Fernando v. Republic of Sri Lanka
197K Present: Wijesundera, J., Malcom Perera, J. andVythialingam, J.
C. FERNANDO, Accused-Appellantand
THE REPUBLIC OF SRI LANKAS. C. 26/76—D. C. Colombo (Bribery), B/208
Bribery Act, sections, 23A, 79—Evidence Ordinance, sections 3, S, 9, 11, 54,114, 157—Administration of Justice Law, No. 44 of 1973, sections11, 13, 40. 136, 354—Burden on the accused to prove the contraryof the presumption created by section 23A (I) of the BriberyAct—Nature thereof—Matters which the prosecution has to provein a charge under section 23A of the Bribery Act—Relevance ofevidence erf specific acts of bribery—Evidence of bad character—Prejudice to accused—Effect.
Criminal Procedure Code, section 287—Administration of Justice Law,.section 136—Right of accused to be defended by an Attomey-at-Law—Denial of opportunity to prepare for cross-examinationof witness—Whether conviction sustainable.
Revision—Application by a party not on record to expunge and deleteremarks in judgment relating to such party—Scope and applica-bility of powers of Appellate Court.,
The appellant was indicted on the charge of having between 31stMarch, 1968, and 31st October, 1971, acquired certain properties(inc'udmg monies) being properties which could not have beenacquired with any part of his known income or receipts or towhich any part of his known receipts had been converted whichproperties were deemed by section 23A (1) of the Bribery Act tohave been acquired by bribery and thereby committed an offencepunishable under section 23A (3) of the said Act.
The prosecution inter alia called witness T whose evidence wasto the effect that he gave a bribe, of Rs. 60,000 to the appellant forservices rendered by the appellant in connection with the stoppingof police raids on T’s illegal betting business.
“ T ’’ was not on the list of witnesses on the indictment.App'ication was made to add his name to the list of witnesses on8.10.74, the accused was served with notice at 5 p.m. on that dayand the witness was called to give evidence on 9 10.74. Counsel’sobjection to T being called was overruled and after T’s examinationin chief, counsel for the accused moved for a date to cross examinethe witness after obtaining instructions f om his client. This wasrefused. The accused himself stated that after he received noticeat 5 p.m. on 8 10.74 he made efforts to contact his counsel hutfailed to do so.
It was contended in appeal that the conviction was vitiated interalia (a) by the admission of irrelevant and inadmissible evidence;(b) by the fact that counsel who appeared for the accused hadbeen denied an opportunity to take proper instructions and cross-examine T who was sprung on the accused at such short notice;(<•) by a grave misdirection in law in regard to the burden on theappellant to prove the contrary of the presumption created' )>ysection 23A (1) of the Act.
Held (Wijt'suNnERA, J. dissenting) : (a) that the evidence of “T”was both, irrelevant and inadmissible and in view of the expressprohibition against the admission of such evidence in section 54 ofthe Evidence Ordinance and its highly prejudicial nature, suchevidence should have been excluded by the trial Judge ; the improperreception of such evidence had resulted in the accused’s chancesof having a fair trial being prejudiced and in a failure of justice.
!•—A 533SS (80/11)
Fernando v. Republic of Sri Lanka
that in the circumstances the accused had also been deniedthe substance of the right given to him by section 136 of theAaininistration of Justice Law to be defended by an Attorney-at-Law and he had thus been denied a fair trial in this respect too ;
while the trial judge correctly set out the extent of theburden which lies on the appellant to prove 1he conira y of thepresumption created by section 23A (1) of the Act, namely proofon a balance of probability, yet in applying that standard to thefacts in the case, he had imposed on the appellant a very muchhigher standard than a mere balance of probability. For, in thecourse of his judgment he said that, besides proving the varioussources of his wealth, the e was another duty cast on the appe lantand that is to prove that the sources are free from suspicion ordoubt. If the appellant had proved that the money was not money'acquired in contravention of the Bribery Act then he has success-fully, rebutted the presumption. There is no .further burden on him…to prove. that-.the iransaction was free from taint or that thecharacter of the payments were above suspicion.
Held further: ' That section 79(11 of the'‘Bribery Act whichprovides that the giver of a gratification shall be a competent•.witness against the person accused of taking a gratification doesnot do away with the need to probe such evidence and examine-it with. due. care.
Per Wijesundera’ J. dissenting : (a) that the evidence of “ T ” was•Irrelevant. “ ……… this is only one item in a mass of evidence.
Ihis.item .has no- connection with any one.of -he transactions ordeposits. It has hot been-taken into considera'lon in determiningthat <he presumption in respect of any one of the t ansactions hasnot been-rebutted Then I fail to see how the acceptance of thisitem of evidence, vitiates the conviction ”,
(b) that the trial- Judge had net misdirected himself on theburden of proof that lay on the appellant to rebut the presumptioncreated' by’ section. 23A (1) of the Act. “When the learned trialJudge-saidthat the appellant has to prove these trans-
: actions'are-fr fee‘from taint and that the characte- of these paymentsare above suspicion he’meant nothing other than to say that leaving•a doubt alone, will not be sufficient ”
In an application by. the Hatton National Bank which was not aparty, to have certain remarks made in the judgment by the learnedDistrict Judge expunged and deleted in the exercise of the Court’s…powers by way of revision.
Held (by Malcolm Perera, J. end Vythialingam, J.) : Thatthe court has power, acting in revision to expunge and delete■disparaging remarks in a judgment about a person who is not aparty to the case, where such remarks are not elevant for thedecision of the issues in the case nor are an integral part of thejudgment, and are severable. But since in the present case theentire judgment was quashed there was no need for a separateorder expunging the remarks.
Considerations which govern-such expunging discussed.
PPEAL from a judgment of the District Court, Colombo.Cases referred to :
Public Prosecutor v. Yuvaraj, (.1970) A.C. 226 ; (1970) 2 W.L.R.
King v. James Chundrasekera, (1942) 44 N.L.R. 97 ; 25 C.L.W. 1.
Jayasena V. Thu Queen, (1969) 72 N.L.R. 313.
Yfanigasckera v. Republic of Sri Lanka, (1977) 79 (1) N.L.R. 241.
Attorney-General v. Karunaratne. S.C. 16/14; D.C. ColomboB!75 ; S. C. Minutes of 17.6.75.
Fernando v. Republic of Sri T.tinka
R v Carr-Briant, (1943) 2 All E.R■ 156; (1943) K.B. 607,;, 169 L. T.
75 ; 5.9 T.L.R. 300.
Sodeman v. R-, (1936) 2 All E. R. 1138 (P.C.).
Miller v. Minister of Pensions, (1047) 2 All E.R. 372 ; 177 L.T.
536 ; 63 T.L.R. 474.
Sarah Hobson’s Case, (1S31) 1 Leivin’s Crown Reports 261.
Batcr v. Bater, (1950) 2 All E.R. 485 ; (1951) P. 35; 66’ T.L.R.
(Pt. 2) 589.
Maxwell v. D. P. P., 24 Cr. A. R. 152; (1934)' All E.R. Rep. '168 ;
(1935) A.C. 309…■
Rowton R.V.. (1865) 34 L.J.M.C.. 37; 10 Cox C:C. 25;.29.JJ3. 149;
11 L.T. 745.
Roshtm v. Rex, (1S80) 5 C 768 ; 6 C.L.R. 219.
R.v. Kartink Chunder Das, (1887) 14 C 721; 7 Indian' Decisions(N.S) 478.
R. v Bnltencasser, (1948) 1 K.B. 4 ; (1947) 2 All E.R. 415 ; 63 T.L.R.
463 ; 32 Cr. A.R. 81.=..
Makin v. Attorney-General for N.S.W. (1894) A.C. 57 ; 69.L.T. 778..
10 T.L.R. 15S.'
King v. Pila, (1912) 15 N.L.R. 453.
Queen v. Satliasivam, (1953) 55 N.L.R. 255.
Pauline' de Croos v. The Queen (1968) 71 N.L.R. 169.'
King v. Peiris, (1931) 32 N.L.R. 318.
Regina v. Parbhudas, (1894) 11 B.H.C.R. 90.
Ranasinghe and Another v. State, S.C. 4-5/75 D.C. Bribery Colombo*148/B ; S.C. Minutes of 14.8.1975.'
Rajakaruna v. Attorney-General,—S.C. 31/75 ; D.C'; Colombo 292/B ;
S.C. Minutes 27.2.1976.
King v. Perera, (1941) 42 N.L.R. 526.
Peter Singhe v. M. B. Werapitiya, (1953) 55, N.L.R,; 155. vCoore v. James Appu, 22 N.L.R. 206.. _ . …. .
Manuel v. Kanapanickan, (1911) 14 N.L.R. 186. f',’ ..
Premarat.ne v. Gunaratne, (1965) 71 N.L.R. 113.'
R. v. Silva, (1907) 1 A.C.R. 148.
Jayasinghe v. Munasinghe, (1959) 62 N.L.R.,527Queen v. Prins', '(1962) 61 CLW 26. *
Queen v. Peter, (1961) 64 N.L.R. 120 ; 59 C.L-W. li2.
Llewellyn Evans-, A:I.R. (1926), 28 Bombay 551'.:
Rangctsamy Padayachi, (1916) 16 G.L.J. 786. .■ n
Subramoniam r. Inspector of Police KankesanUprui, (1968) 71 N.L.R.204
State of Uttar Pradesh v. Mohamet Naim, (1964) A.'I.R: S.C. 703.Narthupana Tea & Rubber Estates Ltd. v. Perera, (1962) 66 N.L.R-
Queen v. Murugan- Ramasamy, (1964)66 N.L-R. 265(P.C.) ;
(1965) A.C. 1 ; (1964) 3 W.L.R. 632… ■< i
Gvnawardane v. Inspector of Police Ragalla, S,C-. 75S/70 ; M.C.
Nuwara Eliya 36 867 ; S.C. Minutes 26.1.1976.
Mitra v. Ra’a Kalicharam, (1927) 3 Lucknow-287.•' 1
In re Bikaru, 22 Lucknow 391.• v •.,
Narasinghe Bhadur, (1961) A.l.R. AllahabadA.47,…..■:
M.ndis v. Paramasamy, (1958) 62 N-L-R. 302.
D.S. Swami v.. The State A.l.R., (1960) S.C. 7.
Dhanvantari v. The1 State of Maharashtra, A.l.R. (1964)' S.C. 575.Reg■ v. Boardman, (1974) 3 W.L.R. 673 (1974) 3 All E.R< 887 ; (1975}
P. P■ o. Ki.lhourne, (1973) A.C. 729 ; (1973) 2 W.hiR. 254 ; (1973>1 All E.R. 440. •
WIJiiSUNDiCUA. J.- -Fernando v. Republic of Sri Lanka
' ' Noor Mohamed v. The King, (1949) A.C. 182 ; (1949) 1 All E.R. 365.
Regina v. Waidyasekera, (1955) 57 N.L.R. 202.
••• Thompson v. R. (1918) A.C. 221; US L.T. 418; 34 T.L.R. 204; 87
Moses v• The Queen, (1971) 75 N.L.R. 121 (P.C.).
Samarakoon v. Public Trustees, (1960) 65 N.L.R. 100.
Ariyadasa v. The Queen, (1967) 70 N.L.R. 3.
:Appuhamy v. dVeeraiunga, (1921) 23 N.L.R. 467.
Jairam Das v. Emperor, A.l.R. (1945) P.C. 94.
'■ '■ S. P. Du boy v. Narasinghc Bahadur, A.l.R. (1961) Allahabad 447.
R. S. R. Coomaraswamy, with C. Chakradharan, M. Devanci-ft'agam, E. R. S. R.' Coomaraswamy (Jr.) and R. K. S■ SureshQhandra, for the accused-appellant.
S^.J. Kadirgqmar, Q.C., with V. S. A. Pullenayagam and Mrs-N. &unesek'era, for the aggrieved-petitioner (Bank).
Kenneth Sencviratne, Director of Public Prosecutions, withUpcnuansa Yupay. Senior State Counsel, for.the Attorney-General.
Cur. udu. uult
August 10, 1978. Wuesundera, J.
• !Tht: appellant-Vas indicted in the District Court of Colomboon the following charge :
“ That between the 31st day of March, 19G8 and 31st day ofOctober 1971, within the jurisdiction-of this Court you didacquire the following property
The properties described in schedule ‘ A ’ annexed heretobeing properties which could not have been acquiredwith any part of your known income or which couldnot haver been any paft of your known receiptsor which could not have been property to which any. ■ part of your known receipts had been converted ; andAt (b> The'money described in schedule ‘B’ annexed hereto•A.)being money which could not have been part of your
.known income ^pr receipts or which could not have
been money to which any part of your known receiptshad been converted,
and such property being deemed by section 23A(1) of the BriberyAct to be property acquired by bribery or property to which youhad converted property acquired by bribery and that you being•or having been the owner of such property are thereby guilty ofan.-offence punishable under section 23A (3) of the Bribery Act. ”
Schedule A contains details of 6 properties and schedule B two■ items of: cash-
WIJESUNDERA, J.—Fernando v. Republic of Sri Lanka
Schedule ‘ A ’
Mount Hunnasgiriya Estate, Kandy, purchased on deedbearing No. 2640 dated 25.1.1971 and attested by H. J. C. Perera,Proctor.
Property purchased on deed bearing No. 2656 dated 16.2.1971and attested by H. J. C. Perera, Proctor.
100 shares at Rs. 2.50 each in Moolgama Estate Co. purchas-ed on 2.6.1971.
8423 shares at Rs. 2.50 each in Gamawella Tea & RubberCo. Ltd., purchased between July and October, 1971.
Property purchased by deed bearing No. 2752 dated3.10.1971 and attested by H.J.C. Perera, Proctor.
Yelverton Estate, Badulla, purchased on deed bearing No.906 dated 30.101971 and attested by R. N. J. Attanayake, Proctor.
Schedule ‘ B ’
A sum of Rs. 00,000 deposited at Hatton National BankLtd., on 20.7.1971.
A sum of Rs. 2,072.97 paid to the Industrial Finance Com-pany between 24.6 70 and 25.8.70.
The appellant was appointed a Director of the Insurance Cor-poration of Sri Lanka on 6th June, 1970, a working Director on15th June, 1970, and the Vice Chairman of the Corporation on the14th August of the same year. He resigned from the Corporationon 6th December, 1971. As a Director he was a person to whomsection 23A of the Bribery Act applied. After the appellant resign-ed from the Corporation the Bribery Commissioner on the 29thFebruary, 1972, required the appellant to furnish a statement interms of sections 3 and 4 of the Bribery Act. The appellant furnish-ed that statement on the 6th March, 1972. Thereafter the BriberyCommissioner by two notices dated 25.5.1971 and 31 5.1971 requir-ed the appellant to show cause why he should not be prosecutedfor an offence under section 23A of the Act, in view of the fact thatthe appellant did own the properties enumerated in the notices.The appellant showed cause by his letter dated 7th June, 1972,which will be referred to as the explanation hereinafter. Thisexplanation being unsatisfactory in the opinion of the BriberyCommissioner he filed a certificate in the District Court of Col-ombo on the 20th May, 1974. Thereupon on the 28th May, 1974,the Attorney-General indicted the appellant on the charge setout above. The properties in schedules A and B in the Indictmentdiffer from the properties in the two notices in two respects : —
a car 4 Sri 4753 purchased by appellant for Rs. 31,000 isnot included in the schedules,
WXJESUNDEHA, J.-—Fernando v. Re-public of Sri Lanka
the notarial and stamp fees for the execution of the deedsof conveyance of the immovable properties are notincluded in the schedules ; but are referred to in thesummary of facts furnished by the Attorney-General.
After a lengthy trial the‘Teamed trial Judge found that theappellant “ had failed to prove that property to the extent ofRs. 340,200 was not acquired from bribery ” and the appellantbeing guilty of the charge sentenced him to undergo a term ofseven years’ rigorous imprisonment and to pay a fine of Rs. 340,200in terms of section 26A of the Bribery Act in default 7 years’rigorous imprisonment. Further the learned trial Judge imposeda penalty of Rs. 340,200. The appellant now appeals from thisconviction and sentence.
