059-NLR-NLR-V-16-TIMES-OF-CEYLON-v.-MARCUS.pdf
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Present: Pereira J.
44 TIMES OF CEYLON ” v. MABCUS.
235—P. C. Colombo, 39,564.
Copyright telegram—Offence under s, 2 of Ordinance No, 19 of 1898—Prosecution need not establish, that the accused knew that the newshad appeared in another paper—Burden of proof is on accused toshew that publication was not wilful—Mens rea.'
In a prosecution under section 2 of Ordinance No. 19 of 1898,where the intelligence contained in a message by electric telegraph,duly published in accordance with the Ordinance in a newspaper, isproved to have been printed and published by the accused withinthe prohibited time, such publication can be excused only if it isshown that a message similar to that received by the newspaper andin like manner sent was the local source of such intelligence.
In section 2 of the Ordinance the word “ wilftilly ” is not used inthe sense of “ knowingly.”. ,
Mens rea is not an ingredient of the offence defined in section 1.What the Ordinance means is that when a person receives intelli-gence that, humanly speaking, could only have reached Ceylon bymeans of the electric telegraph, it is his duty .before printing andpublishing the intelligence within the prohibited time to tracethe primary local source of the intelligence, and to print andpublish the intelligence, if he desire to do so, only if the sourceaforesaid happen to be a source other than a newspaper in whicha copyright telegram containing the same intelligence appears.
T
HE accused in this case was charged under section 2 of Ordi-nance No. 19 of 1898 with having wilfully caused to be
printed and published in The Ceylonese an item of telegraphic newswhich was published in the Times of Ceylon and was fined Rs. 100.He appealed.
H. A. Jayewardene (with him A. St. V. Jayewardene), for theaccused, appellant.—There is nothing to show that the accusedtook over the news from the Times of Ceylon. The two paragraphsare not the same.
The accused says that he got thte news from a gentleman at ahotel. [Pereira J.—Why don't you prove that the informationwas received by others as well ?]
There is nothing to show that the accused published the news44 wilfully." The word 44 wilfully ” means 44 knowingly.” In acase of this kind the prosecution should prove that the accused knewat the time he published this news that he was contravening the
Vol. XVI.8
1918*
20 -J. K. 35177 (1/34)
i M.
“ Times ofCeylon ” v.Morctts
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Ordinance in publishing it—that he published it after knowing thatthe telegram had appeared in another paper. [Pereira J.—Theword '* wilfully ” is used as opposed to " accidentally.*']
Even if the word “ knowingly ” is not in the section, it oughtto be read into it. It is not always that a statute states all theingredients of an offence. There are some ingredients which arecommon to all offences, and they ought to he introduced into thesection even if not expressly stated. See Queen v. Tolson.l
Mens rea is a necessary element in all offences.
The word " wilfully ” should be read not only with “ print andpublish,” but with ” matter contrary to the provisions of theOrdinance.” Counsel cited Capper v.. Wayman et al.t2 and askedthat the point be reserved for the consideration of two or moreJudges.
H. B. Koch, for the complainant respondent (not called upon).
Cur. adv. vult.
April 28, 19.13. Pereira J.—
•
In this case the accused has been convicted, under section 2 ofOrdinance No, 19 of 1898, of having wilfully caused to be printedand published certain matter contrary to the provisions of theOrdinance. Under the Ordinance, when once a message by electrictelegraph from any place outside the Island, lawfully received byany person, has been published by him in a newspaper circulatedin the Island, no other person may, without the consent in writingof the first-mentioned person, print or publish, or cause to beprinted or published, until after the expiration of a certain period,such telegram or the substance thereof or an extract therefrom.The publication of the whole or any part of such telegram or ofthe substance thereof or (excepting the publication of any similarmessage in like manner sent) of the intelligence therein containedor any comment upon, or reference to, such intelligence, it isenacted, is to be deemed to be a publication of the telegramitself.
In the course of the argument in appeal it was mentioned thatthe publication in the accused’s paper was not the same as that inthe Times of Ceylon. That may be so. By mere comparison of thetwo publications it can hardly be said that the accused has takenover the particular telegram or the substance of or an extract fromthe particular telegram that appeared in the Times of Ceylon; but,manifestly, the intelligence contained in that telegram appears alsoin the paragraph complained of in the accused's paper and thepublication of that intelligence can be excused only if it is shown thata message similar to that received by the Times of Ceylon and in likemanner sent is the local source of that intelligence.
123Q.B. D. 168.
* {1902) 6 N. L. R. 58.
