Times Of Ceylon V. Marcus

1913 Present: Pereira J.

" TIMES OF CEYLON " v. MARCUS.

235-P. C. Colombo, 39,564.

Copyright telegram-Offence under a. 2 of Ordinance No. 19 of 1898- Prosecution need not establish, that the accused knew that the news had appeared in another paper-Burden of proof is on accused to show 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, is proved to have been printed and published by the accused within the prohibited tune, such publication can be excused only if it is shown that a message similar to that received by the newspaper and in like manner sent was the local source of such intelligence.

In section 2 of the Ordinance the word " wilfully " is not used in the 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 intelligence that, humanly speaking, could only have reached Ceylon by means of the electric telegraph, it is his duty before printing and publishing the intelligence within the prohibited time to trace the primary local source of the intelligence, and to print and publish the intelligence, if he desire to do so, only if the source aforesaid happen to be a source other than a newspaper in which a copyright telegram containing the same intelligence appears.

THE accused in this case was charged under section 2 of Ordinance No. 19 of 1898 with having wilfully caused to be printed and published in The Ceylonese an item of telegraphic news which was published in the Times of Ceylon and was fined Rs. 100. He appealed.

H. A. Jayewardene (with him A. St. V. Jayewardene), for the accused, appellant.-There is nothing to show that the accused took over the news from the Times of Ceylon. The two paragraphs are not the same.

The accused says that he got the news from a gentleman at a hotel. [Pereira J.-Why don't you prove that the information was received by others as well ?]

There is nothing to show that the accused published the news " wilfully." The word " wilfully " means " knowingly." In a case of this kind the prosecution should prove that the accused knew at the time he published this news that he was contravening the

Ordinance in publishing it-that he published it after knowing that the telegram had appeared in another paper. [Pereira J.-The word " wilfully " is used as opposed to " accidentally."]

Even if the word " knowingly " is not in the section, it ought to be read into it. It is not always that a statute states all the ingredients of an offence. There are some ingredients which are common to all offences, and they ought to be introduced into the section even if not expressly stated. See Queen v. Tolson.1[23 .Q .B. D. 168.]

Mens rea is a necessary element in all offences.

The word " wilfully " should be read not only with " print and publish," but with " matter contrary to the provisions of the Ordinance." Counsel cited Capper v. Wayman et al.,2[(1902) 6 N. L. R. 58.] and asked that the point be reserved for the consideration of two or more Judges.

F. H. B. Koch, for the complainant respondent (not called upon).

Cut. adv. vult.

April 28, 1913. PEREIRA J.-

In this case the accused has been convicted, under section 2 of Ordinance No. 19 of 1898, of having wilfully caused to be printed and published certain matter contrary to the provisions of the Ordinance. Under the Ordinance, when once a message by electric telegraph from any place outside the Island, lawfully received by any person, has been published by him in a newspaper circulated in the Island, no other person may, without the consent in writing of the first-mentioned person, print or publish, or cause to be printed or published, until after the expiration of a certain period, such telegram or

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