In view of the submissions made by the learned Attorney forthe appellant on the burden and the standard of proof it is neces-sary at the very beginning to consider section 23A of the BriberyAct. Section 23A of the Bribery Act states : —
“ 23A. (1) Where a person has or had acquired anyproperty on or after March 1, 1954, and such property—
being money, cannot be or could not have been—
part of his known income or receipts, or
money to which any part of his known receipts has
or had been converted ; or
being property other than money, cannot be or could
not have been—
property acquired with any part of his known in-.come, or
property which is or was part of his known receipts,
property to which any part of his known receipts
has or had been converted,
then, for the purposes of any prosecution under this section,it shall be deemed, until the contrary is proved by him, thatsuch property is or was property which he has or had acquir-ed by bribery or to which he has or had converted anyproperty acquired by him by bribery.
In subsection (1) “income” does not include income
from bribery, and “ receipts ” do not include receipts frombribery.a
A person who is or had been the owner of any pro-perty which is deemed under subsection (1) to be propertywhich he has or had acquired by bribery, or to which he hasor had converted any property acquired by him by bribery
WIJJSSUN'DEHA, J.—Fernando v. Republic of >Sri Lanka
shall be guilty of an ofEence punishable with rigorous impri-sonment for a term of not more than seven years and a finenot exceeding five thousand rupees :
Provided that where such property is or was moneydeposited to the credit of such person’s account in any bankand he satisfies the court that sucn deposit has or had beenmade by any other person without his consent or knowledge,he shall not be guilty of an offence under the precedingprovisions of this subsection.
(6) The law which creates the offence is subsection 3 to section23A. A person who owns property which is deemed to be pro-perty, (a) which he has acquired by bribery or (b) to which helias converted property acquired by bribery is guilty of an offence.Section 90 defines what bribery is. The prosecution then has toprove, beyond reasonable doubt, that the appellant owned suchproperty. Subsection i to to section 23A states.what is deemed tobe property acquired by bribery. Where it is shown that a personto whom the section applies has acquired property, within therequisite period, movable or immovable and it is shown that hecould not have- acquired such property from his known incomeor known receipts or it is shown that it is not property to whichany part of his known receipts has been converted that propertyis deemed to be property (a) acquired from bribery or (b) towhich he has converted property acquired from bribery and thatperson who owns such property is guilty of an offence undersection 23A(3) of the. Act. The offence then depends on the legalpresumption. But that legal presufhption will apply to theproperty and will only last “ until the contrary is proved. by him. ” The legislature has clearly stated by whomthe contrary ” is to be proved. It is not by the prose-cution. It is by “ him ”, that is the person who owns or has ac-quired such property. He knows best how he acquired it. It iswithin his special knowledge. Consequently he is in a position toshew that it was not acquired from bribery. What is it that “ he ”has to prove or, as the learned trial Judge stated, contrary ofwhat ? Contrary of “ that such property is property acquired'byhim by bribery. ” He has to prove that the property was not ac-quired from income or receipts from bribery, i.e., the property wasnot acquired from any gratification accepted in contravention ofPart II of the Bribery Act. In other words, if the considerationfor property had been paid by cheque, the appellant must show
WIJESUNDJEKA, J.—Fernando v. Republic of Sri Lanka
how he obtained that money. If for example the cheque is met byan overdraft and the overdraft is subsequently cleared by somedeposit or deposits received from bribery, depending on the cir-cumstances, that would be a method of converting the moneyobtained by bribery.
It has' been submitted that it is sufficient if the appellantshows that, in addition to the income and receipts the prosecu-tion has proved, he had other sources of income or receiptswithout proof that the source is not a source of bribery. Inother words it is sufficient if the appellant shows that he acquireda property from an overdraft of one lakh from a Bank withoutshowing that it was not a bribe. It is then up to the prosecutionto show beyond reasonable doubt that those sources were them-selves sources of bribery. To start with, this construction isopen to two objections :—Firstly, such a construction is in theteeth of the words of the section. The burden is cast on “ him ”to prove the contrary. Merely naming a source will not provethe contrary viz. that the acquisitions were not from bribery.He must proceed further and establish it. Secondly', such aconstruction will defeat the very purpose for which the sectionwas enacted viz. to stamp out corruption by preventing personsto whom the Act applies from acquiring property unless they areable to show that such property was legitimately acquired. I needcite in support only what Lord Diplock said in a similar situa-tion in construing the policy behind section 14 of the Preventionof Corruption Act of 1961 of Malaysia in Public Prosecutor v.Yuvaraj, (1970) A.C 226 *at 233, “The section is designed tocompel every public servant so to order his affairs that he willnot accept a gift in cash or kind from any member of the publicexcept in circumstances in which he will be able to showclearly that he had legitimate reasons for doing so.”
The question next arises what the standard of proof requiredof such a person is. The legislature states “ unless the contraryis proved by him.” It does not say proved on a balance ofevidence, or beyond reasonable doubt, which are the only twostandards of proof in our law. • Which of these two standardsof proof is required depends on the nature of the proceedingsand also on what is to be proved- In civil proceedings it isgenerally on a balance of evidence ; but of adultery in civilproceedings proof is required beyond reasonable doubt. Incriminal proceedings proof beyond reasonable doubt, is requiredof the prosecution of all the elements that constitute an offence.But where an accused is required to prove an exception thestandard required is proof on a balance of evidence. King v.James Chandrasekera, 44 N.L.R. 97. If the standard of proofrequired of the appellant is anything more than proof on a
Wl.JE.SUNDiSKA, J.—Fernando v. Republic oj Sri Lardca321
balance of evidence of circumstances which will entitle him toan acquittal, then it will cast too heavy a burden on the appellantand is a standard foreign to our Criminal law.
It was further submitted that what is required to be provedis proof of a negative and therefore it is sufficient to create adoubt. To call it a negative is not accurate. If a person hasacquired property not from bribery, as pointed out earlier, it isquite easy for him to discharge that burden by showing howhe acquired such property. Although this requirement iscouched in negative language, what is required is proof of posi-tive facts. It has been urged that what is required of the appel-lant is only to create a doubt whether the properties in questionwere not acquired from bribery. The language of the sectionitself shows that this submission cannot be correct. In the wordsused in Yuvaraj’s case, “if it were anything less than proof ona balance of evidence, it gives no sufficient effect to the reversal■of the ordinary onus of proof that a fact which constitutes aningredient of the offence shall be deemed to exist unless the con-trary is proved ” 1970 A.C. at 232. In- the local law the wordsare “ unless the contrary is proved by him ” which is moreemphatic than the Malaysian section.
It is possible to test the validity of this submission further. Ifthe submission is correct that it is sufficient if the appellantleaves in doubt how he acquired the property, let us .examinewhat the result is. He would be satisfying the requirement ofthe section even though it is left in doubt that he acquired theproperty, not as a result of bribery. But where a fact is leftin doubt it is neither proved nor disproved. But section 3 of theEvidence Ordinance says that “ a fact is not proved when it isneither proved nor disproved. ” Applying this to section 23A (1)of the Act, it will read “such property is deemed to be pro-
perty acquired from bribery unless the contrary is not proved byhim….” which is just the opposite of what is enacted in thesection. Therefore that submission cannot be correct and asit is a requirement to be proved by the appellant which entitleshim to an acquittal, proof required is proof on a balance ofevidence. Vide also Rex v. Chandrasekera, 44 N.L.R. 97 at 125.The learned trial Judge was correct in the view he took that theburden lay on the appellant to rebut the presumption on a balanceof probability that the properties acquired were not acquiredfrom bribery. I with respect, agree with this view taken onthis question in a decision of the court in Rep. v. Wanigasekera,79 (1) N.L.R. 241.
The learned Attorney pointed out that the trial Judge hasstated in two places that the appellant has to prove that certaintransactions or sources “ are free from suspicion or doubt" and
WJJKSUNDEKA, J.—Fernando o. Hepublic of Sri Lanka
“ are free from taint and the character of these payments areabove suspicion.” He submitted that the trial Judge had mis-directed himself and required that the appellant should dischargethe burden by proof beyond reasonable doubt. I will take thefirst instance. The trial Judge stated—“ Then the accused hasto prove the various sources of wealth, besides proving thatanother duty was cast on the accused, viz. that the sources arefree from suspicion or doubt. Now it seems obvious that theaccused has to prove that he had some other sources of incomeor receipts which would account for the acquisitions he madeand the money he received from these sources are not gratifica-tions.” Then it is evident that what the trial Judge meant wasthat the appellant must prove that from the sources he did notreceive gratifications- He stated immediately afterwards-^
“ The quantum of proof in discharging that presumption is nodoubt on a balance of probability…. There is a duty cast onthe court not merely to examine the sources of income but alsoto examine the character of each payment, and it is not enoughfor the accused to leave a doubt in the mind of the court, becauseleaving a doubt alone will not be sufficient.” Here there is nodoubt that the trial Judge had the case of Jayasena, 72 N.L.R. 313,in mind. This is, with respect, a correct statement of the burdenthat lay on the appellant and that is the yardstick applied bythe trial Judge in determining whether the presumption hasbeen rebutted. When the learned trial Judge said in the secondinstance that the appellant “ has to prove these transactions arefree from taint and that the character of these payments are abovesuspicion ” he meant nothing other than to say that “ leaving adoubt alone will not be sufficient ” as in the first passage.Further another sentence illustrates what was meant by“ tainted.” He has stated “ therefore if Ellabodawatte has beenbought from the proceeds of bribery, the Rs. 14,000(i.e., the
money realised from its sale) also is tainted. ” In fact in thecourse of the arguments in this court the learned Attorneys—theDirector of Public Prosecutions more frequently—used the ex-pression “ taint ” and “ suspicion ” in this sense. Therefore thereis no merit in this submission. Consequently there is absolutelyno reason for me to consider the wealth of decisions cited show-ing that where there is a misdirection on the burden of -proof,there should be a retrial.
Then the prosecution has to prove beyond reasonable doubt
that the appellant during the relevant period acquired theproperties enumerated in schedule A and the money in scheduleB and (b) that the known income and the known receipts of theappellant did not amount to the sum total of the cash and theconsideration and other expenses paid for the properties. This
WIJESUNDERA, J.—Fernando v. Republic of Sri Lanka
task is simple. Once this is done, unless the appellant satisfiesthe court that these properties were not acquired by bribery ona balance of probability, he would be guilty of the offence. Thismeans that if the appellant relies on a receipt from a firm AB,he has to show that (i) it was received and (ii) it was not frombribery, both on a balance of evidence. If he fails in either,he would be guilty of the offence.
The appellant was residing during this time at Uyana, Mora-tuwa with a wife and five children in a house paying a modestrent of Rs. 125 per month. In 1961 he started a business calledEastern Trades & Agencies in partnership with his father andbrother. There were no profits. In 1966 the appellant sold thegoodwill to a Mr. Gunawardena for Rs. 2,000. From December1967 he joined Ceylon Insurance Company at a monthly salaryof Rs. 800. From June 1968 to October 1968 he was in theCeylon Shipping Agency. From November 1968 he wasemployed up to 23.4.1978 as a Shipping Director of the FreeLanka Trading Co. with no monthly salary but received, one-third..profits from the Shipping Department. The income derived hetestified was used for his expenses. When the appellantsevered connections with this firm on the 23rd April, 1970, he.accepted a sum of Rs. 1,150 in Tull settlement of all dues.
On 31.3.1968 the appellant had sworn an affidavit in DC.Colombo 26334/S when he was noticed to appear to be examinedunder section 219 of the Civil Procedure Code. That was anaction filed by Messrs. Moosajees, Ltd. to recover a sum ofRs- 2,247.85 from the appellant. In that affidavit he had statedthat he was possessed of no immovable, property or movableproperty other than the personal belongings. The action filedby Messrs. Moosajees, Ltd. was settled on 23.1.71. There werethree other actions against the appellant filed prior to the datehe was appointed a Director of the Insurance Corporation. TheIndustrial Finance Company Ltd. filed action No. 29085 in D.C.Colombo to recover money due from the appellant on a promis-sory note for Rs. 2,000 dated 17.6.1967. This action was settledby 12.9.1970 after paying Rs. 1,771.32. The Peoples’ Bank filedaction against the appellant, his father, and brother in respectof debts incurred in their business. The Finance Company Ltd.of Union Place, Colombo 2, filed action No. 62769/M in DistrictCourt, Colombo to recover a sum of Rs. 2,709.62 in respect of aVauxhall car or the return of the car. This case was also settledin 1971. The appellant had two Bank accounts one at the People’sBank, the other at the Bank of Ceylon both of which were closedbefore he was appointed a Director of the Corporation. How-ever out of all the earnings prior to June 1970, it is his clearadmission, at the time he joined the corporation in June 1970,
WIJESUN.DKKA, J.—Fernando v. Republic of Sri Lanka
he had with him a sum of about Rs. 2,000 or Rs. 3,000 which hehad -saved. Then to determine how the acquisitions were madethe starting point is June 1970.
The prosecution duly proved that as Vic-e Chairman of theInsurance Corporation his duties included attending to petitionsand complaints ; recruitment, appointment and dismissal ofemployees ; supervisory functions in connection with generalclaims and specially motor claims; workmen’s compensationclaims. The appellant whilst in that post acquired the propertiesin the two schedules. It transpired that in fact the appellant hadpurchased only a half share of Mount Hunnasgiriya Estate, theother half share being bought by one S. H. Maharoof, Negombo.As this purchase was subject to a mortgage the amount investedby the appellant was Rs. 50,000. The total investments in thetwo schedules amount to Rs. 542,079. To this sum must be addedthe notarial fees incurred in executing the deeds of transfer.The fees total upto Rs. 28,683, the grand total of these invest-ments being Rs. 570,762 in sixteen months. The appellant statedin his explanation that (i) he had an income of Rs. 27,500 fromthe corporation ; Free Lanka Trading Company gave himRs. 30,000 and the firm of <Rotan-Vanda Associates, a sum OfRs. 20,300. (ii) the profits obtained by sale of three carsamounted to Rs. 29,000 during this period and (iii) a number ofloans amounting to Rs. 463,000, were obtained from a Bank,money lending firms or agencies. The appellant gave evidenceand produced the explanation. After he was appointed Directorhe opened a Bank account No. F007 or F7 which will be calledhis personal account in the Hatton National Bank with a depositof Rs. 1,000 in July 1970. After he bought Hunnasgiriya in part-nership with Maharoof he opened an account for that estateNo. F029 or F29 in the same bank on 23rd January, 1971. Heproduced the bank statements of the estate account F29 and ofhis personal account F7. He was cross examined for a numberof days.
It was the submission of the appellant’s Attorney that the crossexamination of the appellant was unduly long and unfair, becausethe questions were repeated and documents were not shown tothe witness. The learned Attorney referred to section 120(61 ofthe Evidence Ordinance which empowered the presiding Judgeto limit the cross-examination. Section 120 (6) is in the follow-ing terms :—“ … .that so far as the cross examination relates tothe credit of the accused, the court may limit the cross examina-tion to such extent as it thinks prooer, although the proposedcross-examination might be permissible in the case of any otherwitness. ” It is apparent that the power to limit the cross-examina-tion, permissible in the case of other witnesses, is only regarding
WUrcSUNDEKA, J.—■t'ern'indo v. licpulAic of Sri Lattkn
the credit of the accused as a witness. The power to limit thecross-examination in other matters is the same as in the case ofany other witnesses. The appellant gave evidence in order to-prove that the properties acquired for which he paid over halfa million rupees were not acquired from bribery and stated that,in addition to the loans and income already referred to, he, received or obtained a number of loans in small sums e.g.Rs. 1,500 from one Shelton Perera and at times savings from hiswife to which reference will be made in due course.
He produced the bank statements of his }>ersonal and estateaccounts. So that, submitted the Director of Public Prosecutions,it became necessary to cross-examine him on the deposits andwithdrawals in the two accounts in detail. The complexity of thetransactions, the different answers of the appellant on variousissues arising from the deposits necessitated a detailed cross-examination.
