERASAMY v. STEWART et al.
In the Matter of a Contempt of the Authority of the SupremeCourt in respect of non-summary proceedings in M. C,Gampola, No. 2,172
Contempt of Court—Publication of editorials and articles on pending case—Articles calculated to prejudice the fair trial of the petitioner—Intent notan essential ingredient of offence—Courts Ordinance, s. 47.
Where the editor and the publisher of a newspaper were charged withcontempt of the authority of the Supreme Court in respect of certaineditorials, letters and report of a speech, appearing in the newspaper andreferring to non-summary proceedings in a Magistrate’s Court in whichthe petitioner was charged with murder—which said publications werecalculated to prejudice the fair hearing of the case before the SupremeCourt,—
Held, that it was not essential to establish that the respondents intendedto prejudice the fair trial of the petitioner or to interfere with the course oljustice. It would be sufficient if the effect of the publications complainedof was to create prejudice or to interfere with the due course of justice.
HIS was a rule issued against the respondents, the Editor and the
X Publisher of the Times of Ceylon, to show cause why they shouldnot be dealt with under section 47 of the Courts Ordinance for Contemptof the Authority of the Supreme Court.
N. Nadarajah, for the respondents.—A rule for contempt would lieonly in a case where comments have been made pending an investigation,directly affecting the accused person and connecting him with thecommission of the offence. In the present case it cannot be said that thepublications in question directly or by necessary inference prejudice thepetitioner by implicating him personally. The leading cases on thesubject areR. v. Parke'; R. v. Tibbits ~; R. v. Davies What is merely“ technically ” contempt is not sufficient; the power which this Courtpossesses is one which ought to be exercised only in cases of real contempt(Reg. v. Payne and Cooper'; Gaskell and Chambers, Ltd. v. Hudson,Dodsworth & Co.°). See also Oswald on Contempt of Court (1910),pp. 94-95.
S. Nadesan (with him P. de Silva and H. Jayawardene), for thepetitioner.—The comments made in the articles are of such a character asto create an atmosphere of prejudice against the accused and affect a fairtrial. It is not necessary that the comments should make direct reference tothe subject-matter of the case. A case exactly in point is Superintendentof Legal Affairs, Behar v. Murali Manohar “. See also Higgins v. RichardsT;R. v. Editor, Printers and Publishers of the Daily Herald Ex Parte Rouse *;
> (1903) 2 K. B. 432.‘ (1936) 2 K. B. 595 at 601.
• (1902) 1 K. B. 77.• (1941) 42 Cr. L. Jnl. 225.
3 (1906) 1 K. B. 32.»11912)28 T.L.R.202.
‘ (1896) 1 Q. B. 577.• (1931) 75 Sol. Jnl. 119.
21—XLH.
ieJ. N. B 17628 (5/52)
T
482
SOERTSZ J.—Veerasamy v. Stewart.
R. v. Editor, Printers and Publishers of the Evening Standard : Ex parteDirector of Public Prosecutions1 R. v. Hutchinson et al.: Ex parteMahon *.
N. Nadarajah replied.
Cur. adv. vult.
August 5, 1941. Soertsz J.—
This case affords an illustration of what, I believe, has been theexperience of nearly every one of us, that we have slipped into sayingthings we did not intend, or that we have said more or less than we meant.
A perusal of the publications in question in this case in the light of theaverments in the affidavits of the respondents which I accept, and of the. submissions of their Counsel, has satisfied me that in publishing thesearticles it was not the purpose of the respondents to prejudice thepetitioner and his co-accused, or to interfere with the course of justice.
But, unfortunately for the respondents, that is not an end of the matter.As Harris C.J. said in the case of Superintendent of Legal Affairs,Behar v. Murali Manohar (supra),
“It has been frequently laid down that no intent to interfere withthe due course of justice, or to prejudice the public need be establishedif the effect of the article or articles complained of is to create prejudice,or is to interfere with the due course of justice.”
In regard to the precise meaning of the words ‘ if the effect is to createprejudice or to interfere ’, numerous judgments have established the rulethat—
“ the question in every case is not whether the publication in factinterferes, but whether it tends to interfere with the due course ofjustice”, (e.g., Vide Metropolitan Music Hall v. Lake’; In re Cornish,Staff v. Gill *.)
