Court held letter alleging sexual encounters with a 14-year-old girl constitutes criminal libel under Section 194.

[*1358] 1972 March 18

(PIKIS, D.J.)

IN THE DISTRICT COURT OF FAMAGUSTA

Police,

v.

Michalakis Dhoukanaris,

Accused.

(Case No. 677/72).

Libel - Criminal Libel - Section 194 of the Criminal Code, Cap.

154 - what constitutes criminal libel - Letter written to girl of 14 alleging walks with her at secluded places and laying emphasis on "enjoyments" ("απολαύσεις") derived during such walks - Capable of defamatory meaning - Held to be a libel.

Libel - Ingredients of offence - Publication of libel an essential ingredient - letter - It is the receipt of letter that constitutes publication - letter posted in England and received in Cyprus - Therefore offence committed within the jurisdiction.

Police Sergeant HjiChristos, for the Prosecution.

Accused present.

JUDGMENT

The following judgment was delivered by:-

PIKIS, D.J.: The accused faces a charge of criminal libel contrary to Section 194 of Cap.154. It is an admitted fact

[*1359] that some time in April, 1971 the accused whilst in the United Kingdom sent a letter to the complainant, P.W. 2, then aged 14, that had been received by the complainant in Cyprus and read by her mother, P.W.3, who read over to the complainant parts of the letter. It is indeed unfortunate that the letter was lost in the hands of the police. Having satisfied myself that the letter has been lost and that reasonable efforts made for its recovery proved fruitless, I allowed P.W.1 and P.W.3 to give secondary evidence regarding its contents, taking the form of oral evidence. The accused in his statement to the police admits that the letter then in the possession of the police had been written by him and admits that in this letter he was making reference to walks he allegedly had with the complainant. Accused wrote in this letter that he found the walks he had with the complainant, in a certain grove at Famagusta, an

unforgettable experience. In the same spell he maintains that the "απολαύσεις" he had with the complainant during those walks is what made them so

unforgettable. In his statement to the police accused maintained that he did in point of fact go out with the complainant as suggested in his letter and contended that he was kissing and caressing the complainant, at her request. This allegation was firmly denied by the complainant, whose evidence remained unchallenged.

I have examined the evidence before me with great care and find as a fact that accused had sent a letter to the

complainant in April, 1971. He falsely alleged that on the [*1360] occasions he had gone out with the complainant to a certain garden

and that such walks were coupled with "απολαύσεις" which in the context of the letter could only mean and did mean one thing - enjoyment derived from sexual play. I have done some research on the implications of a charge of criminal libel, a crime of considerable antiquity under the common law. Section 194 of Cap. 154 and subsequent provisions of Cap. 154 reproduce English law on the subject. The matter is dealt at some length in Archbold 37th edition, paragraph 3621, et seq. An analysis of the crime of criminal libel is also found in Russell on Crime, 11th edition, volume 1, page 866 et seq. In general, for a publication to be indictable it must be actionable as a tort, the main difference being between the two forms of libel that whereas the tort of libel is only actionable if there is publication to a third party, in the case of a criminal libel publication to the person defamed is sufficient to support a charge. The distinction is justified on a consideration of the purpose that the tort of libel is designed to achieve, the protection to the reputation of the person from vilification in the mind of third parties, as opposed to criminal libel an offence created to uphold public order from the possible reactions of the person defamed.

As in the case of the tort of libel, malice is an essential ingredient of the offence; this will be presumed to be the natural corollary of a defamatory publication and need neither be averred nor proved as a distinct feature of the case, save where fair comment or privilege is set up [*1361] as a defence. The truthfulness of the defamatory allegations is no defence unless its divulgence by means of publication was made for the public benefit in accordance with Section 193(a) of Cap. 154. The spirit of the law is to restrict publications which, because of their defamatory contents, tend to arouse passions and raise feelings of anger, and provoke revenge.

It is for the judge to decide whether as a matter of law a given publication is capable of bearing a defamatory meaning and if it is so ruled, it is for the jury to decide whether the publication is/as a matter of fact defamatory. A time honoured definition of what constitutes a defamatory statement, no less apt because of its antiquity, is that adopted by Russell on Crime citing from 1 Hawk c. 73 – "Matter is defamatory if it tends to blacken the character of another and thereby to expose him to public hatred, contempt and ridicule".

Section 197(2) of Cap. 154 expressly provides that it is not necessary that a defamatory meaning should be directly or completely expressed. The Section then reads: "and it suffices if such meaning and its application to the person alleged to be defamed, can be collected either from the alleged libel itself or from any extrinsic circumstances or partly by the one and partly by the other means".

In the case of R. v. Adams.

22 Q.B.D. 66 (also cited in Archbold - 37th edition - Paragraph-3633) a letter written and sent by a man to a young woman containing a [*1362] proposal in plain terms that she should surrender her chastity to him for a sum of money was found to constitute a defamatory libel because of its tendency to provoke a breach of the peace on her part or on the part of those connected with her. In the instant case I find that the letter sent by the accused and received by the complainant was capable of bearing a defamatory meaning and further find as a fact that it was a libel. The allegation that accused escorted the complainant, a young girl of 14, on walks in a secluded place such as a garden coupled with the emphasis placed on the "απολαύσεις" they allegedly enjoyed during such solo walks, casts dark aspersions on the character of the complainant and portrays her as a girl with immoral tendencies and corrupt character. The matter is made worse and the imputation of corruption graver on account of the fact that both the addressee, and her parents into whose knowledge the contents of the letter was likely to come and did in fact come, knew of the age of the accused, their next door neighbour, who is an Old man of 75. The ultimate picture that emerges on a consideration of the contents of the letter and the extraneous matter of which complainant and her parents had cognizance is that this very young girl allowed herself to be made sexual prey in the hands of an old lecher.

Publication of the libel is an essential ingredient of the offence. The posting of a sealed letter is not

publication. It is the receipt of the letter that constitutes [*1363] publication. (See Archbodd - 37th edition - paragraph 3637).

Section 197(1) of Cap. 154 envisages in the case of a letter delivery as a necessary concomitant of publication. The test is whether the use made of the defamatory matter becomes known or is likely to become known, to either the person defamed or any other person. The matter is not academic in this case as the letter was posted in England and received in Cyprus; it is of the first importance to decide whether a crime has been committed in Cyprus. It is well known, as a matter of general principle, that the physical presence of the perpetrator of a crime, in the country where it is perpetrated, is not essential and the Court will assume criminal jurisdiction provided the crime itself is committed in Cyprus. An interesting case, though remotely relevant to the question of jurisdiction before us is the recent decision of the House of Lords in Treacy v. D.P.P. (1971) 1 All E.R. 110. The House was there concerned to decide whether a letter containing threats amounting to a blackmail posted in England addressed to a person living outside the U.K. and received outside the U.K. constituted a crime within the U.K. It was decided by majority that a crime had been committed in England, mostly on a consideration of the ingredients of the crime of blackmail which was held to be committed when the demand is made irrespective of whether it reaches the addressee.

In this case the problem does not arise as no crime was committed before the letter was received by the [*1364] complainant. Therefore, the crime with which the accused is charged and which I find that accused has committed took place wholly within the jurisdiction of the Court. I find the accused guilty as charged.

Conviction accordingly.