It was contended on behalf <of the appellant that the State wasnot entitled to cross-examine the' appellant on the fairly largeamounts, which have regularly, been deposited both in his perso-nal and in the estate account because he had not been called upon-to explain those deposits in the notices under section 23A(4),. Ido not think that the contention is correct. To establish thatthe properties in question were legitimately acquired the-appellant spoke of various loans or transactions from which hereceived money. When the prosecution asked the appellantwhat a particular deposit was, the appellant was not beingquestioned on>the basis that that money formed the subjectmatter of the charge in that it was given as property in ,theschedules of the indictment, but rather to show that .(a) thatdeposit could not be money obtained legitimately and (b) suchdeposits constituted the consideration for the properties in theseschedules. These were being used as items of evidence to showthat the contention of the appellant cannot be accepted. To.take an example it was proved and accepted by. the appellantthat he paid a sum of Rs. 60,000 in late January 1971 by chequeas part of the consideration for Hunnasgiriya. It was thennecessary to examine how this cheque was met and that couldonly have been done by reference to the account for January 1971at least. In fact the learned ’Attorney for the appellant had toconcede at one stage that it iWais so. Except for April and May1971 during the other months some pavment'or other had beenmade for the acquisitions in question by cheque and thereforeIt was necessary to cross-examine the appellant on those pay-ments. Resides the appellant Contended that he saved moneyfrom his salary. His salary was credited to his personal account.
-■32(1' WXTBStWDEUA, J.—J>'cruando Ita/juMir of .Sri J-.ritUu
'Thereupon the Director of Public Prosecution cross-examinedihim on the deposits and withdrawals and proved that no part;.>pf his salary was available for that purpose.
' "It was urged‘that in I'.ie cross-examination the questions were'Repeated'to'the prejudice of the appellant. The cross-exami-hation’lastbd 15 days. It started on the ,22nd October, 1974 ;illestt dales' were -31st October and 1st November ; then 8thNovember ; thereafter 18th and 19th November ; next 3rd, 4thana 5th December; followed by two days 17th and. 18thDecember.^ TVie cross-examination then went on to JanuaryT5th. 23rd 'and ’Eebruary 7th and 27th, 197.5.. It was to acco-’th'odate tlie two-’.‘Attorneys and sometimes, on the, special'application' of an Attorney that the trial ..was postponed in this' manner-. 'ButPmust hasten to add that there is no better methodto’dispose of a criminal case than to.hear it from day to day. Inseveral places t’ne appellant stated that he would be able toanswer questions “ on the next day ” or after checking on someother documents. So he was questioned again and in some:*insfcm£es he-did answer on. the next day. Consequently the' Director of-Public Prosecutions submitted that he had to revertto that topic again. The transactions of the appellant are in-volved and complicated as will appear soon and have takenplace within a short time. Consequently there had been re-
’petition some of which could have been avoided. It is up to the•court' of trial to interfere as seems best in the circumstances.But it is to be remembered that repetition “ when used
'.sparingly and against a witness who in the cross-examiner’s■belief is-falsifying, there ought not to be judicial interference;•for there is-perhaps none of these lesser expedients which hasso keen and striking an efficiency, when employed by skilful•hands in extracting the truth and exposing the lie. ” Field, LawEvidence, Vol. VI, p. 4792.
The next charge levelled against the cross-examination is thatVat times, the appellant was. cross-examined without thedocuments being shown to^bim; in spite of his answers “ I will
be able to explain that, if I see tfhe cheque. ’’ The Director ofE’ublic Prosecution stated that all the cheques were obtained
; from the bank along with the paying in slips on various datesand every one of them was shown to the appellant and examinedvhy him. There have been occasions when documents were notavailable to be s'nown to him, and he had been questioned to•start with without the documents being shown. But the docu-ments concerned were invariably cheques. They were '.his.own cheques and their counterfoils were with him or available…to him. ; These documents were subsequently Aown to him. He
WIJ KSUN DEKA, X.–Fernando v. liepahlie of Hri Lanka327
had in May 1972 furnished a written explanation with schedules,showing the loans and expenditure. He had made statementsto the Bribery Commissioner about the deposits. He thereforemust have been well aware of his cheques and the deposits inhis bank. On a perusal, of the record the appellant had beengiven an opportunity of examining all the documents' producedby the prosecution. – If I understood the learned Attorney for theappellant correctly, when the Director ot Public Prosecutionswas answering the charges levelled against the cross-examina-tion he did submit that “he was not pressing that matter. *
What one tends to forget in this case is that the law casts aburden on the appellant to rebut a presumption, relating toproperties worth over half a million and once evidence1 wasgiven for that purpose, the prosecution had to cross-examinehim on all those transactions.'* So it had to be long.* I thereforedo not think that the cross-examination was unfair.; u
The learned Attorney submitted that the appellant has byleading evidence, on a balance of probability, proved that thoseproperties were not acquired,:by bribery. The .first propertyMount Hunnasgiriya was acquired on the 25th January, 1971,jforKs. 150,000, the notarial charges being Rs. 5,253. it .was boughtby the appellant and Maharoof. ,Of the consideration Es. 50,001),was secured by a mortgage of the same date.in favour of the.seller, the Procurator-General of the Oblates of Mary Imma-culate ; and of the balance, Rs. 60,000 was paid by cheque draymby the appellant and the rest in cash, Rs. 25,000 by Maharoof.and Rs. 15,000 advance paid by the appellant in December ’7Q.The appellant being co-owner his investment on that property"was Rs. 52,625.50. The second property Elabodawattz is a land)at Moratuwa bought by the appellant for Rs. 18,000 on .16,2.71,the notarial charges being Rs. 541. So that by this date the-appellant had invested a sum of Rs. 71,167.50. on these two pro-perties. Both attorneys made, their submissions on these ’two-properties together. The finding of the trial Judge is “ Rs. 50,00(1for Hunnasgiriya, Rs. 18,000 for Elabodawatte were all taintedand which I consider proceeds from bribery. ”1 '
By this date the available ■ sources of income and receipts onthe evidence of the appellant himself were (a) the Rs. 2,000 or3,000 which the appellant said he had saved up to the date he wasappointed Director, (b) his earhings from the corporation which,inclusive of salary for February 1971, amounted to Rs. 12,400, (c)Rs. 10,000 by cheque from Free Lanka Trading Co. paid on3.2.71 and Rs. 5,000 In cash paid a few days before, (d) Rs. 20,300from Rotan-Vanda Associates (c) Rs. 20,000 loan fromBartleet & Co., (/) a loan of Rs. 5,000 from Hatton National Bank
Wr.TESUNDKRA, J.—Fernando v. Republic of Sri Lanka
_____ _ —
apd' (g) .a loan of Rs. 10,000 from Maharoof totalling up to.fes) .'.84.000.' .These need to be examined one by one. Of the first•there is no dispute. Next in order is t’ne Corporation Income.His salary ,as Director was Rs. 1,000 and as Vice Chairman^s. 1,750.' In his explanation to the Bribery Commissioner under^ction 23A(4). he had stated that nearly half the salary wassave.d. But the entirety of the salary was paid into the Bank.Trie' State contended that he did not save anything from his
salajry. .Trie "appellant was cross-examined regarding everywithdrawal during the early months in this account with this<en‘dviin .view. It transpired in cross-examination that in July
970, in the financial straits he was in, he had paid sums•Rs. 125, 150 and 155 to three clubs, spent on a cooker-valued at• Rs.. 2,584.00 and altogether .drawn Rs. 5,924.50sending’the month with a debit balance of Rs. 2,238.75. He haddeposited other than his salary cheque and t'ne opening amount,a(sum of Rs, 1,700. In the next month he had withdrawn Rs. 5,130''and^'deposited‘ Rs. 4,265 ending the month inclusive of Bank"cjiarges sind so forth with a debit of Rs. 3,945.44. In September heHiad'.lwithdrawn. Rs. 5,469 and deposited Rs. 1,200 and another,iRk‘ 5,000, a loan from the bank. It was only when the Rs. 5,000‘was credited did the account show a credit balance, vis., Rs. 98.81.The bank statement revealed a number of cheques for amountslike Rs. 50 whidh were cashed at a pharmacy called Nathan’sat Moratuwa. It was the appellant’s evidence in cross exami-nation that these small sums were for his home expenses andit was shown that the entirety of his salary and more was sospent. For October he has spent Rs. 2,087.50 on his personal.expenses and paid Rs. 1,000 to a Paint Co. November the total isRs. 4,170. December, January and February ’71 the amounts areRs. 1,750 ; 1,100 ; 2,532. Then the bank statement F7 coupled with•his evidence in cross-examination, shows that he has utilizedon his expenses nearly Rs. 30,000, from July ’70 to February ’71,
. inclusive of Rs. 1,322.97 paid to Industrial Finance, Rs. 20,000 toMoosajees, Rs. 1,000 Mercantile Credit, Rs. 1,000 to a PaintCompany, the money for purchase of the cooker, and a loanof Rs. 1,500 to a Mrs. Wickremasinghe. There is no evidence that: this loan was returned. So that his salary was not available forinvestment, unless he or his wife had saved from his drawings.He stated that his wife saved Rs. 4,000 in these eight months. Thewife not being a witness the trial Judge did not accept it.
Next is the Loan -from the Hatton National Bank of Rs. 5,000.
iHis personal account F7 as already referred to was overdrawnin the first few months. The overdraft limit was also beingincreased and on the 14th September, 1970, the bank instead ofHie overdrafts, gave him a loan of Rs. 5,000. This money was
WUESUNDERA, J.—Fernando v. Republic of Sri Lanka
consumed to settle the moneys overdrawn and for the first timethere was a credit balance at the end of that month of Rs. 98.81.So that the Rs. 5,000 could not have been available for anyinvestment.-
The loan of Rs. .10,000 from Maharoof. The appellant statedthat of the Rs. 18,000 paid for Elabodawatte Rs. 10,000 was a loanfrom Maharoof. Next he took up the position that it was not aloan but Rs. 10,000 which Maharoof gave him for transferring apermit he obtained for a Jeep to Maharoof. Ultimately hestated that it was not the money for the Jeep but it was a loan.It is clear then that on his own evidence he was shifting hisposition. But Maharoof denied that he gave a loan of Rs. 10,000to the appellant for this purpose or a sum of Rs. 10,000 for a Jeep.Further in his explanation to the Bribery Commissioner theappellant stated that the money for the purchase of Elabodawattecame from his earnings from Free Lanka Trading Co. for 1969,’70, ’71 and the salary from the corporation. What happened tohis salary has already been shown. He admitted that the moneyfrom Free Lanka Trading Co. was drawn for his expenses andin June 1970 all he,had from those earnings was a sum ofRs. 2,000. Therefore leaving aside the earnings for 1971 whichwill be examined, the evidence of the appellant is contradictoryof the explanation and is contradicted by his own witnessMaharoof, his partner in business and a co-director of GamwellaTea & Rubber Co. A court then cannot conclude that the appel-lant received this money from Maharoof.lRs. 20,000 from Bartleet & Co:* Bartleet & Co. were the agentswho negotiated the sale of the Huhnasgiriya Estate. The appellantstated that he saw Mr. Mallory Wijesinghe and requested that thisloan be granted for .this purpose and he agreed. Rs. 20,000 wascredited to the account of the. appellant on the 22nd of January,1971. The appellant also produced a letter wherein the firm hadstated that although they “ had suspended granting advances weare according to your request treating this as a special case.” Theloan was to be repaid in 10 monthly instalments with interestOnly one instalment was paid. It was given on the appellantsigning a promissory note. No counterfoil of the promissory note,no book of promissory notes was produced. There was' no crop-bond taken as it was usual for the firm to do when grantingsuch loans. Ultimately Bartleets dn July 1973 sued the appe-llant. An Accountant from Bartleets was called but he was notable to say what the special considerations mentioned in theletter were. It is correct that only Mr. Mallory Wijesinghe couldhave explained what they were. Although he was not a witness,it was obvious that a consideration was that the; appellant wasthe Vice Chairman of the Insurance Corporation, however tem-
A 63688 (80/11)
Wr.iJ ISUNDKKA, —Fernanda v. Republic oj .V/7 Laulca
porary such office may be. But Bartleets were the brokers whonegotiated this sale and it is reasonable to presume that thisloan was rather to advance the sale of the estate. Regard mustalso be had to the quantum of the loan. It was only Rs. 20,000.Even if Mr. Wijesinghe was called he would have said that andif there was any other reason the prosecution would have ques-tioned the appellant. There were no such questions. The burdenbeing on the appellant to prove tfhat this loan was not a bribe,there is sufficient evidence on which the appellant has dischargedthat burden on a balance of probability. The trial 'Judge wassurmising when he observed that Bartleets would have written.this off as a bad debt if t'nere were no investigations by theBribery Commissioner.
Rs. 15,000 frovi Free Lanka Trading Company. TheProprietors of the Free Lanka Trading Company wereJustin and Aloysius. They were in the Export and Import tradeand in addition had a Shipping department. The appellant wasemployed in this company and before he joined the corporationwas in charge of this department. There was some oral agreementwhereby the appellant was to be given 1/3 profits from theshipping department. The appellant had drawn moneys as andwhen he needed money for his expenses and by March 1970 hehad overdrawn his account to the extent of Rs. 15,344.87. Whenhe severed connections with this firm on the 23rd April, 1970, hewas paid Rs. 1,150 in full settlement of all claims as evidencedby a receipt produced by the appellant himself. However fromall this money he had only Rs. 2,000 in June 1970. The appellantstated that on 3.2.71 he received, from this firm a sum ofRs: 15,000 as 1/3 share of profits from these ships S. S. Pana-giotis Xilas, S. V. Lucy and S'. S. Captain Pantalis. The appel-lant produced another receipt in support giving 'these details.Rs. 15,000 was paid Rs. 10,000 by cheques, and Rs. 5,000 by casha few days before 3:21.71.,This money was used for the purchaseof Hunnasgiriya. When the payment is examined it transpiresthat the account of the appellant was overdrawn to the extentof Rs. 15,344.87 by 31.3.70 and a further sum of Rs. 1,150 wasagain paid on 3.2.71. The net profit of the shipping departmentfrom these three named ships and from other ships, isRs. 27,181.87 for the year which ended on 31.3.71. But the appel-lant was paid as 1/3 share from three ships on 3.2.71 a sum ofRs. 15,000. The accountant of the firm, Dharmalingam aChartered Accountant, was unable to say on what basis thisamount was paid except that it was a rough calculation. Atanother stage he said “ it was paid in excess.” To show thatmoney was due and this payment was made, the ledger wasproduced. This showed that the income consisted of the agencycharges amounting to Rs. 23,292.05 from all the ships and FEECS
WLJ l£SUNrl->EKA, J.—Fernando o. Hc/tublic of Sri LankaJWI
at the rate prevailing then, 44% of Rs. 23,292.05 has been calcu-lated at Rs. 35,393.44, written in pencil and thereby arrived atthe gross income of Rs. 58,686.43. It is from this figure that thenet profit of Rs. 27,181.09 was calculated. But the FEECS upona correct calculation amounts to Rs. 10,343.92 and the grossincome is then Rs. 33.641. According to the accountant theworking expenses were Rs. 31,50461. The true net profit isRs. 2,137 and the profit from the three ships must amount tomuch less and the one third share will not be more than a fewhundred rupees. In the previous year the profits from the ship-ping department was Rs. 3,420.39 and the appellant's share wasRs. 1,140.13. In the profit and loss account for the year ended
the appellant although he severed connections with thefirm from 23.4.70 has been paid a sum of Rs. 13,590.43 for thatyear as being the Manager’s 1/3 share. It is after giving creditto the appellant for this figure the profit was calculated atRs. 27,181.87. It must be noted that in the previous year whenthe appellant was in the firm he was not given that allowance.In fact the evidence of the Accountant, appellant’s employeeat one stage and his witness, is that there was no manager. Inthis year when the appellant was working Director and ViceChairman of the Corporation he has been paid Rs. 13,590.43 formanaging a department at Free Lanka Trading Co. together withRs. 15,000 as profit ! The accounts become still more complicatedbecause in the Balance Sheet for that year the appellant isshown as a debtor in sum of Rs. It), 154.44 although there is aseparate place for Trade debtors.
Then the documents that the appellant produced are con-tradictory of one another : — (a) The receipt says that Rs. 15,000is 1/3 profit from 3 ships due to him, but the ledger does not$how that there was in fact a profit of this amount, (b) 1hisRs. 15,000 is money due to the appellant, and is an addition tothe Manager’s share of profits which is a new position regardingthe reimbursements of the appellant, but the balance sheetshows him as a debtor. There are obvious errors in the computa-tion of the accounts and the appellant was bold enough to pro-duce these accounts. Therefore the correctness of the accountsproduced on behalf of the appellant is in grave doubt.
