clr/1984/1984_2_431.pdf

(1981)The chief editor of "Alithia" newspaper was at all material times a certain Alecos Constantinides but the publication concerned in these appeals has not been written by an identifiable person. The publication in question was to be found in the issue of 5 such newspaper on the 27th June 1983,which was a Monday; andthough it wascorrectthat inthe Monday issuesof "Alithia" it was not stated that Constantinides was the Chief Editor, appaiently because he did not work as Chief Editor in relation to such issues, it has not been suggested that the "Alithia" 10 newspaper which was published on Mondays is not the same "Alithia" newspaper which is published on all other days of the week. The publication in respect of which the appellants wereconvicted waspreceded byan earlier closely similarpublication in the issue of "Alithia" on the 25th June 1983, wMch 15 was a Saturday, and in that issue there appeared the name of Constantinides as the chief editor; and, then, there followed, onthe 3rd July 1983,whichwasa Sunday,an article by Constantinides himself by means of which the publication of the 27th June 1983,which gave rise to thepresent criminal proceedings, 20 appeared to be endorsed. Upon appeal against conviction by both appellants and by appellant 2against the sentence of C£400fineit was contended: (a) That it has not been established that appellant 1, as a company, was criminally responsible in respect 25 of the publication in question, either under section 46(A) or under section 50 of Cap. 154; and that, consequently, in view of the provisions of section 3A

(2)of Cap. 79,asamended by Law 69/65, appellant 2 could not be found guilty of either of the offences 30 of which he was convicted, because criminal liability onhispartcouldonlyariseifappellant 1 hadcommitted the said offences. (

1. b)That the publication in question, which appeared to have emanated from a member of theeditorial staff of 35 the newspaper concerned, was not published by anybody who could be so identified with appellant 1 as to be treated in law as the act of appellant 1 as a company. 432 2 C.L.R. Alithia and Another v. Police (
2. c)Thatthesentenceof C£400which was passed onappel­ lant 2 was, in the circumstances manifestly excessive. 5 10 15 20 Held, that inthe light of the relevant principles of law govern­ ing ihe criminal liability of a company in a case such as the present one (see. inter alia, Dias UnitedPublishing Company Ltd. v. ThePolice

(1982)2 C.L.R. 229) it was reasonably open to the trial Court to hold that the publication of the 27th June 1983 emanated from a person behaving as the "embodiment" of appellant 1as a company, even if at that time such person was not identified; and that, consequently, the conviction of appellant 1 has to be upheld in respect of both the offences concerned; that as regards appellant 2 his conviction was, also, warranted, in the circumstances of this case, once il had . been established that appellant 1was criminally liable in respect of the publication in question.

(2)That the sentence of C£400 fine that was passed upon appellant 2 was not manifestly excessive, especially since he admitted during his trial that he had failed to exercise contiol over thecontentsof the "Alithia" newspaper, as hewas expected to do in the capacity of the persoil named as being responsible for the purposes of section 3A of Cap. 79, as amended by Law 69/65. Appeals dismissed. Cases referred to: 25 Dias United Publishing Co. Ltd. v. Police

(1982)2 C.L.R. 229; Tesco Supermarkets Ltd. v. Nattrass [1971] 2 All E.R. 127; R. v. AndrewsWcatherfoil Ltd. ΓΊ972] I All E.R.

1. 30 35 Appeals against conviction. Appeals against conviction by Alithia Ekdotiki Eteria Ltd. and Another who were convicted on the 20th October, 1983 at the District Court of Nicosia (Criminal Case No. 11990/83) on one count of the offence of insulting the Head of the State contrary to section 46(A) of the Criminal Code, Cap. 154 (as amended by Law 5/67) and on one count of the offence of publishing false news contrary to section 50 of the Criminal Code, Cap. 154 (as amended by Law 70/65) and were sentenced 433 Alithia and Another v. Police (193-4) by Aristodemou, D.J. to pay £400- fine each on count 1 with no sentence bemg passed on count
2. Α. Μarkides, for the appellants. L. Loucaides, Deputy Attorney-General of the Republic, for the respondents. 5 Cur. adv. vult. TKIANTAFYLLIDES P. read thefollowingjudgment of the Court. The two appellants were the co-accused in criminal case No. 11990/83, in the District Court of Nicosia, and both of them were convicted of the offence of insulling the Head of State, 10 contrary to section 46(A) of the Criminal Code, Cap. 154, as amended by the Criminal Code (Amendment) Law, 1967 (Law 5/67), and of the offence of publishing false news, contrary to section 50 of Cap. 154, as amended by the Crimmal Code (Amendment) Law, 1965 (Law 70/65). 15 The appellants were convicted in respect of a publication, on the 27th June 1983, in the "Alithia" daily newspaper. Appellant 1is the proprietor of thesaid newspaper and appel­ lant 2 was named by appellant 1 to be the person responsible for the administration and control of such newspaper, under the provisions of section 3A of the Press Law, Cap. 79, as amended by the Press (Amendment) Law, 1965 (Law 69/65). 20 Both appellants were sentenced to pay a fine of C£400 each in respect of the first of the aforementioned two offences and no sentence was passed upon them in respect of the second 25 offence, inasmuch as it was found that the facts establishing its commission were the same as those establishing the commis­ sion of the first offence. Appellant 1 has appealed against its conviction, by means of Criminal Appeal 4484,.and appellant 2 has appealed against 30 his conviction and, also, the sentence which was imposed on him by means of Criminal Appeal 4485; and both appeals were heard together in view of their nature. Counsel for the appellants, in arguing these appeals, has abandoned his other grounds of appeal and submitted that it 35 has not been established that appellant 1, as a company, was 434 2 C.L.R. Alithia and Another v. Police Triantafyllides P. criminally responsible in respect of the publication in question, either under section 46(A) or under section 50 of Cap. 154; and that, consequently, in viewof the provisionsof section 3A

