1969.06.25

1966 (A) 2472

Minshu Vol.23 No.7 at 975

Judgment upon case of defamation

Case of defamation

Judgment of the Grand Bench, quashed and remanded

Article 230-2 of the Penal Code

Article 230-2 of the Penal Code:
When the act provided in paragraph 1 of the preceding Article is found to have been committed solely for the benefit of the public and regarding matters of public concern and when, upon inquiry into the truth or falsity of the facts, the truth is proved, punishment shall not be imposed.

2. In the application of the provisions of the preceding paragraph, matters concerning the criminal act of a person for which a prosecution has not yet been instituted shall be deemed to be matters of public concern.

3. When the act provided in paragraph 1 of the preceding Article is committed in regard to matters concerning a public servant or a candidate for elective public office, and when, upon inquiry into the truth or falsity of facts, the truth is proved, punishment shall not be imposed.

The judgment of prior instance and that of the first instance shall be quashed.
This case shall be remanded to the Wakayama District Court.

As all the grounds of appeal submitted by Attorneys Atsushi Hashimoto and Shigeru Hosomi, including the one of alleged violation of Article 21 of the Constitution, are in substance no more than contentions of incorrectness in the construction and application of law, none of them amount to lawful grounds of a Jokoku appeal.

This Court, however, examines the case ex officio in view of the submissions. The gist of the facts constituting the offence indicated in the judgment of the court of first instance, and being affirmed by the court below is:

"The accused published in his paper 'The Yukan Wakayama Jiji' dated February 18, 1963 a news under the headline 'Wicked Acts of A, the Blood-sucker' to the effect that A, the proprietor of the D Tokudane Shimbun, or his subordinate under his instructions had given to a certain section chief in the Public Works Department of the Wakayama City Office within hearing of others a parting threat, 'If you made a due offer, we should shut our eyes to your deed. But as you are quite niggardly, you know what we shall do', and had threatened a certain higher superintendent of the City Office by making a remark, 'A tender feeling always finds a ready response, they say. Well, my boy, you are suspected of corruption, too. Shall we settle the matter over a glass in a proper place?' Wherewith the accused defamed A by alleging these facts in public."

The court of first instance applied in its judgment Paragraph 1 of Article 230 of the Penal Code to the above-mentioned facts and pronounced the accused guilty.

The attorneys in the court below contended, "Mens rea of defamation is negatived in the light of the fact that he believed in the existence of the facts he published on such information and grounds as to enable him to prove it. And the accused is not guilty " The court below rejected the contention in its judgment, saying, "It is the purport of the Decision of the Supreme Court (Decision of the 1st Petty Bench, May 7, 1969, Supreme Court Criminal Report Vol. 13, No. 5, p. 641) that the accused is not entitled to be exempted from criminal liability for defamation, notwithstanding his mistaken belief in the existence of the facts so long as it is not proved", and held that the accused could not be exempted from criminal liability for defamation, even if there had been good reason for his mistaken belief in the existence of the facts.

It should be observed, however, that Article 230-2 of the Penal Code has been enacted to reconcile the personal security to honour of an individual and the freedom of speech provided for in Article 21 of the Constitution. Giving thought to the reconciliation and balance of these two interests, it should be construed that, even if there is no proof of the existence of the facts under Paragraph 1 of Article 230-2 of the Penal Code, no crime of defamation was committed because of the absence of mens rea, when the publisher believed mistakenly in the existence of the facts and there was good reason for his mistaken belief on the basis of reliable information and grounds. We are of the opinion that the Decision of the Petty Bench of this Court (Decision of the 1st Petty Bench, May 7, 1959, Case Number (A) No. 2698 of 1958, Supreme Court Criminal Report Vol. 13 No. 5, p. 641) diverging from this construction and holding that the accused is not entitled to be exempted from criminal liability for defamation notwithstanding such mistaken belief so long as the existence of the facts is not proved, should be overruled. It follows that the aforementioned holding in the judgment of the court below is incorrect in the construction and application of law.

While E, a witness applied for by the defence, testified in relation to the count corresponding to the aforementioned facts found in the judgment of the court of first instance to the effect that he had got out of certain officials of the Wakayama City Office information as to the published news mentioned in the count and had given it to the accused, the prosecution raised an objection on the ground that it was hearsay. And the court of first instance, sustaining the objection, rendered a ruling to exclude the whole of the objected part of the testimony from the record and came to the aforementioned judgment of the conviction of the accused, holding that the truth of the content of the news was not proved and that it could not be found that there had been good reason for the accused's belief in its truth. This judgment was affirmed by the court below.

In the light of happenings in the trial such as the attorneys' submission to the effect that the accused was entitled to be acquitted under Article 230-2 of the Penal Code as the act had been done of necessity with good motive for the public benefit, and their application for the examination of E as a witness in relation to the aforementioned count, and the ruling of the court of first instance adopting him without any restriction as to the facts to be proved and so on, it should be understood that the issue of the existence of good reason for the accused's mistaken belief in the truth of the content of the news was also included among the facts to be proved by E.

Since the aforementioned part of E's testimony which the court of first instance excluded cannot be said to be hearsay in proving the fact that there had been good reason for the accused's mistaken belief in the truth of the content of the news, though hearsay in proving the truth of the content of the article, it must be said that the court of first instance was illegal in misconstruing the law as to meaning of hearsay and in excluding the evidence which should not have been excluded. And the judgment of the court below affirming it was also illegal in misconstruing the law and in not examining sufficient evidence.

The problem whether there is exemption under Paragraph 1 of Article 230-2 or not should have been decided in the present case upon careful examination of the factual problem whether there had been good reason for the accused's mistaken belief in the truth of the content of the news on the basis of reliable information and grounds. The illegalities of the court below misconstruing the law and omitting the decision of the just mentioned problems are material to the judgment. It is incompatible with justice not to reverse the judgment.

Therefore, according to Item 1 of Article 411 of the Code of Criminal Procedure, this Court reverses the judgment of the court below and that of the court of first instance and remands the case to the Wakayama District Court for further proceedings.

This judgment is rendered by unanimous opinions of all the justices of this Court.

In the presence of the Public Procurator Hiizu Hiraide. June 25 1969

Justice Kazuto Ishida
Justice Toshio Irie
Justice Kingo Osabe
Justice Yoshihiko Kido
Justice Jiro Tanaka
Justice Jiro Matsuda
Justice Makoto Iwata
Justice Kazuo Shimomura
Justice Kotaro Irokawa
Justice Ken-ichiro Osumi
Justice Masao Matsumoto
Justice Yoshimi Iimura
Justice Tomokazu Murakami
Justice Kosato Sekine