It is the complaint of the appellant’s Attorney that the trialjudge failed to consider Aloysius’s evidence. Aloysius gaveevidence after the accountant of the firm. I have already referredto the evidence of the accountant. Aloysius was also a defencewitness. He took up several positions regarding the payment ofthis Rs. 15,000. He at first stated that there was an understandingthat the appellant was to be given 1/3 share of the profits fromthe shipping department. He then stated that there was was a
WIJESUKD12HA, J.—Fernando v. Republic oj Sri Lanka
gentlemen’s agreement that the appellant was to be paid “ acommission as he did the entire shipping work But later hestated that the appellant had asked for money and he orderedthat the money be given because he “ felt an obligation to givethe money At another stage in answer to Court he stated ihatit was not paid as 1/3 share of profits from the 3 ships. Stilllater he said the agreement was tc give not strictly 1'3 sharebut a share of the shipping department as long as it exists. Thesedifferent positions are inconsistent and contradictory of theevidence (a) of the witness himself (b) of the appellant, and
contradictory of what is stated in the receipt produced bythe appellant and of the documents. By this evidence of Aloysiusthe burden that lay on the appellant could never have been dis-charged. This evidence therefore could have accrued not to theadvantage of the appellant but to his disadvantage and conse-quently no prejudice has been caused to the appellant by thefailure of the trial judge to consider the evidence. One cannothelp asking the question whether this is not a cover for someactivity of the appellant, which he does not want to disclose andas the trial judge said “ whether the accused was sending backhis own money ” and the finding of the learned trial judge is theonly correct and rational finding.
otan Vandor Associates Rs. 20,300. Rotan Vandor Associatesare “ a ship broking firm, Shipping Agents, Charter agentsand brokers ” according to the appellant. The parters areShelton Perera and Vandersyl. Originally the firm was atSulaiman Terrace and later shifted to Church Street, Fort. Inthe explanation furnished by the appellant he said hereceived Rs. 20,300 from this firm in seven cheques whosenumbers, amounts and dates he gave. The attorney for thedefence in his opening of the defence stated that this was'- acommission from the firm. The appellant stated so in evidenceand that this sum was received by cheque details of which heagain gave and stated they were credited to his account F7. Hestated that he gave no receipts. The appellant further statedthat be got the numbers of the cheques from the books of thefirm and that the cheques were in his name. It is then obviousthat on the day he furnished the explanation the books of thefirm were available to him. Cheques as in his explanation and inhis evidence, drawn on the Bank of Ceylon, Foreign. Departmentare : —
No. 872801 of 15.9.70 for Rs. 400No. 837598 of 20.9.70 for Rs. 1,000No. 872808 of 3.10.70 for Rs. 600No. 872819 of 12.10.70 for Rs. 500No. 872837 of 4.11.70 for Rs. 3,000
WIJESTJNDERA, J.—Fernando v. Republic of Sri Lanka
No. 872885 of 3.12.70 for Rs. 6,800No. 872894 of 21.1.70 for Rs. 8,000
The appellant then in cross examination was confronted withhis Bank statement F7 and it was found that only the last cheque•of Rs. 8,000 had been credited to this account. Then ttie appel-lant took up the position that the cheques were written out notin his name, but instead of crediting it into his account he en-dorsed the cheque and gave it to the firm who gave him themoney. On a subsequent date the prosecution confronted himwith the cheques. Then it was found that cheque No. 872801was for Rs. 1,747.50 drawn on 24.9 70 in favour of the PostmasterGeneral. Cheque No. 872885 was also in favour of the Post-master General on 12.2.71 for 1,321.50. Cheque No. 837598is a cash cheque endorsed by Cooke the Accountant for Rs. 1,000on 29.9.70. Cheque No. 872808 for Rs. 600 on 3.10.70 was a cashcheque endorsed by Cooke. Cheque No. 872837 for Rs. 3,000drawn on 14.11.70 is a cash cheque endorsed by one Perera, aperson unknown to the appellant.
When confronted with these cheques he then_said that heremembered signing some vouchers and “ these particulars wereread to me from the ledger ”, having first said that he did notgive any receipts and he got the numbers from the books andCooke had the books. Throughout his evidence he maintainedthat the books were available to him and that books were beinginspected by the Accountants to make a reconciliation or cashflow statement and that such a statement will be produced. Nosuch statement was ever produced. The books were said tobe lost later .on. He said he will be calling Shelton Perera but“ summons could not be served on him He was never calledalthough a special date was obtained to call him as the onlydefence witness left.
The appellant also had the balance sheet of the company pro-duced. It is dated 16th July, 1973. So that books were available til]then. Since 31.3.71 the accounts of this firm had not been audited.In that balance sheet the appellant is shown as a debtor. In facthe started the evidence v,rith the assertion that this was a com-mission due and paid to him. In the balance sheet there is noprofit and loss account. No cash book, no ledger is available forinspection. Cooke, the Accountant, stated that he did not knowwhy the payments were made and did not know where to chargethis payment. If this was a commission it should have been sepa-rately shown.- Further Cooke was employed in that firm from itsinception and he stated that there was no one employed for thepurpose of canvassing business. The appellant did not work toenable him to earn a commission.
WIJE SUN JL) EK A, J.—Jb'crnamLo v. Republic of tiri Lanka
In evidence in chief Cooke produced on 23.5.75 seven receiptsfor the seven payments with the cheque numbers and all theseven state these were advance payments “ for professional ser-vices rendered and business introduced signed by the appellant.These receipts he stated were written at the request of SheltonPerera and signed by the appellant “ Q. Can it be after 1974 ?'A. May be. It was after the case started. ” In the receipts thenumbers of the cheques given are different from those in theexplanation and the evidence of the appellant. In respect of thecheque for—
Rs. 6,800 the No. in the receipt is 872855
Rs. 400 the No. in the receipt is 872806
Rs. 600 the No. in the receipt is 872807
Rs. 500 the No. in the receipt is 872815.
It has to be borne in mind that the appellant must prove firstthat he received this money and then it is not from bribery. Ona consideration of all this material it is evident that when he sayshe received the money from the first six cheques it is open to thegravest doubt. The finding of the trial Judge is “ under all thesecircumstances it can be inferred that these payments were notin fact made- ” It is obvious here he is referring to the first sixpayments. He dealt with the last payment, 2 paragraphs laterand said “ it can be safely proved that ” at least Rs. 8,000 whichwent into his account shows that they were proceeds of bribery.So that in his view that last payment was received but it was incontravention of the Bribery Act. Having dealt with this parti-cular payment, he proceeded to say that “ that payments werereceived in contravention of sections 17 and 20 of the BriberyAct. ” There is no inconsistency in this statement. He was referr-ing to the last payment. He of course might have been moreaccurate and it was not necessary that there should be a findingon sections 17 and 20 of the Bribery Act.
The prosecution brought out the fact that the the appellanthad not declared this “ income ” in his tax returns for the year72/73 anywhere and that he was questioned by the Income Taxauthorities about the large ^deposits into his bank account. Theprosecuting attorney asked the appellant whether he gave theexplanation given in evidence that some of these deposits wasmoney he received from Rotan Vandor Associates to Mr. Saba-pathy of the Income Tax. The answer was “ I cannot remember.It was a long interview. ” Then the record reads : “.Counsel forthe accused moves the following fact to be recorded : that theprosecution will be calling Mr. Sabapathy of the Income TaxDepartment. ” I will proceed on the basis that the prosecutingattorney did give that undertaking. The next question was “ when
W'TJESU’XDERA, J.—Fernando i Reimblic of Sri Lanka3.')5
you were interviewed by Mr. Sabapathy and when you sought toexplain the cash deposits and cheques did you ever disclose toMr. Sabapathy that some of these cash deposits represent moniesthat you got on cheques given to you by Rotan Vandor Associates?A. I cannot remember. ” Mr. Sabapathy was not called and objec-tion has been taken by the learned attorney for the appellantthat “ the trial Judge acted on this evidence although Mr. Saba-pathy was not called to prove the contradiction. ”
The trial Judge formed the view, from the answers given incourt thereafter, that the appellant did admit that he did nottell the Tax Officer that there were deposits from Rotan VandorAssociates. So far as he was concerned then there was no neces-sity to call Mr. Sabapathy. Everybody at the trial appears tohave acted on the footing that Mr. Sabapathy could be called.The Director of Public Prosecutions submitted that there was nonecessity to call Mr. Sabapathy as the appellant admitted it. Inany event he could not have called Mr. Sabapathy in view of theprovisions of section 124 of the Inland Revenue Act, No. 4 of1963, which is same as the provision found in Cap. "242. Thissection provides that no Tax Officer can disclose anything in thetax files ‘‘except to produce any documents or to disclose anyinformation to a court for the purpose of carrying into effect theprovisions of the Inland Revenue Act”. These proceedings notbeing under the Inland Revenue Act the Tax Officer could nothave been called unless there was some other special provisionoverriding this section. Section 4(1) (d) of the Bribery Actrequires the Commissioner of Inland Revenue to furnish allinformation he has regarding the tax affairs of the appellant tothe Bribery Commissioner who is required to treat all such in-formation “ with the strictest secrecy and shall not divulge suchinformation to any person other than a court or an officer engagedin any prosecution for bribery The Bribery Act does not statehow the information shall be placed before court. But it providesin section 5 that a record of the investigations shall be furnishedto the Attorney-General and this record must necessarily includethe information from the Commissioner of Inland Revenue. Con-sequently it is in the hands of the officer engaged in theprosecution.
The learned Attorney for the appellant submitted that themethod contemplated was to place .the information received inthe hands of the Judge, again if I understood him right by theBribery Commissioner. The appellant would then not have anopportunity of answering any questions that may arise unlessthe judge decided to question him before acting on it. The prose-cuting officer may question the assessee i.e., the appellant on any
336WIJESUNDERA, J.—Fernando v. Republic of Sri Lanka
relevant matters. That is how information is placed before aCourt. It may not be strictly in terms of the section, but it is theleast objectionable. No undertaking should have been given andno undertaking sought that Sa'bapathy would be called unlessof course the appellant required the tax officer’s evidence. Noquestion should have been asked and no questions allowed on thebasis that Sabapathy could and would be called. As it was at theinstance of the Attorney for the defence that the undertakingwas given and recorded I do not think that any complaint cannow be made.
In any event irrespective of this evidence, the trial Judge wouldhave come to the same conclusion. The trial Judge stated that“ these payments were in fact not made to the accused. The posi-tion is strengthened as these receipts were not disclosed to theIncome Tax authorities. ” The trial Judge was utilizing the fai-lure of the appellant to disclose these receipts as another reasonto strengthen the belief he has already formed. It was, I stress,only an additional reason. Consequently this is not a ground forinterfering with this conviction.
Consequently the finding of the trial Judge on the Rs. 50,000for purchase of Hunnasgiriya and Rs. 18,000 for the purchaseof Elabodawatte need only be altered to “ Rs. 30,000 for thepurchase of Hunnasgiriya and Rs. 18,000 for the purchase ofElabodawatte. ”
The next item is the Gamawella transaction. This consists ofthe purchase of Gamawella shares and the deposit of Rs. 50,000in the Marginal Account in the Hatton National Bank. These twoitems have to be considered together. The appellant acquired8,423 shares at Rs. 2.50 per share in the Gamawella Tea & RubberCo. during July and August 1971 for a sum of'Rs. 21,057.50.During that time Mr. S. E. R. Perera purchased 7,100 shares forRs. 18,288.50 and Maharoof 5,165 for Rs. 12,750. Mr. Perera’s moneywas paid direct to Somerville & Co. and this Court is not concern-ed with that payment or purchase. The appellant paid forMaharoof’s shares on Maharoof giving the appellant Rs. 25,000by cheque and Rs. 7,500 in cash. In order to take over GamawellaTea & Rubber Co. it became necessary to pay off Whittalls Estatesand Agencies. For this purpose a sum of Rs. 80,000 had to bedeposited in Hatton National Bank. This was done by three pay-ments Rs. 45,000, Rs- 10,000, Rs. 25,000 on the 20th and 25th July.The nominee of Whittalls resigned from the Board of Directorsand Maharoof and the appellant were appointed to the Board on
appellant, the Chairman. Thereupon the agency wastransferred to Consolidated Commercial Agencies Ltd. The
WIJEiSUNDERA, ,T.—Fernando v. Republic of Sri Lanka
■Board made arrangements with the Mercantile Bank to extend•overdraft facilities up to Bs. 100,000 to the Gamawella Tea &Rubber Co. The money deposited in the Marginal Accountaccording to the appellant comprised of the Rs. 32,500 given byMaharoof, Rs. 45,000 loan from Mubarak Thaha and Rs. 2,500 bythe appellant. The appellant paid by his cheques for Maharoof’sshares. Within a few weeks of the completion of these transac-tions the appellant withdrew the entirety of Rs. 80,000, withMaharoof’s consent, and utilized a part of it for the next invest-ment.
The appellant in his explanation stated that the monies forthese, the Gamawella transaction, were derived from (a) thesale of cars, a business he was doing, (b) bank overdraft, (c)shipping income (d) corporation money, (e) Thaha’s money. Inevidence he referred to an additional source of income, viz.proceeds from the sales of tea frdrn Hunnasgiriya in a sum ofnearly Rs. 41,000. There has been considerable evidence andcross-examination on this transaction. But the only finding ofthe trial,Judge in this connection is about the profits derived fromthe sale of two cars. It is unnecessary to set out those involvedtransactions. It is sufficient to state that the submission of thelearned Attorney that the presumption does not attach to theprofits from the sale of cars is correct because the appellant wasnot asked to account for how he purchased these two cars.
Further the appellant has stated that he utilised Rs. 41,000being the income from Hunnasgiriya for this transaction. Oncethe presumption in respect of Hunnasgiriya has not been dis-placed in view of section 23A (2) the income from Hunnasgiriyais income from bribery and cannot be computed in accounting forthe Gamawella transaction. As the trial Judge has failed to cometo a finding on this transaction, it is unnecessary to state anythingfurther.
The appellant in evidence took up the position that the moneysdrawn from the Marginal Account, viz., Rs. 80,000 were utilizedfor the next investment. In fact the trial Judge in his order hasaccepted it. But if the appellant does hot rebut the presumptionin respect of the Rs. 80,000 and it is found that he utilized it forthe next purchase, Yelverton Estate, in view of section 23A(2)this Rs. 80,000 cannot be set off from the consideration paid forthat Estate as being duly accounted for. Fortunately for theappellant there is no concrete finding on the Gamawella trans-action. In the face of these admissions I do not see the necessityof retrying the appellant as the learned Attorney repeatedlyurged.
WIJESUND13RA, »F.—Fernando v. Republic oj Sri Lanka
, The next purchase by the appellant is a land called Madangaha-watte. This was bought out of the proceeds of the sale ofElabodawatte for Rs. 14,000. Consequently as Elabodawatte isdeemed to be property acquired from bribery, the proceeds ofsale will be such money and the presumption will apply toMadangahawatte as well. But the consideration paid for Madan-gahawatte cannot be included in the value of the properties inrespect of which the appellant has failed to displace the presump-tion if the consideration paid for Elabodawatte is included in it.It has to be one of the two, and accordingly Madangahawatte isexcluded.
The last item in schedule A is Yelverton Estate, Badulla. Theappellant purchased it for a sum of Rs. 350,000 on the 30th October1&71, from the Estate Co. of Uva. In addition to the considerationpaid on the date of attestation of the deed of sale he paid a sumof Rs. 45,762.09 on the 4th November, 1971, for “ articles like teachests, unsold tea ” and so forth. He also took over certainliabilities regarding compensation for workers' and according tohis own evidence the purchase cost him about 6 lakhs. In January19,73 he valued it for purposes of wealth tax at Rs. 1.037 millions.
