D.P.P. v Belize Times Press Ltd et Al

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Ponnabalam, J.
• Judgment Date: 08 October 1987
• Docket Number: Application No. 188 of 1987
• Date: 08 October 1987

Supreme Court

Ponnambalam, J.

Application No. 188 of 1987

D.P.P.

and

Belize Times Press Ltd. et al

Appearances

Mr. Denys Barrow with Mr. T. J. Gonzalez, Acting D.P.P.

Mr. V. H. Courtenay S.C. with Mr. Said Musa S.C. and Mr. Edwin Flowers S.C. for the respondents

Practice and procedure - Libel proceedings — Application for leave to institute proceedings — Principles upon which the trial judge should exercise his discretion to grant leave — Libel and Defamation Ordinance, Cap. 131 — Criminal Code, Cap. 84.

Ponnabalam, J.

1 This is are application, by the Director of Public Prosecutions for leave to institute proceedings for criminal libel against the respondents. The alleged libel is a news-item appearing in the first page of The Belize Times newspaper dated 31 ^st May 1987, under the caption “MILK SCANDAL!”. The first respondent is the publisher of that newspaper and the second respondent is named in that issue of the newspaper as its editor.

2 Where the prosecution is of a person or persons responsible far the publication in a newspaper of and libel therein, as is the case in these proceedings, the leave of a judge is required by section 12 of the Libel and Defamation Ordinance (cap. 131). Section 12 reads:

“No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a judge in chambers being first had and obtained. The application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against such application.”

3 The judge has a discretion to grant or refuse leave and that discretion must be exercised judicially taking into account the relevant principles applicable and all the circumstances of the particular cases.

4 According to the principles, which are now well established the judge should not exercise his discretion to grant leave unless he is satisfied that –

1

There is a clear prima facie cases. 2. The libel is so serious that it is proper for the criminal law to be invoked, and 3. That the public interest requires the institution of criminal proceedings.

5 In Goldsmith v. Pressdram Ltd., [1977] All E.R. 557, Wien J. formulated the principles applicable in the following words:

“For the benefit of the parties in this case, and for my own benefit as well, I think I ought to state that these are principle that can be extracted from all the cases that have been cited that should influence me one way or the other in this particular case.… First, before a discretion can be exercised in favour of an applicant who wishes to institute criminal proceedings in respect of a libel, which he contends is criminal, there must be a clear prima facie case. What I mean by that is that there must be a case to go before a criminal court that is so clear at first sight that it is beyond argument that there is a case to answer. Secondly, the libel must be a serious one — so serious that it is proper for the criminal law to be invoked … Thirdly, the question of the public interest must be taken into account, so that the judge has to ask himself the question, “Does the public interest require the institution of criminal proceedings?” What is not appropriate, in my judgment, is the question whether damages might or might not afford an adequate remedy to the complainant. I consider that the question is irrelevant. Once one arrives at the conclusion that the criminal law ought to be invoked then it is not a private case between individuals: the state has an interest and the state has a part in it.”

6 When J. found these conditions to be satisfied in Goldsmith's case, where the complainant occupied important public positions, where his integrity which was a matter of general public interest had been impugned, a criminal offence of conspiracy to pervert the course of justice was alleged against him and where respondent admitted that the article was untrue but had pursued a campaign of vilification against the complainant for months. Wien J. granted leave to institute prosecution for criminal libel.

7 The principles, as formulated by Wien J. were adopted by Taylor J. in Desmond v. Thorne [1982] 3 All E.R. 268, where he stated that apart from the three broad principles laid down by Wien J. it was undesirable to attempt to lay down detailed criteria for the exercise of an unfettered discretion. Applying the principles to the facts of the case before him, Taylor J. said:

“I have no doubt that in considering whether there is a clear prima facie case I must look at all the circumstances. Likewise in considering whether the public interest requires the institution of criminal proceedings. Adopting that approach and applying the principles to the facts of the present case, I am far from satisfied that there is here a case so clear as to be, beyond argument, a case to answer. The admitted facts take much of the sting out of the article. The applicant's own script contains passages which tend to confirm both the tenor and some of the detail of the article. The affidavit evidence, not only of the respondents but of independent witnesses, further tends to undermine the reliability of the evidence for the applicant. Furthermore, I am quite satisfied that this is not a case in which the public interest requires the institution of criminal proceedings.

