Vaikunthavasan V. The Queen

1954 Present: 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, s. 7-Penal Code, s. 479.

In a prosecution for criminal defamation as defined by section 479 of the Penal Code, the burden is on the Crown to establish inter alia :

(1) that the accused made or published the particular imputation complained of;

(2) that he did so with the requisite intention or knowledge.

APPEAL 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. Weeraratne, Crown Counsel, for the Crown.

Cur. adv. vult.

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 with having defamed Mr. Allen Smith, the Auditor-General of Ceylon, by publishing in Colombo in an issue of the "People's Voice" of 30th May, 1952, an article containing a serious imputation on the integrity of Mr. Smith. The words complained of are grossly defamatory, and, if the conviction was justified, the fine of Rs. 250 imposed on the appellant was quite inadequate.

It was proved against the appellant that he was registered at the relevant date under the Newspapers Ordinance as the printer and publisher in Colombo of the " People's Voice ". He gave evidence, however, in his defence, and explained that he had in fact been absent in Jaffna almost continuously during the months of April and May, 1952, in promoting his own candidature and the candidature of other persons at the Parliamentary elections. He stated that he had made arrangements for the newspaper to be edited and published during his absence by someone else, and that he was quite unaware of the publication of the particular article referred to in the indictment until he returned to Colombo after the newspaper of 30th May, 1952, had gone out in circulation.

The learned District Judge accepted the evidence that the appellant had been absent from Colombo almost continuously during the months of April and May, 1952. Nevertheless, the learned Judge stated that he was " not at all satisfied with the evidence given by the accused that he

was not privy to the publication of this particular newspaper ". On this basis, the learned Judge proceeded to hold " that the accused was the printer and publisher of the (defamatory) statement in question, and that he was guilty of the charge laid against him ".

It is unnecessary to analyse in detail the process of reasoning by which the learned Judge took the view that the commission of the offence had been brought home to the accused. Shortly stated, he assumed that, upon proof that a defamatory statement appeared in a newspaper of which an accused person was registered under the Newspapers Ordinance as its printer and publisher, the burden shifted to the defence to satisfy the Court that he was not criminally responsible for the publication of that statement. This assumption was based upon a suggested interpretation of section 7 of the Newspapers Ordinance which I am quite unable to accept.

In a prosecution for criminal defamation as defined by section 479 of the Penal Code, the burden is on the Crown to establish inter alia :

(1) that the accused made or published the particular imputation complained of;

(2) that he did so with the requisite intention or knowledge.

If the defamatory imputation complained of appears in a newspaper of which the accused person was registered as its printer and publisher, section 7 of the Ordinance declares that the prosecution will have discharged the onus of establishing the fact of publication of the newspape

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