Of the consideration of 3 1/2 lakhs, Rs. 35,000 had been paid asan advance on 1st September, 1971, the appellant had under-taken to complete the transaction by 30th October, 1971:The
balance was paid by three cheques. The first for Rs. 50,000 fromForbes &; Walker, Rs. 100.000 from L. B. Finance Co., andRs. 165,000 by cheque drawn on the Hatton National Bank makingup. Rs. 315,000. The cheque from Forbes and Walker was a loanon a Crop bond and so far as that was concerned it was a legiti-mate transaction. L. B. Finance Company gave a loan ofRs. 1,000,000 and guaranteed another Rs. 100,000 in respect of thispurchase to the Hatton National Bank. On the strength of thisguarantee of Rs. 1.000,000, a loan of Rs. 30,000 from Mr. J. E. R.nPerera and another loan of Rs. 20,000 from a Mr. Kotagama forthe sale of a car, the appellant who had overdraft facilities up toRs. 15,000 issued the 3rd cheque for Rs. 165,000. There is nodispute regarding the loan advanced by Mr. J. E- R- Perera. Thetrial Judge found that the appellant has faded to prove that (a)the loan from L. B. Finance,^(b) advance of Rs. 100,000 by theHatton National Bank, and (c) the Rs, 20,000 from Kotagama arenot from bribery.
On the 11th October, 1971, the appellant applied for a loan ofRs. 100,000 payable in 60 monthly instalments from L- B. FinanceCo. Since the application, as evident from a minute in- the appli-cation itself, the appellant had seen or met the Managing Director,one Duwearatchchi. Duwearatchchi recommended the granting
WJJESUNDERA, J-—Fernando v. Republic of Sri Lanka
of the loan subject to the usual rate of interest and the loaftscommittee on 22.10 approved the loan subject to 4 conditions—(a) there was to be a primary mortgage of the estate executedat the time the conveyance was made, (b) a title report had to beforwarded, (c) a valuation report, and (d) a letter for A. I. C. C-that a loan of 1 lakh has been approved and that the cheque willbe sent direct to L.B. Finance Co. This last condition was necessi-tated by the statement contained in the recommendation of theManaging Director that the appellant had applied for a loan tothe A. I. C. C. and on receipt of that loan the applicant intendedto settle the loan to L. B. Finance.In fact the appellant had
applied for such a loan to the A. I. C. C. and even paid the feesfor a survey on 5.10.71.
In that recommendation was another endorsement by Duwe-aratchchi that the appellant had also applied for a guarantee“to the Hatton National Bank for Rs. 1,000,000 on a secondarymortgage of the estate. Duwearachchi recommended that also. Inthe application for a loan of Rs. 1,000,000 by the appellant norequest was made for a guarantee to Hatton National Bank ofanother lakh. There was no separate application for a guarantee;It was contained only in the recommendation of Duwearatchchito the loans committee of which he hirpself was a member. Sothat after the 11th October the appellant had seen or arrangedwith Duwearatchchi for this guarantee. The A.I.C.C. on the 28thOctober, 1971, wrote to L. B. Finance Co., that the A.I.C.C. isstill proceeding with the investigation into the condition of theproperty and a decision will be taken only in the latter part ofNovember whether or not to grant the loan. Then it was clearthat the four conditions imposed for the granting of the loancould not be complied with. There was no valuation report.There was no title report. But on the 29th October instead ofreferring the application for the loan back to the board, Duwe-aratchchi telephoned the Manager, Hatton National Bank andwrote a letter to him that L. B. Finance Co. was agreeable toissue the guarantee required. On the same day the loan appliedfor was given. No mortgage was executed. Only a pro note wassigned by the appellant. On the 30th October utilizing this loanand the guarantee from L. B. Finance Co. the appellant had theestate conveyed in his favour free of any mortgage primary orsecondary. On the 1st November Duwearatchchi put up a memo-randum to the Board that due to the urgency of the matter theloans committee decided to grant the loan and to issue theguarantee. There was no evidence of such a decision. In thatmemorandum he has stated that Yelverton Estate h^s beenvalued at 1.5 million. The board found that Rs. 100 000 had
VYIJESUNDEKA, J.—Fernando u. Republic of Sri Lanka
already been paid and finding that a guarantee had been pro-mised decided to issue the written guarantee which was givenon the 5th November, 1971. Duwearatchchi is no longer at L. B.Finance Co.
Duwearatchchi did not give evidence. One Adihetty from L. B.Finance Co. gave evidence and stated that there was a legalimpediment to the execution of the mortgage bond. This istotally incorrect. It is then clear that the Board of Directorsimposed conditions for granting the loan. They sanctioned thegrant of the loan only in the way of their business. It is equallyclear that Duwearatchchi failed to see that the conditions soimposed were complied with. L. B. Finance Co. were thevictims. The nett result was that on the security of a pro note,
B. Finance Co. advanced Rs. 100,000 to the appellant andguaranteed another Rs. 100,000 already advanced by the HattonNational Bank to the appellant. It cannot be a coincidence thatat this time, Dharmarajah the Manager of Hatton National Bankattempted, through the appellant, to get the Insurance Corpora-tion to deposit a part of the corporation money with that Bankand by the time the written guarantee was given Dharmarajahhad failed in that attempt.
The next question is what transpired between Duwearatchchiand the appellant. What arrangements there were between theappellant and Duwearatchchi there is no evidence. Adihettycannot speak to it. Hence the burden that lay on the appellantcannot be discharged unless Duwearatchchi is called. Thereforethe appellant has not displaced the presumption regarding thistransaction.
The next transaction is the Rs. 100,000 advanced by HattonNational Bank for the purchase of this estate on the same dateas the loan by L.B. Finance Co. The appellant was by this timewell known to this bank. He had two accounts. He was allowedoverdraft facilities. During this time it was the policy of theGovernment that departments and institutions like public cor-porations of the Government should bank with the State Banks.Hatton National Bank had just started business and they wereanxious to secure business ‘'from these institutions. With thisend in view the manager of the bank Dharmarajah met theappellant and offered a higher rate of interest than the rate paidby the State banks if the corporation were to bank a part oftheir money with them. Dharmarajah stated when questionedwhether he was unaware what the State policy was regardingbanking said “ I was not fully aware but I had a feeling becausewe were not committed by it ”. He stated he went and met theappellant because he was the Vice Chairman and knew him and
WUESUNBERA, J.—Fernando v. Republic of Sri Lanka
“ thought he would recommend my offer True to his expec-tations on the 21st September, 1971, the appellant put up aboard paper on the subject and stated that “ it will be advisablefor the corporation to explore the possibility of depositing aportion of the funds Incidentally this is the only board paperby the appellant regarding bank deposits. On the 3rd ofNovember, 1971 “the board was unable to agree to thesuggestion made by the Vice Chairman. The board was of theview that it will not be prudent for the corporation to go out-side the State institutions to invest its funds This decisioncould have been known by Dharmarajah on that day itself. Onthe 5th, the written guarantee of L. B. Finance Co. signed byDuwearatchchi and another director was given, the attempt tohave corporation money deposited in the Hatton National Bankhaving failed.
On the 4th October, 1971, within two weeks of his submittingthe board paper the appellant applied for a loan of Rs. 100,000from Hatton National Bank stating that it will be guaranteedby L. B. Finance although it was only on the 11th October thatan application for a loan was made to L. B. Finance. By thistime the board paper of the appellant had already been submit-ted. The manager Dharmarajah granted the loan on the 29thOctober without any security. Dharmarajah cannot say when.he ordered or decided to give the loan. It must be before the29th October and after the 4th October. Questioned as to whenhe got the guarantee, the answer was “ we got the guaranteethe day after I gave the loan because it was an agreementbetween myself and the managing director of L. B. Finance. Itwas Duwearatchchi who asked me to give the cheque and thathe would forward the guarantee the next day A few ques-tions later he had to admit that this was wrong and theguarantee was obtained much later. But Duwearatchchi couldnot have said when the guarantee was to be given, because theBoard of. Directors had still not approved of what Duwearatch-chi had done. It was only on the 1st November that he soughtthe sanction of the board of L. B. Finance for what had beendone. A letter dated the 29th October, 1971, was produced bythe defence to the effect that Duwearatchchi had written to theHatton National Bank to give the loan that L. B. Finance isagreeable to issue the guarantee.
The most striking feature in the loan by the Hatton NationalBank is that there is evidence of some positive act of theappellant in his capacity as Vice Chairman of the Corporationperformed for the bank. This element is absent in the case ofthe loans from Bar fleets and L. B. Finance Co. There is inaddition the presumption operating. There is not even a sugges-
*542V f J ESUN DISK A, .T-—Fernando v. Republic of Sri Lanka
tion of it in those two cases. It was urged that the loan wassecured and it is the usual practice for banks to advance loans"of this nature. The loan was secured after the issue which is'after the Corporation had turned down the suggestion of theappellant. Therefore the trial Judge was correct in arriving atthe finding that the appellant has failed to prove the loan ofRs. ‘100,000 from the Hatton National Bank is not from bribery.
, The last item is “ the Kotagama transaction ”. There was aMorris Trailer belonging to 'the Estate Co. of Uva. This carwas transferred to the appellant after the sale of the Estate onthe 2nd November. The appellant said he transferred it to oneKotagama for Rs. 20,000 paid in cash a few days before whichthe appellant, utilized for this payment. The trial Judge refusedto accept this. On a perusal of the deed of transfer all wagonsbelonging to the owners were sold on that deed. Therefore if theposition of the appellant in that matter is correct he hasaccounted for Rs. 20,000. But the difficulty is if the appellanthas failed to displace the presumption in respect of the purchaseof the Estate, any amount realised later by sale of the Estateor its machinery or vehicles will be veiled with that samepresumption.
The trial Judge made no finding on the Moolgama shares andthe money paid to the Industrial Finance Co. These two itemsare, therefore left out of consideration in this order.
On the 21st May, 1975, the attorney for the appellant in thelower Court called a witness Issidore Peiris, credit manager ofHatton National Bank. He had already been called by the prose-cution and cross-examined by the defence very much earlier.The defence moved to produce two letters through him (a) aletter dated 12.7.71 written by the appellant to the managerHatton National Bank'for a loan of Rs. 1,000,000 for the Gama->vella transaction, (b) the reply dated 19.7.71 from Dharmarajahthe manager. The appellant had concluded his evidence.Dharmarajah had concluded his evidence. The State objected.The trial Judge upheld the objection and gave no reasons butpresumably for the reasons stated by the prosecuting attorney. Ithas been contended that this order was wrong.
The application was to lead in evidence through this witnessa letter written by Dharmarajah to the appellant after bothDharmarajah and the appellant had concluded their evidence.Peiris could not have testified to the letters and to the referencein the letter to “the discussion I had with you ”. There was noindication whatsoever that Dharmarajah would be recalled. The‘prosecution could not have called the appellant. There was noindication at all that this appellant would be recalled. As the ■defence was i'elying on the truth of the contents of the two
Wl.l HSUN OEKA, J.—Fernando v. l-'e ml Air. q/ Ln Lankaoil!
letters it was necessary that at least one of these two witnessesshould have been recalled. The appellant had nof referred tothese two letters in his evidence or in his explanation. The learnedDirector of Public Prosecutions stated further that the witnessPeiris was present in court throughout the evidence of Dharma-rajah. The defence could have recalled Dharmarajah particularlywhen that witness had in open court desired to pnake submissionsafter his evidence was concluded. It is my view that, even if thepresence of the witness in court is ignored the trial Judge actedcorrectly in upholding the objection.
This witness thereafter gave evidence and the defence movedto have the documents ruled out filed of record. The prosecutionobjected and the application was refused. The trial Judge wasin error in refusing that application. Where a document is ruledout the higher court cannot determine whether the ruling iscorrect or not unless the document is available in the record forperusal. In this case however although it was not available inthe record, the attorney for the appellant furnished the courtwith the copies of the two documents.
Soon thereafter the defence moved to mark two other docu-ments (a) a letter dated 4th October, 1971, which the appellantsent to the manager, Hatton National Bank applying for a loan
a letter dated 29.10.71 the reply by L. B. Finance. The Stateobjected to both these letters. But a perusal of the record showsthat on that very day a copy of the letter of the 39tft October,1971, was produced in evidence by a director of L. B. Finance Co.as D 40. On the previous date of trial, 7.5.75 witness Dharmarajahhad produced the letter dated 4th October, 1971, as P 115. Infact that witness has even been questioned on D 40. So that bothlearned attorneys had forgotten that these two documents werein evidence already. When this was pointed out it was submittedthat the application was to mark the original of the letter dated
I do not see any difference between the original andthe copy. I do not think there is any substance in the objections.The true position is that both attorneys at the trial and also in theappeal did not notice that the documents were already inevidence.
It was repeatedly urged that the evidence of A. M. Thaha wasirrelevant and prejudicial to the appellant. Thaha’s name wasnot included in the list of witnesses whom the prosecution inten-ded calling. In the summary of facts no reference was made tothe evidence of Thaha. In the explanation furnished by theappellant to the Bribery Commissioner under section 23A (4)reference was made to loans from Thaha. On the 8th of October,1974, the Attorney-General moved to file an additional list ofwitnesses and to summon A. M. Thaha who at this time was
VT JESUN DEBA, J.— Fernando v- Republic of iSri Lanka.
undergoing imprisonment after he was sentenced by the CriminalJustice Commission (Exchange Control). That same day thedefence was given a copy of the statement of Thaha made tothe Commission on the 3rd of February, 1972, and the prisonauthorities were informed by telephone to produce Thaha thenext day. On the next day 9th October, the prosecuting attorneymoved to call Thaha. This application was allowed after theobjections of the defending attorney were overuled. Thahatestified to 3 matters : (1) He came to know the appellant afterthe appellant was appointed Vice Chairman of the InsuranceCorporation and he used to cash post dated cheques for theappellant. (2) He discussed the question of raids on bucket shopswith the appellant “ as he was influential with Mr. T. B. Illanga-ratne and Mr. L. Jayakody. ” Within two weeks prior to the5th April, 1971, he gave Rs. 50,000, and later Rs. 10,000 to theappellant being his one third share of a sum of 2 lakhs, “ meantto be paid to somebody else ”—Thaha’s own words—for eitherlegalising betting or for stopping the police raids on book makers.
He gave a loan of Rs. 45,000 to the appellant on a chequeout of which a sum of Rs. 23,000 was repaid. The learned Directorstated in this Court that he^ called Thaha because the evidencewas relevant.
The Bribery Act in section 10 (1) requires that a list ofwitnesses whom the prosecution intends calling be included inthe indictment. Section 11 of the Bribery Act empowered theprosecution to call any witness although not listed in the indict-ment. The section has to to be given a meaning. The section doesnot provide for notice. An amendment of 1976 to the BriberyAct provides that notice should be given. The trial in this casewas in 1974 and 1975. But to ensure a fair trial adequate noticeshould be given to the defence. How adequate the notice isdepends on the circumstances of the case. Then the only com-plaint available is whether or not adequate notice, so as to ensurea fair trial, has been given. Only a day’s notice was given andit was because this notice was insufficient the defence appliedfor time on the conclusion of the evidence in chief, till the nextday to cross examine the witness. Whether or not such an appli-cation should be granted is essentially a question for the trial.Judge to be decided after considering the contents of the state-ments, the state of the trial, the notice given of the evidenceand the fact that the law permitted the prosecution to call thiswitness. At the same time it must be remembered thatalthough he was sprung upon the case, his evidence on twopoints was of use to the defence and supported the appellant.Perhaps the learned trial Judge was abrupt in refusing thatrequest for a day’s postponement of the cross-examination.
WIJESUNDERA, J.—Fernando v. Republic oj Sri Lanka
The learned trial Judge in accepting the evidence of Thahastated that he “ did not overlook the provisions of section 79(1) Section 79 (1) of the Act states—
“In any proceedings for bribery… .the giver of a grati-fication shall be a competent witness against the personaccused of taking the gratification and shall not be regardedas an accomplice….”
Even if these proceedings are for bribery as defined in section80, the giver of a gratification is not be regarded as an accom-plice in proceedings where the person who accepted that grati-fication is accused of accepting that gratification. So that forsection 79 (1) to operate in favour of Thaha, the appellant mustbe accused of accepting that sum of Rs. 50,000 or 60,000. That isnot the accusation here. Consequently section 79 (1) has noapplication and the trial Judge has misdirected himself on thispoint.