^ Therefore, in view of my finding that the respondents did not intend tointerfere with the course of justice, it is sufficient for me to address myselfto the question whether these publications tend to prejudice the petitionerand the other accused, by interfering with their right to a fair and impartialtrial.
In taking, up this question, I must, of course, bear in mind that thesummary jurisdiction to punish for contempt of Court must not beexercised in regard to matters which can, if at all, be said to tend toprejudice or interfere with parties or the course of justice only in someremote or far-fetched manner. It has been observed that—
“ Courts should not be astute to exercise this summary power topunish contempts of a technical kind.”
In the case of Gaskell and Chambers, Ltd.’ Lord Hewart C.J.said—
“ I should wish to refer to the words used forty years ago by LordRussell C.J., which, with respect, seem to me to be no less true to-daythan they were then. He said in the case of Reg. v. Payne & Cooper'.
1 (.1924) 40 T. L. R. 833 at836.' (1894) 9 T. L. R. 196.
3 (1936) A. B.R. 1514.5 (1936) 2 K. B. 595.
3 (1889) 58 L. J. Ch. 513.* (1896) 1 Q. B. 77.
SOERTSZ J.—Veerasamy v. Stewart.
483
• 1 wish to express the view I entertain that applications of this naturehave, in many cases, gone too far. No doubt, the power which theCourt possesses in such cases is a salutary power and it ought to beexercised in cases where there is a real contempt but only when there areserious grounds for its exercise …. The applicant must showthat something has been published which is either clearly intended or,at least, is calculated to prejudice a trial that is pendingIf I may analyse this dictum, the conditions laid down in it for theexercise of this jurisdiction appear to be: — (a) a pending trial; (b) apublication intended or calculated to prejudice that trial.
In this case, when the first editorial of May 10, 1941, was published,two accused persons, other than the petitioner, had been arrested andproduced before the Magistrate, and proceedings had commenced. Thepetitioner himself was arrested and produced before the Magistrate onMay 11, 1941, and there can be no question but that the respondents,whatever their state of knowledge on May 10, were well aware of thepending case when the other editorials, the letters and the speech werepublished. So that the first condition stated above is satisfied.
In regard to the second condition, I have observed already that I amsatisfied that the respondents did not intend to prejudice the accused byinterfering with their right to a fair trial. The sole question that remainsis whether these publications are calculated to prejudice the accused in thatway. Commenting on this phrase * calculated to prejudice ’, in thecase of R. v. Tibbits Lord Alverstone C.J. said : —
“ The essence of the offence is conduct calculated to produce, so tospeak, an atmosphere of prejudice in the midst of which the proceedingsmust go on.”
For a proper consideration of the question whether this second conditionis satisfied, an examination of the articles complained of is necessary.First, there is the editorial of May 10. The title is “ The Murder ofMr. Pope ”. The opening paragraph is in these terms : —
“ The dastardly murder of Mr. C. A. G. Pope in circumstances ofpeculiar barbarity introduces a new element into the labour agitationthat has been going on some time Up-country. There is no reason todoubt that the disaffected elements are connected with this murder.What precisely they hope to gain by assassination it is difficult to see.”
Further down, occurs this passage: —
“ Strikes occur, but if this murder is to be regarded as a sign of thetimes, the retort now takes the form of assassination. The murder ofMr. Pope is a challenge in more ways. than one. It is a challenge toIndian leadership in Ceylon. Whatever sympathy the Indianleaders may have for their humbler brethren on the estates, they couldhave no sympathy with murder, and murder moreover of this cruel andcowardly type.”
Petitioner’s Counsel took, strong exception to the use of the words“ murder ”, “assassination ”, “ dastardly murder in circumstances ofpeculiar barbarity ”, “ murder moreover of this cruel and cowardly type
1 (1902) l K. B. 77.
484
SOERTSZ J.—Veerasamy v. Stewart.
He contended that one of the questions for decision by the proper tribunalwould be whether the offence of the culprits, whoever they might be, wasthe offence of murder or some lesser offence and, here we find the editorprejudging the case and giving expression to his opinion that the offencewas “ murder ”, “ assassination ”, “ dastardly murder ” “ murder of acruel and cowardly type Commenting on similar remarks made by anewspaper in regard to a case in Dinapure, Harris C.J. said: —
“In this article the facts of the case are stated without any qualifi-cation, and anybody reading the article would be bound to come to theconclusion that the assault committed on this young Indian was abrutal assadlt committed without any justification of any kind. Whe-ther it was so or not is a matter which a jury will have to decide.No one has a right to prejudge the case and to state what he regards tobe thetrue facts whilst the case is pending.”
