XN000022-1987-03-11 — Page 26

WEDNESDAY, MARCH 11, 1987

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MR SOHMEN NOTED THAT AT THE HEART OF THE PRESENT CONTROVERSY WAS THE PERCEIVED DIFFICULTY FOR THE CROWN TO PROVE, BEYOND ALL REASONABLE DOUBT, THE STATE OF MIND OF THE DEFENDANT WHEN THE SUBJECT MATTER WAS SO MUCH WITHIN THE DEFENDANT'S PERSONAL KNOWLEDGE AND WHEN IN THE ABSENCE OF DIRECT EVIDENCE, SUCH AS A CONFESSION, THE PROSECUTION HAD TO RELY SOLELY ON CIRCUMSTANTIAL EVIDENCE.

+TO SUGGEST THAT THE BURDEN OF PROOF IN THIS PARTICUL AR CIRCUMSTANCE SHOULD REST ENTIRELY WITH THE PROSECUTION IS IN ESSENCE AN ARGUMENT TO REMOVE THE THREAT OF CONVICTION IN ALL BUT THE MOST BLATANT CASES, HE SAID.

MR SOHMEN ADDED THAT THE RESULT WOULD PRODUCE BAD LAW AND THEREFORE NOT WORTHY OF SUPPORT.

HE SAID IT SHOULD BE REMEMBERED THAT THE INITIAL BURDEN OF PROOF AS TO +FALSEHOOD+ AND THE LIKELIHOOD TO +CAUSE ALARM OR DISTURB PUBLIC CONFIDENCE+ REMAINED WITH THE CROWN.

THIS WAS IN ITSELF DIFFICULT AND REQUIRED A STANDARD OF PROOF HIGHER THAN THAT IMPOSED ON THE DEFENDANT FOR A DEFENCE, HE SAID.

HE SAID THAT ALL THOSE CLAIMING THAT THE LEGISLATION WOULD +MUZZLE+ THE MEDIA SHOULD BE CONSCIOUS OF THE RISK OF BEING CALLED SIMPLISTIC, AND OF PROPAGATING A RIGHT TO PUBLISH FALSEHOODS WITHOUT REGARD TO THEIR SOCIAL CONSEQUENCES.

MR SOHMEN ALSO REFERRED TO COMMENTS THAT BY IMPOSING RESPONSIBILITY FOR THEIR PRONOUNCEMENTS ON ALL THOSE IN THE PUBLIC EYE, AND NOT JUST ON THE PRESS, A VERY DIFFERENT RESULT FROM THE ALLEGED +GAGGING OF THE PRESS+ COULD RESULT.

+THE PUBLIC WAS QUITE CRITICAL OF A RECENT DECISION NOT TO PROSECUTE FOR A FALSE STATEMENT MADE IN A FINANCIAL CONTEXT" DOES THIS NOT SUGGEST THAT THE COMMUNITY RECOGNISES THE NEED FOR STATUTORY LIMITATIONS ON THE FREEDOM OF EXPRESSION, AND ACCEPTS THE NEED FOR SANCTION?" HE QUESTIONED.

HE SAID HE DID NOT ACCEPT AS VALID THE ARGUMENTS THAT THE BILL COULD BE OPEN TO ABUSE BY THE PRESENT OR ANY FUTURE GOVERNMENT.

+ALL LAWS CAN BE MISINTERPRETED OR MISAPPLIED, BUT I SUBMIT THAT WE CANNOT LEGISLATE PROPERLY TO ACHIEVE CURRENT SOCIAL OBJECTIVES IF FROM THE START WE PREMISE OUR JUDGEMENT ON A DISTRUST OF EITHER THE JUDICIAL SYSTEM OR THE WILLINGNESS OF THE EXECUTIVE BRANCH TO ACT IN ACCORDANCE WITH THE RULE OF LAW, HE SAID.

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