This is an appropriate place to consider another submissionmade on behalf of the appellant. The prosecution called 6 otherwitnesses whose names were not on the list of witnesses. It wasnot seriously contended that the evidence of these six witnesseswas irrelevant. In fact the evidence appears relevant. I do notthink that so far as these six witnesses were concerned, the evi-dence being of such a formal nature, that any justifiable com-plaint can be made because the law at that time allowed theprosecution to call those witnesses. •'
The objection is to item (2) of Thaha’s evidence. The offencewith which the appellant is charged is for owning propertydeemed to have been acquired by bribery. To establish thatoffence, as already pointed out, it is unnecessary to establishspecific instances of bribery. In fact the legislature appears tohave contemplated action under section 23A when there is noevidence of specific instances of bribery but where there isevidence of such an accumalation of wealth which a personcould not have accumalated from his known income. If theaccused person in trying to explain his acquisitions states thathe acquired property A out of a loan X it may be open to theprosecution to prove that the loan X is in fact a bribe. If theappellant for example showed how he bought the various acqui-sitions it is certainly open to the prosecution to call evidence toshow that in fact some of these receipts are bribes. The learnedAttorney for the appellant conceded that in those cases it wouldbe so.
Thaha stated that he gave Rs. 50,000 about two weeks before5th April and Rs. 10,000 thereafter. It was submitted that if theacquisitions of the appellant up to the end of August beexamined, the total of the money spent on acquisitions and his
1 ***—A 53588 (80/1 1
WIJESUNDEltA, J.—■Fernando v. Republic of Sri Lanka
.expenditure taking the figures on the evidence of the appellanthimself exceed the income and receipts given by the appellantby more than Rs. 60,000, and that this evidence shows how theappellant made good the shortfall. The sum of Rs. 50,0-00 givenby Thaha being a bribe by virtue of section 23A(2) cannot beincluded in the receipts. Therefore there is no necessity tolead that evidence as the shortfall necessary between expen-diture and receipts to establish the charge is maintained, unlessit be rebut anything contained in the explanation or in theevidence. That is not the position here. Therefore thisevidence is irrelevant.
Unlike in the innumerable cases cited, this is only one itemin a mass of evidence. This item has no connection with.anyone of the transactions or deposits. It has not been taken intoconsideration in determinig that the presumption in respect ofanyone of the transactions has not been rebutted. Then I failto see how the acceptance of this item of evidence vitiates theconviction.
• It was urged that the evidence of Thaha even if relevant,to highly prejudicial to the appellant. A number of cases werecited- in support of the submission that there should be a retrialof the appellant on the same charge. In Rajakaruna’s caseS.C.31/75 D.C. Colombo 293/B, S.C.M. 27.2.76 the prosecutionled evidence of another incident of bribery in addition to theone charged. This was a trap case where the question was thebelief or disbelief of a witness who gave the bribe. Theevidence in the case of Moses v. R., 75 N.L.R. 121, was also ofthe . same nature- A large number of cases were cited to showthat where there has been irrelevant or inadmissible evidencepf character the conviction has been set aside and a retrialordered. Even in a jury trial where inadmissible or irrelevantevidence has been admitted the verdict will be set aside if.“ it is impossible to say that the reception of this evidence wasnot the deciding factor which made the jury give their verdict ”Maxwell v. D.P.P., 1935 A.C. 323. It is needless to refer to anyfurther authority on this question. I do not think that in viewof the rest of the evidence, Thaha’s evidence was the decidingfactor which compelled the trial judge to return the presentverdict. I do not think it correct, considering the evidence Ihave set out, to state, that the evidence of. Thaha that he paidRs. 50,000 to the appellant for the purpose stated prompted theJudge to reject the appellant’s evidence and find the 'appellantguilty. That decision is unassailable because : —
,(a) The evidence of the appellant has been so hopelessly
contradicted by his own witnesses, that his evidencecould never have been accepted by any Court.
WIJESUNUERA, J.—Fernando v. Itepublic oj Sri ljanka
The appellant has given so many inconsistent or con-
tradictory answers on very many matters. Instancesare numerous-
Fabricated documents and false accounts have been
produced in this case. I will mention two instances ;(i) cheques in favour of the Postmaster Generaldrawn by Rotan Vandor Associates were accountedfor by the appellant as monies paid to him by thatfirm, (ii) the acount book of Free Lanka Trading Co.shows that FEECS at 44% of Rs. 23,292 has beencalculated at Rs. 35,393 ;
The deposits to the Bank . Account of the appellant
amounting over 7 lakhs (figure given by the learnedattorney) during this period.
My observations at page 337 in the Gamawella trans-
action last para.
Therefore in my view the evidence should be considered andcan be considered leaving the evidence of Thaha on this pointaside. Even in the case of a jury trial such a course is not withoutprecedent, vide- 71 N.L.R. 169 case of Pauline de Croos. Theproviso to section 11 of the Administration of Justice Law saysthat “no error…. unless there is a failure of justice.” Thepreponderance of evidence in this case is so great that there isno alternative but to affirm the conviction. No judgment orproceedings of a trial is one hundred per cent correct. There isalways some error. What relief should be granted depends onwhat the error is and above all the evidence.
It was urged by the learned attorney for the appellant thatin a retrial the appellant will be in a position to call Duwearat-chchi, Shelton Perera of Rotan Vandor Associates and others'whose absence from the witness box has been the subject orcause of adverse comment and inference. Retrials have beenordered in criminal case where evidence not available at thetrial has subsequently surfaced. No retrials have been orderedto enable the parties to call evidence which the defence at thetrial thought was not necessary and to compel reluctant witnessesto testify.
The appellant has failed to rebut the presumption in respectof Rs. 30,000 for Hunnasgiriya ; Rs. 18,000 for Elabodawatte;Rs. 100,000 obtained through Duwearatchchi from L. B. Finance'Co., ; Rs. 100,000 from Hatton National Bank and Rs. 20,000from the Kotagama transaction. This totals up to Rs. 268,000. Iaffirm the conviction in respect of this amount. Consequently Iireduce the sentance of imprisonment to a period of four (4)years rigorous imprisonment. The penalty recoverable will
WIJESUNDEItA, J.—Fernando v. Republic of Sri Lanka
accordingly be reduced to Rs. 268,000. In terms of section 23A (3)
I sentence the appellant to pay a fine of Rs. 5,000. Subject tothese variations the appeal is dismissed.
The application of the Hatton National BankAfter the arguments in the appeal were concluded Mr. Pulle-nayagam made his submissions on this application. This is anapplication by the Hatton National Bank to have the followingobservations made by the learned trial Judge expunged fromthe record : —
“No doubt, certain Banks and money lending institutionshave advanced- brazenly large sums of money to the accusedwithout any principle attached to the payment.
One has to consider whether the payment made by thoseinstitutions were bona fide or paid with an ulterior motive,with an idea of getting further help from the accused whowas holding such an influential position in the InsuranceCorporation. I am firmly of opinion that the payments madeby the Hatton National Bank to the accused were so taintedthat one could hardly see even the basis for those payments.
After examining all the deposits and withdrawals from Hisaccount, there is no doubt whatever that Rs. 1,000,000 fromthe Hatton National Bank were all tainted transactions andwhich I consider proceeds obtained from bribery.”
The Manager of this Bank Dharmarajah gave evidence for theappellant and after the appellant had concluded his evidenceAfter his evidence was concluded and after two other witnesseshad concluded their evidence, Dharmarajah stated from the wellof the court that “he wished to make certain submissions inregard to the evidence he gave He was the Manager of a Bankand should have known that he could not have done it. Hisconduct showed that he was concerned over his evidence. If therewas anything more to be said the attorney who led his evidencewould have recalled the witness. But he was not. Unperturbedthe learned trial Judge told him that there was no provision inlaw for the witness to do that.
Now the present application is to have the remarks referredto, because of the transactions which Dharmarajah put throughon behalf of the Bank expunged. There are no reported instanceswhere the observations made by a trial Judge about a witnesshave been expunged. Even in the case of Ramasamy, 66 N. L. R.265, the Privy Council did not expunge the remarks but onlysaid that they did not associate themselves with the remarksmade in that instance. In the present case, many submissionswere made about the transaction of the appellant with the Bank.
MALCOLM PERERA, J.—Fernando v. Republic of Sri Lanka
Mr. Pullenayagam submitted that “ even if this Court were toaffirm the conviction on other grounds ” the transaction with theBank was a perfectly legitimate one. But I have already statedmy reasons why the finding of the learned District Judge iscorrect in regard to this transaction.’ In coming to that conclusionhe must necessarily comment on the evidence and should be freeto comment on the evidence as the occasion demands. I do notfind anything in the evidence to show that the learned trialJudge should not have made these observations. The learnedtrial Judge has kept well within the bounds of propriety. In thecircumstances it is unnecessary for me to consider any otherquestion.
I refuse this application.
Malcom Perera, J.
The accused-appellant appeals to this Cburt against theconviction and the sentence, in respect of a charge made againsthim which is punishable under section 23A (3) of the BriberyAct
The charge against the appellant reads as follows :—
That between the 31st day of March, 1968 and 31st day ofOctober, 1971, within the jurisdiction of this Court you didacquire the following property: —
The properties described in schedule ‘ A ’ annexed hereto
being properties which could not have been acquiredwith any part of your known income or which could nothave been any part of your known receipts or whichcould not have been property to which any part ofyour known receipts had been converted, and
the money described in schedule ‘B’ annexed hereto
being money which could not have been part of yourknown income or receipts or which could not havebeen money to which any part of your known receiptshad been converted.
And such property being deemed by section 23A (a)of the Bribery Act to be property acquired by briberyor property to which you have converted propertyacquired by bribery and that you being or havingbeen the owner of such property are thereby guiltyof an offence punishable under section 23A (3) ofthe Bribery Act.
At the conclusion of a long and protracted, and stronglycontested trial, the appellant was convicted and sentenced tothe maximum term of seven years’ rigorous imprisonment, afine of Rs. 340,200 in terms of section 26A, in default seven years’
360 MALCOLM P-EREltA, J.—Fernando v. iiepuLlie oj Sri Lanka
rigorous imprisonment, and was further ordered to pay a penaltyof Rs. 340,200 under section 26.
The following are the main questions that arise for determi-nation, in this appeal: —
“ Did the learned trial Judge misdirect himself on theburden of proof that lies on the appellant to prove thecontrary of the presumption, under section 23A (1) of theBribery Act ?
Did the Judge admit irrelevant and inadmissibleevidence, that gravely prejudiced the case of the appellant ?
Did the Judge adopt an unfair attitude towards thedefence ?
I shall now deal with the first question. The trial judge in hisjudgement sets out the burden that lies on the appellant toprove the contrary of the presumption fairly clearly andcorrectly. He says,
“ The quantum of proof in discharging that presumptionis no doubt on a balance of probability. This presumptionis attached to the property and not to the person. ”
However, the matter does not rest there, for when he beganto apply the law to the facts of this case he wandered away fromie right course which he had earlier set, for himself. Says he—
“ Once the presumption arises, then the burden of provingthe contrary falls squarely on the accused. What is thecontrary the accused has to prove ? In my opinion it is thatthe property so acquired was not acquired by the acceptanceof gratification in contravention of the statute. Then, theaccused has to prove the various sources of his wealth.besides proving that, another duty is cast on the accused, viz.,that the sources (are free) from suspicion and doubt ” (page703).
Still in another place, he says,
“ He has not only to prove that alone, but he has to provethese transactions are free from taint and that the characterof these payments are above suspicion ” (page 727).
In more than one place, he has stated that the accused hasto prove that the transactions were free from taint and suspicion.
So that it is quite apparent that, when he came to examine theevidence both oral and documentary in regard to each trans-action, the learned judge, placed on the accused a burdenhigher than contemplated by the law.
MALCOLM PERERA, J.—Fernando v. Republic of Sri Lanka351
In effect the judge has placed on the accused the burden notmerely of proof by a balance of probabilities, but has called uponhim to remove taints, suspicions, and all doubts, in regard toevery transaction that comes under purview of the charge.Thus he required the accused to satisfy him they were notproceeds of bribery, beyond doubt, suspicion and free fromtaint.
What then is the burden that lies on an accused person, whois charged under section 23A of the Bribery Act ?
1 shall answer the question in this way.
In my view, the prosecution must convincingly prove, that isprove, beyond reasonable doubt that the accused acquiredproperty, which cannot be acquired or which it was not possibleto be acquired with his sources of income or receipts known tothe prosecution after a proper and thorough investigation.The prosecution however is not required to satisfy Court thatthe acquisitions were made with income or receipts from bri-bery. For, if it was incumbent on the prosecution to prove theacquisitions were proceeds of bribery, then it would defeat thevery purpose for which the legislature included the section inthe Bribery Act. As I understand, the meaning of section 23A,it is intended to catch up a person in respect of whom there isno actual evidence of bribery, but there is only presumptive• evidence of bribery.
Considering the same question Wimalaratne, J. expressed theview, “ the prosecution is not required to prove that theacquisitions were made with income or receipts from bribery ”.(Wanigcisekera v. Republic of Sri Lanka, 79 (1) N. L. R. 241).
Thus if the prosecution establishes beyond reasonable doubtthe ‘ basic facts ’; the Court must draw the presumption thatthe acquisitions were proceeds of bribery. Section 23A reads
“it shall be deemed, until the contrary is proved by
him that such property is^or was property which he has or hadacquired by bribery or to which he has or had converted anyproperty acquired by him by bribery. ”
Thus upon proof of the basic facts by the prosecution, theburden of proving the contrary of the presumption shifts toaccused.
What is this burden that is on the accused ? I think wordsof Lord Hailsham, L.C. in the case ‘of Sedeman v. R, (1936)
2 A.E.R.1138 at 1140, are most appropriate. Says he—
“The suggestion made by the petitioner is that the jurymight have been misled by the judge’s language into theimpression that the burden of proof resting on the accused
MALCOLM PERERA' J.—Fernando v. Republic of Sri Lanka
to prove the insanity was as heavy as the burden of proofresting upon the prosecution to prove the facts which theyhad to establish. In fact there is no doubt that the burden
of proof for the defence is not so onerousit is
certainly plain the burden in the cases in which an accusedhas to prove insanity may fairly be stated as not beinghigher than the burden which rests upon a plaintiff ordefendant in Civil proceedings. That this is the law is notchallenged. ”
In the case of the Attorney-General v. Karunaratne, S.C.16/74; D.C. Colombo Bribery B/75 ; S.C. Minutes of 17.6.75,Samerawickrema, J. observed :
“ What a person has to prove is that a property was notacquired by bribery or was not property to which he hasconverted any property acquired by bribery.
The ordinary and the usual method by which a personmay prove this is by showing the source from which heacquired the property and demonstrating that it was nota bribery. As this is a matter in which the onus is on theaccused person, it will he sufficeni if he establishes it on abalance of probabilities. ”
Section 2 of the Prevention of Corruption Act of 1916 otfEngland, provides, amongst other things, that, where in anyproceedings against any person for an offence under the aboveAct, it is proved that any consideration has been given, to aperson in the employment of a department of the Government,by the agent of a person holding a contract from a GovernmentDepartment, the consideration shall be deemed to have beengiven corruptly, as such inducement or reward as is mentionedin the Act, unless the contrary is proved.
In the case of R. v. Carr-Briant, (1943) 2 A.E.R. page 156* acharge was laid against the appellant under the provisions ofthe Prevention of Corruption Act, above mentioned. The judgedirected the jury as follows: —
“ What has the accused to do ? He has not only to dis-charge the burden of proof to the contrary of, corruption,he has not only to proye that he gave it without a corruptmotive, but he had to do so beyond all reasonable doubt. ”
Humphreys, J. said—
‘ In our judgment in any case, where either by statute orat commen law, some matter is presumed, against an accusedperson, “ unless the contrary is proved ”, the jury should bedirected that it is for them to decide whether the contraryis proved : that the burden of proof required is less than thal
MALCOLM PERERA, J.—Fernando p. He public oj Sri Lanlca
required o.t the hands of the prosecution in proving the casebeyond a reasonable doubt, and the burden may be dis-charged by evidence satisfying the jury of the probability ofthat which the accused is called upon to establish. ”
uln the Malaysian case of Public Prosecutor v. Yuvaraj, (1970)A.C. page 913, the Privy Council considered the provisions ofsections 3 and 4 of the Prevention of Corruption Act of 1961 ofMalaysia. Section 14 of the said Act provides :
“ Where in any proceedings for an offence under
section 3 or 4 it is proved that any gratification shall be
deemed to have been paid or givencorruptly
unless the contrary is proved. ”
It was held, there where an Act creating an offence expresslyprovided, that if upon proof of other facts, a particular fact, theexistence of which was a necessary ingredient of the offence,should be presumed or deemed to exist unless the contrary isproved, “ the burden of rebutting such presumption is dischargedif the Court considers that on the balance of probabilities thegratification was not paid or given and received corruptly as aninducement or reward as mentioned in section 3 or 4 of the Pre-vention of Corruption Act, 1961. ”
The degree of proof required to discharge the burden that lieson a party in a civil case has been concisely stated by Denning,
J.thus : “ This degree is well settled. It must carry a reasonabledegree of probability, but not so high as required hr a criminalcase. If the evidence is such that the tribunal can say ‘ We thinkit more probable than not’, the burden is discharged, but if theprobabilities are equal it is not. (Miller v. Minister of Pensions(1947) 2 A. E. R. page 272 at 274 paragraph A).