It may well be that when the true facts are known these descriptions mayfit the crime, but the use of these expressions at this stage is calculatedto prejudice the accused in regard to the charge preferred againstthem.
In his affidavit, the first respondent states in paragraph 8: —
“in using the word ‘murder’ , …. I meant to convey themeaning attached to the word in ordinary parlance, to wit :—to killwickedly, inhumanly or barbarously (Please see Oxford DictionaryVol. VI., p. 770), and did not precisely intend to convey the meaningattached to it under the Ceylon Penal Code. A newspaper has to usethe English language as understood by the layman and not the legalphraseology of the Courts and their niceties of interpretations accordingto law.”
I fully appreciate this, and I should not have been disposed to takeserious notice of the petitioner’s complaint if it related only to the use ofthe word “ murder ”, and if that word occurred in this first editorial only,for I allow that .to drive journalists to so meticulous a search of the motjuste would result in their being very much behind the times with theirnews, and would add another terror to lives already much “beset withpitfall and with gin ”. But the difficulty here is the insistence upon thefact that the offence is murder. Not only is there the reiteration of thisfact in the editorial of May 10, but in the next editorial on May 14, thematter is taken a stage further and the offence is described as the“ dastardly and premeditated murder ” and when we come to the speechof Mr. Lloyd Jones on June 9, 1941, we find him stating “ For here is anindisputable jact—murder, no less It is true that Mr. Lloyd Jones pre-1 faced his remarks by saying : —
“ no comment is, of course, permissible on the case against thoseaccused of the murder of Mr. Pope arising out of his actions in theordinary course of his duties. The case is before the Courts and westill have the greatest respect of our Supreme Court ”,but that is of no more avail than was a similar statement of the Editor inMurali Manohar’s Case (supra) to the effect that: —
“ we have no desire to offer any comments on the merits of the case nowbeing heard at Dinapure except to emphasise that the incident hashorrified the entire province.”
SOERTSZ J.—Veerasamy v. Stewart.
485
It was held that to say that the “ incident has horrified the whole province’’“must prejudice the person who is now standing his trial as a result oithis incidentAt first sight this observation may appear to go too far,but it must be understood with reference to the whole article.
In the case of R. v. Editor, Printers and Publishers of the Daily Herald :Ex parte Rouse' the facts were that while Rouse stood committed fortrial on a charge of murdering an unknown man in a motor car whichwas found burned out, the respondents published a poster containingthe words •' Another blazing car murder That poster related toanother case in which, it was alleged, a young woman was found dead ina blazing motor car, and Lord Hewart C.J. in the course of making theRule absolute said: —
“ The words ‘ another murder ’ might well seem to suggest that the caseon which Rouse was to be tried was a case of murder. That was thevery issue which the jury would have to try.”
In Rouse’s case the question was whether the death of the deceasedwas the result of an accident, or due to violence. In the present case, sofar as it is possible to see, there is no question of accident, but that is adifference only in degree, not in kind. It is possible—we cannot say—that the question may arise whether the offence is murder or a lesseroffence. As Hewart L.C.J. observed in another case, that of R. v. Editor,Printers and Publishers of the Evening Standard : Ex parte Director ofPublic Prosecutions ': —
“It is not possible even for the most ingenious mind to anticipatewith certainty what are to be the real issues, to say nothing of the moredifficult question what is to be the relative importance of differentissues in a trial which is about to take place.”
The decision in Rouse’s case is a striking instance of the anxiety of the lawto see that no prejudice is likely to be caused to accused persons awaitingtrial.
The second ground upon which the petitioner based his complaint isthat in the editorial of May 10, it was stated that: —
“ there is no reason to doubt that the disaffected elements ” of labouragitation “ are connected with this murder.”
And in the editorial of May 14, that: —
“ There has been ample evidence for some time past of the utter lackof responsibility possessed by Labour Unions who, professedly, comeinto existence to better the lot of the estate labourer. It is a well knownfact that the vast majority of their office-bearers on estates areselected from the more rowdy elements for the excellent reason that theaverage decent labourer flatly refuses to associate himself with suchactivities …. Mr. Pope’s murder was the direct result ofthis state of affairs . . . The trouble upon his estate appears tolhave originated with the perfectly lawful dismissal of a prominentmember of a Labour Union. Had there been no unchecked encourage-ment of defiance of law and order, Mr. Pope would have been alive
to-day.”