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Now, it was argued that the accused did not wilfully cause to beprinted and published the intelligence mentioned above, and Iunderstood the contention to mean that the word " wilfully ” wasusedin the Ordinance in the sense of " knowingly/' that is to say, inorder to constitute the offence under section 2 of the Ordinance, itshould be shown that the accused party knew at the time he causedto be printed and published the intelligence in question that thesame intelligence had appeared in a newspaper in the form of atelegram from outside the Island. If that is the meaning of thesection, the burden of proving knowledge on the part of the accusedmust obviously rest on the prosecutoin, and it would be a matterof extreme difficulty to discharge the burden. But the word used inthe Ordinance is " wilfully,” and, so far as I am aware, that wordhas never been interpreted to signify ” knowingly.” Indeed,counsel for the appellant was not able to cite a single case in whichthe word has been so interpreted. There are cases in which theword ** wilfully ” has, with due regard to the object of the statute inwhich it occurs, been given a special meaning. In Smith v. Bam-ham,1 for instance, it was held that, in the particular enactmentthen under consideration, it had the meaning of " wantonly ” or” causelessly ”; but, generally speaking, it means, as observed byBramwell L.J. in the case of Lewis u. The Great Western Railway,2something to which the will is a party, that is to say, somethingopposed to " accidental ” or " negligent.” It may so happen thatthe editor or the manager of a newspaper may pass a communicationon to the printing department of his establishment accidentally, thatis to say, in circumstances, easily conceivable, in which, withouteven being guilty of negligence, the contents of the communicationare not noticed by him. In such a case he would not be actingwilfully, and in order that the prosecution may not be embarrassedby such a defence, the Ordinance has provision throwing the burdenof proving and establishing such a defence on the accused. TheLegislature has wisely enacted by section 5 that proof that anyperson is owner, or is acting, or appears to be acting, as editoror manager, of any newspaper in which there is any publicationcontrary to the provisions of the Ordinance, shall be primd facieevidence that such person has wilfully caused such unlawful publi-cation. So that the burden of proof in the case of a defence thatthe printing and publication were not wilful but merely accidentalor negligent is entriely on the person charged when it is proved thathe is the editor, manager, &c., of the newspaper in which theprohibited intelligence has appeared.
It was further argued by the counsel for the appellant that' theword "wilfully” must be read in connection not only with the words
print and publish,” but with what follows, namely, " mattercontrary to the provisions of the Ordinance.” This brings me tothe question—What is matter contrary to the provisions of the11 Ex. D. 419.a 3 Q. B. D. 196.
1013.
Pbbbiba J.
" Times ofCeylon *' v,Marcus
IMS.
PebbdaJ.
** Times ofCeylon ” o.Marcus
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Ordinance? It is (confining myself to matter relevant to thequestions involved in this particular case) the printing or thepublishing of intelligence mentioned in an electric telegram that hasalready been published in a newspaper. Counsel argued that theOrdinance must be understood to mean that it prohibited here theprinting or the publishing by any person knowingly of such intelli-gence, although it does not expressly say so, and he cited cases layingdown the general principles of law on which mem rea was deemed tobe an essential ingredient in every offence. No doubt, as observedby Stephen J. in the case of The Queen v. Tolson,1 it is the practiceof the Legislature to leave unexpressed some mental elements ofcrime; but at the same time it has been held that the word“ knowingly ” is not to be read into a merely statutory offence,“ unless it is clear that the Legislature intended some such quali-fication” (see Betts v. Armsteadi 2); and while in Skerimv. De Rutzon3there was a re-assertion of the doctrine that mem rea is an essentialingredient in every offence, Wright J., having mentioned two casesin which bigamy and abduction had been held to be exceptions tothis rule, proceeded to observe as follows: “ Apart from isolatedand extreme cases of this kind, the principal classes of exceptionsmay perhaps be reduced to three. One is a class of acts which, inthe language of Lush J. in Davies v. Harvey ,4 are not criminal in anyreal sense, but are acts which, in the public interests, are prohibitedunder a penalty.” The act prohibited by section 1 of OrdinanceNo. 19 of 1898 is clearly such an act, the object of the Ordinancebeing to protect and encourage newspaper enterprise, and thereby,in effect, to benefit the public; and it was not therefore intendedthat mens rea should be one of the ingredients of the act. It may besupposed by some that this construction of- the Ordinance may workhardship. I say no. What the Ordinance means is that whena person receives intelligence which, humanly speaking, could onlyhave reached Ceylon from outside by means of the electric telegraph,it is his duty, before printing and publishing the intelligence withinthe time mentioned in the prohibition, to (I will not say read andexamine every newspaper published in the Island, but) trace,through the medium of his informant or otherwise, the primarylocal source of such intelligence, and if it happen to be a source otherthan, and independent of, a newspaper in which a copyright telegramcontaining the same intelligence appears, then alone to print andpublish the intelligence within the time referred to above if hedesires to do so.
No appeal was made to me for a reduction of the sentence, nor isthere any such appeal in the petition filed.
For the reasons given above I affirm the conviction and sentence.
Affirmed.
* (1895) 1 Q. B, 918.*9Q.B.433.
i 23 Q. B. D. I6S, 187.
a 20 QB. D. 771.