In the instant case, when the trial judge required the appellantto prove the contrary of the presumption beyond “ suspicion ”and “ taint ”, he placed a burden heavier than that which lawhas placed.
In the case of Wanigasekera v. The Republic of Sri Lanka,79 (1) N. L. R. 241, the accused had claimed that a loan ofRs. 20,000 from Messrs Caves Finance and Land Sales Ltd. on ahire-purchase agreement, was part of his known income andreceipts during the period contemplated in the charge. Caveshad not taken any steps to recover the money due on the loan,until after the accused had ceased to be a director of the Bankof Ceylon ; further the Board of Directors of the Bank at ameeting in which the accused participated had sanctionedoverdraft facilities to Caves to the tune of five lakhs of rupees.
MALCOLM PERERA, J.—Fernando v. Republic of Sri Lanka
Upon this material the trial judge held that the sum oiRs. 20,000- was given and received as a bribe under the guise of aloan. However in appeal the Court held that the accused hadproved on a balance of probabilities, that it was a genuine loan.Wimalaratne, J. said—
“ In this instance too there appears to have been proof ona balance of probability that the accused obtained this sumas a loan from Caves. We cannot however refrain frommaking the observation that persons in the position ofDirectors of Banks and other Government lending institu-tions, should avoid borrowing money from firms which arerecipients of credit from such Government Institutions.However, genuine such transactions may be, they leave roomfor suspicion of corruption and graft, and bring discredit notonly to them but also to the institutions concerned. ”
Thus it is apparent, that in a given transaction although theremay be “ taint ”, “ doubts ” and 11 suspicions ”, yet on a balance ofprobability, it can be held to be a genuine transaction.
Before I pass on to the next question for determination, I.would like to refer to section 3 of the Evidence Ordinance, whichreads as follows : —.
“ A fact is said to be proved, when after considering thematters, before it the Court either believes it to exist orconsiders its existence so probable that a prudent man ought,under the circumstances of the particular case, to act uponthe supposition that it exists.
A fact is said to be disproved, when after considering thematters before it, the Court either believes that it does notexist, or considers its non-existence so probable that a pru-dent man ought, under the circumstances of the particularcase, to act upon the supposition, that it does not exist.
A fact is said not to be proved when it is neither proved ordisproved. ”
The provisions of the Evidence Ordinance are equally appli-cable to both civil and criminal proceedings, except of coursewhere there are special provisions in our Law of Evidence, whichare peculiar to criminal proceedings, e.g., provisions relating tobad character, confessions, and those pecu'lier to civil cases, e.g.,provisions in respect of estoppel, admission and character.
The words of section 3 of the Evidence Ordinance do not drawa dividing line between the matters that should be proved in acriminal proceeding and the facts required to be proved byeither the plaintiff or defendant in a civil ease.
MALCOLM PERERA. J.—Fernando o. Republic of Sri Lanka
Therefore can it be concluded that by the provisions of a meresingle ‘ definition section ’ the long established and historicdistinction, between the burden of proof which is placed uponthe prosecution in criminal proceedings to establish the ingre-dients of the offence beyond reasonable doubt and the burdenwhich lies on the plaintiff to prove the cause of action or thedefendant to prove his defence, on a balance of probabilities, hasbeen wiped out ?
T venture to think that the provisions of our Evidence Ordi-nance never intended to abolish so basic and fundamental aprinciple, that has not only been accepted and acted upon byour Courts, but has by the test of time, been stamped with theseal of permanence in our legal system.
There is no doubt a marked difference as to the effect ofevidence in civil and criminal proceedings. In a criminal case thefundamental principle is, as was said by Holroyd, J. in SarahHobson’s Case (1 Lewin’s Crown Counsel—261) :
“It is better that ten guilty men should escape than oneinnocent man should suffer. ”
However, in a civil case mere preponderance of probabilitywould suffice to obtain judgment in a favour of a party.
In this connection the words of Denning, L. J. in Bater v.Bater, (1950) 2 A. E. R. page 458 at 459, are most illuminatingand helpful. He said—
“ It is true that by our law there is a higher standard ofproof in criminal cases than in civil cases, but this is subjectto the qualification that there is no absolute standard ineither case. In criminal cases the charge must be provedbeyond all reasonable doubt, but there may be degrees ofproof within that standard. Many great Judges have saidthat, in proportion as the crime is enormous, so ought theproof to be clear. So also in civil cases. The case may beproved by a preponderence of probability, but there may bedegrees of probability within that standard. ”
Acting on this principle our Courts have insisted upon a muchhigher degree of proof in criminal cases than in civil cases. Therule above stated is nowhere found in the Evidence Ordinance,but even if it is not a rule of law, it certainly is a rule ofprudence founded on public policy, for the consequences of anerroneous conviction are more far reaching both to the accusedand to the community than those of a wrong acquittal.
In view of my decision on the law, I hold that the learned trialJudge has placed upon the accused-appellant, a burden far moreonerous than required by a law to rebut the presumption created
356MALCOLM PERERA J.—Fernando v. Republic of Sri Lanka
by section 23A (1) of the Bribery Act. In view of this gravemisdirection of law the conviction cannot be allowed to stand-
I now come to consider the second question, “ Did the Judgeadmit irrelevant and inadmissible evidence, which gravelyprejudiced the case of the appellant ? ”
Mr. Coomaraswamy most strenously argued, contending thatthe evidence of witness A. Mubarak Thaha was not only irrele-vant and inadmissible, but also highly prejudicial-
Before I deal with this witness’s evidence, it is both revealingand interesting to note the circumstances under which he wascalled to the witness stand.
The Journal Entry of 4.10.74 indicates that the trial was"adjourned for 9.10.74. On the day before the trial, that is on
the Attorney-General filed an additional list of witnesses,which included the name A. Mubarak Thaha and moved forsummons on him.
Journal Entry No. 10 of 8.10-74 states that further trial wasfixed for 9.10.74- No time to issue summons. Mention on 9.10.74.that is on the trial date.
Journal Entry No. 11 of 8.10.74 is most revealing :
“ 1.40 p m. on 8.10.74. Instructions have been given to theprison authorities to produce witness A. M. Thaha at 8-30 a.m.on the 9.10.74. Police Officer Thirunuwakasu has beeninstructed to serve the notice. ”
Now the indictment has been signed by the acting Attorney-General on the 28th of May, 1974. The names of twenty one wit-nesses have given in the indictment, but Thaha’s name is notamong the names of the twenty one witnesses.
The indictment with a copy of it was received in Court on5.6.74.
The summary of facts does not even hint at any transactionsthe accused has had with Thaha.
On the 4.9.74, the Attorney-General filed an additional listof witnesses and moved for summons. Again on 23 9.74 theAttorney-General has filed another list of additional witnessesand moved for summons.
On neither of these occasions has there been any greaturgency to bring witnesses to Court.
The decision to summon Thaha appears to me to be an eleventhhour decision of the prosecutor, but what I note is that all theKing’s horses and men have been mustered with remarkable
MALCOLM PERERA, J.—Fernando v. Republic of Sri Lanka
expedition to produce Thaha in Oourts with unusual swiftness.
Thaha did arrive in Court on 9.10.74. Mr. Bartlett, the juniorcounsel for the appellant, objected to Thaha’s evidence on thegrounds that it was both irrelevant and inadmissible.
Mr. Seneviratne, however, submitted that this evidence isrelevant, stating that “ if this witness Thaha says that he gavea Rs. 50,000 bribe to the accused and . the Court is prepared toaecept that evidence, the presumption is irrebuttable, and thatwould buttress the presumption to that extent that a bribe wasalleged to have been given to the accused of a specific act ofbribery.” After this submission, Court made order thus :
“ I overrule the objection raised, in view of the submissionsmade by Mr. Seneviratne and I allow the witness to becalled.”
Thaha’s evidence briefly was that he was a book-maker andthat the police were raiding his place of business.
He therefore approached the accused to influence some one toget the bucket shops legalised or in the alternative to stop thepolice raids. On the 5th of April Government passed legislationand the police raids stopped. Therefore he paid the accusedRs. 60,000 as a bribe.
Now I have already decided that once the prosecution hasestablished the basic facts beyond reasonable doubt, the presump-tion that the acquisitions were proceeds of bribery, must be drawnby the Court. It is significant to note that at the concluding stageof the prosecution case when Thaha presented himself in thewitness box, prosecution had led evidence to show that there wasa considerable disparity between the acquisition and the sourcesof income and receipts of the accused, known to the prosecution.Thus the .prosecution has established the basic facts from whichthe Court must presume that the relevant property was acquiredby bribery. The presumption under section 23A requires noevdence “ to buttress ” it. The Court is bound to draw the pre-sumption unlike in case of presumptions under section 114 of theEvidence Ordinance. I
I may mention that it was the position of the accused that hehad taken a loan of Rs. 45,000 on a post dated cheque from Thaha,and this sum was included as part of receipts of the accused.Thaha himself in his evidence supported the accused on this pointand the prosecution conceded it. But it was never the position ofthe accused that the sum of Rs. 60,000 was a portion of.income orreceipts with which he endeavoured to bridge the gulf between
MALCOLM EEliEKA J.—Fernando v. Republic of Sri Lanka
his acquisitions and the known income and the receipts. Had.this, been the case, it was open to the prosecution to prove thatit was a bribe and not part of known income or receipts.
Thaha, no doubt added colour to a long and protracted trial,and if the prosecution case was a lily it needed no gilding,•particularly by a gilder of Thaha’s reputation.
This evidence did not advance the case of the prosecution in'any manner. Its probative value was nothing. Thaha’s evidencewas worthless. Where the prosecution failed to elicit throughThaha any material of evidential value, it succeeded in intro-ducing into case matter that gravely prejudiced the case of theaccused. This success brought defeat—defeat for justice.
Surely this evidence is totally irrelevent and inadmissible. Icannot escape the conclusion that this highly prejudicial evidencecould have distracted the mind of the learned trial judge fromthe real issues of the case. The prejudicial effect of this lethalevidence appears to have spread through the entire body ofevidence, like an evil cancer. No explanation in respect of anyof the transactions relevant to the charge from the accused person,who had within a short period of time amassed properties valued- at about four and half lakhs of rupees, was likely to have beenconsidered, assessed and evaluated, by the judge without some•sort of bias and prejudice. After all the meaning of Thaha’sevidence is that the accused is a bold bribe taker. I
I may add, that the accused, did not in any way put hischaracter in issue.
Now section 54 of the Evidence Ordinance reads as follows:
“ In criminal proceedings the fact that the accused personhas a bad character is irrelevant, unless the evidence hasbeen given that he has a good character, in which case itbecomes relevant.”
Explanation 1 :— This section does not apply to cases inwhich bad character of any person is itself a fact in issue.
Explanation 2:— A. previous conviction is relevant asevidence of bad character in such case.
The provision in this section is founded on the principle thatsuch evidence tends to prejudice the Court against the accusedand is likely to interfere with the calm and dispassionate decisionof the case. This is “one of the most deeply rooted and jealouslyguarded’ principles of our criminal Law, ” said Sankey, L.C. inMaxwell (24 C.A.R. 152).
MALCOLM PER15RA J.—Fernando v. Republic of Sri Lanka
In Rowton’s Case, (1865) 34 L.J.M.C. page 57, Willes, .T.observed that this evidence is “ excluded for reasons of publicpolicy and humanity, because although by admitting it you mightarrive at justice in one case out of a hundred, you would doinjustice to the other ninety nine. ”
It is interesting to note that in India, as the section originallystood, it allowed previous convictions to be led in evidenceagainst an accused person. That section read as follows: —
“ In criminal proceedings the fact that the accused personhas been previously convicted of any offence is relevant; butthe fact that he has bad character is irrelevant; unless evi-dence has been given, that he has good character, in whichcase it becomes relevant. ”
Explanation.—This section does not apply to cases in whichbad character of any person is itself a fact in issue. ”
However, notwithstanding this express provision, the HighCourt of Calcutta, in the case of Foshun v. R, (1880) 5 C. 768,refused to allow evidence of a previous conviction being led.After the decision in the full bench case of R v. Kartie ChunderDas, (1887) 14 C. 721, the present Indian section which is identicalwith ours was introduced, and brought the law in line With theprinciples of the English Law.
The English law principle has been set down in the well-knowncase of R v. Bvtterwasser, (1948) 1 K.B. page 4. In that case theaccused was charged with wounding, with intent to do grievousbodily harm. The prosecutor and his wife gave evidence, thatthe accused slashed the prosecutor’s face with ,a razor. Thesetwo witnesses were cross-examined as to their bad record. Apolice officer gave evidence of the accused’s bad character and ofthe previous convictions. The accused did not give evidence orput his character in issue.
Lord Goddard, C.J. said :
“ We have to consider whether what was done in this casewas in accordance with law. When it became clear that theappellant’s counsel, after having attacked witnesses for theprosecution, was not going to call the appellant, the prosecu-tion sought and were allowed to give evidence in chief ofthe prisoner’s bad character. A police officer was called,who testified to the prisoner’s previous convictions andgeneral character. In the opinion of the Court, that was acourse which cannot possibly be allowed as the law is atpresent. It is elementary law that ever since it became thepractice, as it has been for the last one hundred and fiftyor two hundred yeans, of allowing a prisoner to call evidence of good character, or where he has put questions t*
300MALCOLM PERERA, O'.—Fernando v. Republic of Sri Lanin
witnesses for the Crown and obtained or attempted toobtain admission's, from them that he is a man of goodcharacter, in other words where the prisoner himself putshis character in issue, evidence in rebuttal can be given bythe prosecution to show that he is in fact a man of badcharacter. Evidence of character nowadays is very looselygiven and received and it would be well if our Courts paidattention to a well known case in the Court of, Crown CasesReserved, R. v. Rowton (supra) in which a Court of twelvejudges laid down the principles which should govern thegiving evidence of character and of evidence in rebuttal ofbad character. It was pointed out that the evidence mustbe of general reputation and not dependent upon a particularacts or actions. But however that may be there is no caseto be found in the books and it is certainly contrary to whatall the present members of the Court have understoodduring xohole of the time they have been in the professionthat where the prisoner does not put his own character inissue, but merely attacked the witnesses for the prosecu-tion, evidence can be called for the prosecution to provethat the prisoner is a man of bad character. ”
According to the principles stated above, it would be apparentthat it would be difficult “ to find a case in the books of SriLanka to justify the calling of Thaha to give evidence that theappellant is a bribe-taker, that is to give evidence of his badcharacter. ”
In the Privy Council Case of Makin n. Attorney-General,(1894) A.C. page 57, it was stated that “ it is undoubtedly notcompetent for the prosecution to adduce evidence lending toshow that the accused has been guilty of criminal acts otherthan those covered by the indictment, for the purpose of leadingto the conclusion that the accused is a person likely from hiscriminal conduct or character to have committed the offence forwhich he is been tried. ”
In the case of King v. Pila, 15 N.L.R. page 453, where in amurder case, a principal witness for the prosecution explainedhis delay in reporting whpt he has seen by his fear of theaccused persons, who according to him were “ reputed rowdies.”Further evidence was led to support this witness to the effectthat the accused were by repute men of bad character and weregenerally feared by the villagers. Defence Counsel did not objectto this evidence. The Supreme Court held that the evidence ofbad character was inadmissible.
It has been held where evidential value of character evidenceis slender, whereas the prejudicial effect which its receptionmight have upon the Court would potentially be so substantial
MALCOLM l'KHEKA, J.—Fernando v. In-.public of Sri Lanka
as seriously to impair the fairness ’of the trial, such evidence.should be excluded (The Queen v. Sathasivam, 55 N. L, R. pages.255, 258).