(2)of Cap. 79, as amended by Law 69/65, appellant 2could not be 5 found guilty of either of the oifences of which he was convicted, becausecriminal liability on hispart could onlyarise if appellant I had committed the said offences. It was argued, furiher, by counsel for the appellants, that in any case, the sentence of C£400 fine, which was passed on 10 appellant 2, is, in the circumstances, manifestly excessive. Asregards the conviction of appellant 1 it has been contended by counsel for the appellants that the publication in question. which appears to have emanated from a member of the editorial staff of thenewspaper concerned, wasnot published by anybody 15 who could be so identified with appellant 1 as to be treated in law as the act of appellant 1as a company. In relation to the legal principles governing the crimmal liability, in a case such as the present one, of a company useful reference may be made to the cases of Dias United Publishing 20 CompanyLtd. v. The Police,

(1982)2 C.L.R. 229, TescoSupermarkets Ltd. v.Nattrass, [1971] 2All E.R. 127,and R. v.Andrews WeatherfoilLtd., [1972] 1All E.R. 65, as well as to Halsbury's Law of England, 4th ed., vol. 7, p. 451, para. 757. It has been submitted by counsel for the appellants that the 25 present case is distinguishable from the Dias case, supra, in that the publication involved in that case was a leading article written by a certain Alecos Constantinides, who was at the time the chief editor of the "Simerini" newspaper in which such article waspublished, whereasin the present casethe publication 30 concerned does not appear to have been written by an indentifiable person. Actually, the aforesaid Constantinides became later, and has been at all material times, the chief editor of "Alithia" newspaper. 35 The publication in question isto befound inthe issue of such newspaper on the 27th June 1983, which was a Monday; and though it is correct that in the Monday issues of "Alithia" it wasnot stated that Constantinides was the chief editor, appa435 Triantafyltides P. Alithia and Another \. Police

(1984)rently because he did not work as chief editor in relation to such issues, it has not been suggested that the "Alithia" newspaper which is published on Mondays is not the same "Alithia" newspaper which is published on all other days of the week. It is significant that the publication in respect of which the 5 appellants were convicted was preceded by an earlier closely similar publication in the issue of "Alithia" on the 25th June 1983, which was a Saturday, and in that issue there appears the name of Constantinides as the chief editor; and, then, there followed, on the 3rd July 1983, which was a Sunday, an article 10 by Constantinides himself by means of which the publication of the 27th June 1983, which gave rise to the present criminal proceedings, appears to be endorsed. We are, therefore, of ihe opinion that, in the circumstances, it was reasonably open to the trial Court to hold, in the light 15 of the relevant principles of law which were expounded by the case-law already referred to in thisjudgment, that the publication of the 27th June 1983emanated from a person behaving as the "embodiment" of appellant 1 as a company, even if at that time such person was not identified. 20 Consequently, the conviction of appellant 1has to be upheld in respect of both the offences concerned. As regards appellant 2 we are of the view that his conviction was, also, warranted, in the circumstances of this case, once it had been established that appellant 1was criminally liable in 25 respect of the publication in question. Coming, next, to the sentence of C£400 fine that was passed upon appellant 2wedo not find that it wasmanifestly excessive, especially since he admitted during his trial that he had failed to exercise control over the contents of the "Alithia" news- 30 paper, as he was expected to do in the capacity of the person named as being responsible for the purposes of section 3A of Cap. 79, as amended by Law 69/65. In the light of all the foregoing these appeals have to be dismissed. Appeals dismissed. 436 35