8 Our Criminal Code, in section 132 states a defamatory matter as:

“A person is defamed if matter be imputed to him which amounts to a crime, or which imputes him misconduct in any public office, or which is likely to injure him in his occupation, calling or office, or to expose him to general hatred, contempt or ridicule.”

9 This is a more compendious description than what prevails in English law of the crime of libel, according to which it is any writing which tends to vilify a man and bring him into hatred, contempt or ridicule.

10 Along with his application, the applicant filed and exhibited a copy of the 31 ^st May 1987 issue of The Belize Times, in which the alleged libel under the headline “MILK SCANDAL!” appears. I reproduce it here.

“MILK SCANDAL.

“The firm of Santiago Castillo Limited has once again been secretly awarded the tender for the supply of condensed milk for the country of Belize, by government.

No announcement has been made about it, neither were the bids open for public viewing as standard tendered procedure would require to avoid abuse and corruption. According to a well placed source, at least six other business firms submitted tenders at bids below seventy cents per tin. Condensed milk brought in by Santiago Castillo presently sells in Belize for 89 cents per tin.

The UDP in it electoral promises undertook to decontrol the price of milk and to allow importers to compete on the open market.

The business house of Castillo is known to be a major contributor of campaign funds to the UDP. Indeed it is now established that for two years prior to the elections in 1984, the now Prime Minister, Rt. Hon. Manuel Esquivel, was paid a salary of $1,500 per month.”

11 In support of the application, an affidavit sworn by Hon. Mr. Manuel Esquivel, the Prime Minister was filed. This affidavit states:

• “1. That in addition to being the Prime Minister of Belize, I am also the Minister of Finance in the Government of Belize, having been appointed as such by Her Excellency the Governor-General on the 17 ^th day of December, 1984, which appointment was published in Government Gazette Notice 1361 of the 20 ^th December, 1984.

• 2. That in my capacity as Minister of Finance, I have ministerial responsibility for the administration and award of tenders for the supply of goods and services.

• 3. That the principles and procedures for the award of tenders are laid down by the Government from time to time and all applications for tenders are invariably considered strictly on merit and in accordance with such principles. The lowest bid is seldom the sole criterion for awarding tenders and for this reason, all invitations for tenders include the phrase — “the lowest or any tender need not necessarily be accepted”.

• 4. That I was at no time paid a salary of $1,500.00 per month (or any salary at all) by Santiago Castillo Limited and I have never awarded any tender to the said firm, as a consideration, allegedly, for favours showered on me or on the United Democratic Party (UDP) prior to the general elections.

• 5. That any allegations and innuendoes to that effect contained in the head-lined news-item in “ The Belize Times” dated 31 ^st May, 1987, captioned “Milk Scandal” are palpably false, grotesque figments of the imagination without foundation, and can only tantamount to a criminal attack upon my personal integrity and upon my performance in the office of Prime Minister and Minister of Finance in the Government of Belize.”

12 Along with the application, an affidavit by Anna Melendrez, Acting Administrative Assistant in the Attorney-General's Ministry was filed exhibiting a copy of the declaration made pursuant to section 12 of the Newspaper Ordinance (Cap. 199) in regard to the registration of the newspaper The Belize Times. In the course of the hearing of this application, an affidavit to the same effect, sworn by Robert Leslie, Permanent Secretary in the Ministry of Foreign Affairs and Economic Development and the Ministry of the Attorney-General was filed exhibiting the same declaration in regard to the registration of the newspaper The Belize Times.

13 Two other affidavits were filed along with the application, but at the hearing, counsel for the applicant requested the court to disregard those affidavits and they were not read as evidence for the applicant.

14 On behalf of the respondents, two affidavits were sworn and filed. One affidavit was by Katharine Louise Price, the Manager of The Belize Times...