1 75 Sol. Jill. 119.
(1924) 40 T. L. R. 833 at 836.
486
SOERTSZ J.—Veerasamy v. Stewart.
The petitioner says that he and the other accused, are members of aLabour Union, and that they will be prejudiced by statements to theeffect that there is no reason to doubt that the disaffected elements oflabour are connected with the murder, that the murder arose from thedismissal of a prominent member of a Labour Union, &c. Counselcontends that even if these statements do not definitely convey the mean-ing that the accused are the culprits, they are, at least, calculated toinvolve them in suspicion. It is impossible to deny that there ismuch force in this contention.' Again it may well be, that when thetrue facts are ascertained by the proper tribunal, these statements mayprove to be correct, but to say all this at this stage when the case is dueto be tried is calculated to prejudice the accused. It must be borne inmind that this case is going to be tried by a Judge and a Jury. TheTimes Newspaper enjoys a great reputation and has a wide circulationin the country, and one may safely assume that most of the Jurors whowill come to try this case have read these articles, and they, probably,read them as newspapers are read, except by the very leisured classes,hurriedly, without critical or logical examination, and taking almosteverything for granted.
No one desires to fetter unduly the freedom of the Press, least of allCourts of Law, for the Press can be, and has often been a powerful allyin the administration of Justice, but it is essential that judicial tribunalsshould be able to do their work free from bias or partiality and that theright .of accused persons to a fair trial should be absolutely unimpaired.Lord Reading C.J. said in R. v. Empire News Ltd.1:
“ The Courts should not permit the investigation of murder to betaken out of the hands of the proper authorities. The liberty of theindividual even when he is suspected of crime, and indeed even moreso when he is charged with crime, must be protected, and it is thefunction of Courts to prevent the publication of articles which are likelyto cause prejudice.”
It would not be surprising to find many persons reading passagessuch as I have quoted with astonishment and even with disappointment.It does seem natural, when one is confronted with what appears to bean atrocious crime, to express immediate horror and condemnation.It is poor comfort to be told that although one may not express oneselfin the way indicated in the judgments I have referred to, while a caseis pending, one may give vent to one’s feelings when the case has beenfinally decided, so long as one confines oneself to the relevant fact andkeeps within certain bounds. But that appears to be well settled law.
There are countries in which this attitude of the British system ofLawf is viewed with frank distaste as calculated to encourage crime andto pamper criminals. But, in our Jurisprudence the presumption ofinnocence is deeprooted and sacrosanct. Lord Sankey in his celebratedjudgment in the Woolmington case described it as ‘ the thread of gold ’that runs through our Criminal Law. Proceedings of the kind beforeme now are an inevitable corollary of that presumption. They are partof the machinery devised to ensure the effective operation of the presump-tion, and to prevent it from degenerating into an empty formula.
– 1 Times 20. 120.
Selvaratnam v. Anandavelu.
487
For the reasons I have given, I must hold that although the respondentshad no intention to cause prejudice, the publications for which theyadmit responsibility are ‘ calculated to produce an atmosphere of pre-judice in the midst of which proceedings must go on ’, and in that way,they tend to interfere with a fair trial of the case.
It would appear that the respondents entertained the opinion thatthey were entitled to comment on the case in the way they did so longas they did not say anything directly against those charged with theoifence. Now that that opinion has been held to be erroneous they havetendered an apology to this Court. Mr. Nadesan who appeared for thepetitioner, and if I may say so, put forward his case with commendablemoderation said that this application for a Rule was made for the solepurpose of repairing any prejudice that might have been caused to hisclient. In all these circumstances and particularly in view of the factthat I have found that it was not the purpose of . the respondents whenthey published these articles to cause prejudice to the accused or to inter-fere with the course of justice, I think that it will be sufficient if Iorder that the Rule be discharged in view of the apology that has beentendered by the respondents. This apology, I think, will serve thepurpose the petitioner had in view in making this application. I feelconfident that there will be no recurrence of this sort of comment infuture.
Rule discharged.