In the instant case the learned trial judge admitted Thalia’sas he thought it was relevant under sections 9 and 11 of theEvidence Ordinance. He says in his judgment: —
“ Now comes the moment when the Court has to considerThaha’s evidence on this point, because his evidence isrelevant. On the accused’s testimony in relation to the cartransaction, the sources of the money he obtained remainedunexplained. Therefore the presumption is that they wereall obtained from proceeds of bribery. In this context it ispositive, that the accused has got a bribe during this periodand that possibly could be the source of his funds, andaccordingly the provisions of sections 9 and 11 of theEvidence Ordinance are relevant. The accused’s testimony isthat he had been cashing cheques with Thaha and on theday of Thaha’s arrest the accused had gone and paid themoney to Thaha having taken the earlier check back. Whenconsidering the source of funds for the accused, Thaha’sevidence is relevant. ”
Section 9 of the Evidence Ordinance reads thus: —
“ Facts necessary to explain or introduce a fact in issueor relevant fact, which support or rebut an inference sugges-ted by a fact in issue or relevant fact, or which establishthe identity of any thing or person, whose identity is relevant,or fix the time or place at which any fact in issue or relevantfact happened, or which show the relation of parties bywhom such fact was transacted, are relevant in so far as theyare necessary for that purpose.”
Section 9 may be said generally to provide for facta which areexplanatory of the facts in issue or relevant facts. These, factsare admitted, because they accompany and tend to explain themain fact, such as identity, names, dates, places, the description,circumstances and relations of the parties and other explanatoryand introductory facts of a like nature (vide Norton on Evidencepage 119). The particulars admissible will of course vary witheach particular case. All unnecessary and irrelevant details willbe excluded.
In the case of King v. Peiris, 32 N. L. R. page 318, two personswere charged, the first person with attempting to sell a defacedstamp as genuine, and the second with aiding and abetting him.The evidence of the second accused was not direct and the prose-cution adduced evidence to establish that in an earlier insolvency
AiAX.COi,M PERERA, J.—Fernando v. Republic of Sri Lanka
proceedings, in which the second accused was the petitioningcreditor, a treated stamp had been used as genuine and wasaffixed to his petition. The District Judge who discovered thisnot only testified to his discovery but also produced the defacedstamp.
The Judge gave evidence that he reported the matter to theCriminal Investigation Department. Objection was taken to thisstatement, Akbar, J. relied on the following passage of LordHerschell’s judgment in Makin v. Attorney-General of NewSouth Wales (supra) —
“ It is undoubtedly not competent for the prosecution toadduce evidence tending to show that the accused has beenguilty of criminal acts other than those covered by the indie-ment, for the purpose of leading to the conclusion, that theaccused is a person likely from his criminal conduct orcharacter to have committed the offence for which he istried.
On the other hand the mere fact that the evidence adducedtends to show the commission of other crimes does notrender it inadmissible if relevant to an issue before the juryand it may be so relevant if it bears upon the questionwhether the acts alleged to constitute the crime charged inthe indictment were designed or accidental or to rebut adefence which would otherwise be open to the accused. Thestatement of these general principles is easy, but it is obviousthat it may be very difficult to draw the line and to decidewhether a particular piece of evidence is on one side orthe other.”
Akbar, J. stating that this passage “ 6ets forth the principles inclear terms ”, held that the District Judge’s statement, “ isrelevant under section 9 of the Evidence Ordinance as a factnecessary to explain a fact in issue, namely, as to how a trapcame to be laid against the second accused.
In the instant case the learned trial judge erred in thinking thatThaha’s evidence was admissible under section 9 of the EvidenceOrdinance. In view of my interpretation of section 23A of theBribery Act, the prosecution is not required to ascertain thesource of the income or receipts used for obtaining theacquisition. Nor is it the function of the trial judge to inquire intoit, for if the accused is unable to remove the disparity that existsbetween his known receipts and income which have beenestablished and the acquisition then the presumption remainsunrebutted and lie would be guilty of the offence.
.MALCOLM PERERA, J.—Fernando v. Republic of Sri Lanka303
If however the accused is able to bridge the gap with sourcesof income and receipts, other than bribery, then he bad succeededin proving the contrary and thereby he has rebutted thepresumption.
If such be the case, the Court cannot come to the conclusionmerely because the accused had received a bribe during theperiod in question, that he would have acquired the impugnedproperties, with the proceeds of the bribe, and not with thedisclosed sources of receipts and income. So then would Thaha’sevidence be relevant to “ Support or rebut an inference suggestedby a fact in issue or relevant fact ? ” I think not. I am of the view,that Thaha’s evidence would not be relevant under this sectionto support the inference that it was with or together with, theRs. 60,000 which Thaha gave, that the accused acquired theimpugned property. Nor would Thaha’s evidence be relevant torebut the inference that he acquired the properties with sourcesof income and receipts which do not amount to bribery.
The next matter is to consider whether this evidence is releventunder section 11 of the Evidence Ordinance. That section readsas follows : —
“ Facts not otherwise relevant are relevant—
If they are inconsistent with any fact in issue or relevant
If by themselves or in connection with other facts they
make the existence or non-existence of any fact inissue or relevant fact highly probable or improbable. ”
Though at first sight the scope of the section appears to be verywide, there are indications to show that limitations have beenplaced on it. The very nature of the illustrations given under thesection demonstrate it. Though provisions of the section appearto be wide, they are controlled by other provisions regardingrelevancy. Evidence led under this section must be logically rele-vant, that is to say absolutely essential. They cannot be tooremote. Even this would not ensure admissibility. It must also belegally relevant. For example section 11 is controlled by section54.
In the leading Indian case of Regina v. Parbhudas, (1894) 11
H.C R. 90 at 91, West, J. in discussing the scope'of section 11
“Section 11 of the Evidence Act is no doubt expressedin terms so extensive that any facts, which can by a claim ofratiocination be brought into connextion with one another,so as to have a bearing upon a point in issue may possibly. be held to be relevant within its meaning. ”
MALCOLM PEPwERA, 0.—Fernando v. Republic oj iSri Lanka
" But the connexion of human affairs are so infinitelyvarious and so far reaching, that thus to take the section inits widest admissible sense would be to complicate every trialwith a mass of collateral inquiries limited only by the pati-ence and means of the parties. One of the objects of the lawof evidence is to restrict the investigations made by Courtswithin bounds prescribed by general convenience, and thisobject would be completely frustrated by the admission, onall occasions, of every circumstance of either side havingsome remote conjectural probative force, the precise amountof which might itself be ascertainable only by a long trialand a determination of fresh collateral issues, growing upin endless succession, as the inquiry proceeded. That suchextensive meaning was not in the mind of the legislature,seems to have been shown by several indications in the Actitself. The illustrations to section 11 do not go beyond fami-liar cases in the English Law of Evidence. ”
If recourse is being had to this section, the object would beto establish that Thaha’s evidence would show that it is incon-sistent with the fact that the accused acquired the properties withsources of income and receipts other than bribery. Or again theobject would be to establish that this evidence would show thatit is highly probable that the acquisitions were made by sourcesof income and receipts from bribery, or highly improbable thatthey were acquired from means not obtained by bribery.
What would be the resulting position to permit the prosecutionto lead Thaha’s evidence, on these grounds ? It would amountto allowing the prosecution, on the pretext of “ buttressing ” thepresumption arising under section 23A (1) to establish a specificact of receiving a bribe, in respect of which there is no presump-tion, by a standard of proof less than proof beyond reasonabledoubt. Such a course would be against all canons of criminaljurisprudence, that obtain in this country. Thus I hold that thelearned trial judge misdirected himself on the law, when hoadmitted Thaha’s evidence under sections 9 and 11 of theEvidence Ordinance.
However Thaha’s evidence would have become relevant andadmissible, if. the accused had sought to establish by a preponder-ance of probabilities that the properties were not acquired bybribery, without disclosing the source from which he obtained theproperty.
Samerawickrema, J. said,
“ I do not think, however that there is any reason, whyin an appropriate case, an accused person may not show onthe probabilities, that the property was not acquired by him
MALCOLM PERERA, J.—Fernando v. Republic oj Sri Lanka
by bribery, without disclosing the source from which heobtained the property, if in the particular circumstances ofthe case he can persuade the judge of that fact. The learnedDeputy Director of Public Prosecutions has also submittedthat an accused should not establish such a fact by a bareassertion from the witness box. Whether or not an assertionby an accused person on oath should not be accepted mustdepend on the circumstances of each case ; credibility whichthe trial judge is prepared to accord to the witness who gavethat evidence and other circumstances. ” (In re Karuna-ratne—supra).
But what do we have in this case ? The accused, when hegave evidence setting forth his defence referred to Thaha’sevidence by saying—
“ I state that I never took any sum from Mr. Thaha as abribe except cashing of cheques on commission. ”
He never set up as a general defence in the case that he had notacquired the impugned properties by bribery. Nor in his explana-tion to the Bribery Commissioner has he taken up this position.
I am not unmindful that at the concluding stage of his evidencehe said that he never accepted a gratification or bribe fromanyone, as an inducement or reward for helping such person inhis capacity as the Vice Chairman of ,the Insurance Corporation.But this denial would not mean that "he put forward the generaldefence that he had not acquired the properties by bribery.
Neither the cross-examination of prosecution witnesses byaccused’s Counsel, nor the general pattern of the defence indi-cate that such was his defence. I do not think that the proseeu-tiqn led the evidence of Thaha for the purpose of countering thispossible defence. I think it was most unfair and it was not in theinterests of justice, to have led the evidence of Thaha in thiscase.
In the case of Ranasinghe and another v- State, S.C. 4—5/75 ;D.C. Bribery Colombo 148/B ; S.C. Minutes of 14th August, 1975,Rajaratnam, J. commented strongly against the leading of evi-dence of bad character of the,accused. Said he—
“ The incidents spoken to above are by no reason connectedto the alleged transaction and I find it difficult to see theirstrict admissibility under any section of the Evidence Ordi-nance. On this matter, I may state, that the essentials ofjustice did not require these items of evidence referred to.I am unable to hold that they would not have unfairly operat-ed against the accused. Evidence tending to show that theaccused has been guilty of criminal acts, other than those
MALCOLM PER BRA, J .—Fernando v. Republic of Sri Lanka
covered by the indictment is not admissible unless upon theissue whether the acts charged against the accused weredesigned or accidental or unless to rebut a defence other-wise open to the accused. (Makin v. Attorney-General ofNew South Wales, (1894) Privy Council A.C. 57).
It is not open to the prosecution to lead evidence of badcharacter and similar offences and rely on general sectionslike ss. 6, 8, 9 & 11 of the Evidence Ordinance. ”
In the case of Rajakaruna v. Attorney-General, S.C. 31/75 ; D.C.Colombo 292/B ; S.C. Minutes of 27.2.76', where evidence of badcharacter of the accused was led, Sirimanne, J. observed :
“ There appears to be a trend in recent times to lead thistype of evidence in cases under the Bribery Act. Thus in therecent case of Ranasinghe v. State, Rajaratnam', J. comment-ed adversely on t’ne prosecution leading inadmissible andhighly prejudicial evidence of previous similar incidents andthat was one of the grounds on which the conviction in thatcase was set aside. Fairness in prosecution and the interests ofjustice (ot which fairness is a fundamental part) require thatevidence of a previous similar act, as was led in this caseshould never be led, unless it fell strictly within the provi-sions of the Evidence Ordinance which clearly made itadmissible, as such evidence merely deepens suspicion with-out proving guilt and it is so prejudicial to the accused thatit deprives him of the substance of a fair trial. ”
It has been urged that even if Thaha’s evidence was improperlyadmitted, its reception was not fatal to the conviction, becausethe accused had been tried by a judge trained in the law. Inthe case of King v.' Perera, 42 N.L.R. page 526, it was held thatthe evidence of bad character of the accused given in a trialbefore the District Court is not fatal to a conviction, if thecircumstances of the case are such that there is other evidence toconvict the accused, and there is nothing to indicate that theDistrict Judge was influenced by the evidence in convicting theaccused.
In the case of Peter Singho v. M. B. W erapitiya, 55 N.L.R. page155, where evidence of bad character was led, Gratiaen, J.observed :—,
“ Learned Crown Counsel conceded, that this evidenceshould not have been admitted, but he invited me to hold, aswas done in King v. Perera, that its improper reception wasnot fata] to the conviction, because the accused had been triednot by lay jurors but by a Magistrate trained in the law. Ido not see how this distinction can be drawn, where a judge
MALCOLM 13ERERA, J—Fernando v. liepublic oj Sri jLordea
of first instance has in spite of his legal training and experi-ence permitted himself, through the improper appreciationof the law, to allow evidence to be led which was of such acharacter as to prejudice the chances of a fair trial on thereal issues in the case- ”
I think that due to the improper reception of Thaha’s evidencethe chances of a fair trial on the real issues in the case, have beenprejudiced, resulting in a failure of justice.
In the case of Coore v. James Appu, 22 N.L.R. 206 at 214,Bertram, C.J. said,—
“ The expression “ failure of justice ” has not so far beenfully discussed, but it is generally accepted that anythingwhich has proved prejudicial to the interests of the accusedin the trial should be considered to have led to a failure ofjustice. ”
In an earlier case Bertram, C.J. had this to say regardingirregularities and improper reception of evidence in criminaltrials :
“ Here as in India, the legislature has foreseen these points,and has expressly provided that irregularities in criminalproceedings, shall be no ground for reversal or alteration ofsentences on appeal unless there has been a failure of justice,and that no new trial or reversal of any decision, shall beallowed in any case on the ground of the improper admissionof evidence, if it appears that independently of the evidence,so admitted, there are sufficient materials to justify theconclusion at which the trial judge has arrived. ”—(Manuelv. Kanapanikan. 14 N.L.R. 186 at 189). I
I have given most careful consideration to Thaha’s evidencein the light of the principles of law which I have enunciated,and I think that due to the improper reception of Thaha’sevidence, the chances of the accused having a fair trial havebeen gravely prejudiced, resulting in failure of justice.
I would like to remind myself of the words of Lord Sankey : —
“ It must be remembered that the whole policy of EnglishCriminal Law has been to see that as against the prisonerevery rule in his favour is observed and that no rule isbroken so as to prejudice the chance of the jury fairly tryingthe true issues. The sanction for the observance of the rulesof evidence in criminal cases is that, if they are broken inany case, the conviction may be quashed.”
,, I am of the view that because of the improper admission ofthe prejudicial evidence of Thaha, the conviction, should bequashed.
■3.68MALCOLM PERER.A, -f.—Fcrnarulo v. Republic of Sri Lanka
, .1. come to the third question, viz., Did the judge adopt an■unfair attitude towards the defence ?
It is well to remember that though Mr. Bartlett’s commenda-ble and valiant effort to prevent the reception of inadmissibleevidence, ended in an unfortunate failure, he continued mostvigilantly and dutifully to conduct the defence of his client. Atthe conclusion of the examination in chief of Thaha, Mr. Bart-lett, made a very proper and reasonable application for anadjournment of the trial for him to take instructions to cross-examine Thaha. This application was refused, by Court. Thereasons given by the trial judge for his refusal are that on
it was understood that the trial would continue from dayto day. However on 4.10.74 defence Counsel intimated that theonly date available was 9.10.74.
It is relevant to note, that Thaha was a witness who emergedwith suddenness and surprise to the accused. The accused hadreceived notice regarding Thaha only at 5 p.m. on 8.10.74. It wasonly at 1.40 p.m. on 8.10.74 that the judge issued notice on theaccused. The accused’s position was that he was not able tocontact his Counsel that evening to give him any instructions.Even Thaha appeared to be unaware that he was brought toCourt to give evidence, till the morning of 9.10.74. The seniorcounsel of the accused’s choice was not present on this day.
I shall now determine the important question whether theaccused had been denied the right to be defended by an attor-hey-at-law of his choice. The right is enshrined in section 136of the Administration of Justice Law, No. 44 of 1973.
That section states :
“ Every person accused before any Criminal Court mayof right be defended by an attorney-at-law."
This section is identical with section 287 of the Criminal Pro-cedure Code, except that in that section the word “ Pleader ” isused for “ Attomey-at-law.’’
The observations of T. S. Fernando, J. in the case of Prema-ratne v. Gunaratne, 71 N.L.R. pages 113, 115, in respect of thisright are stated thus :
“The right of a person who is accused of a criminaloffence to be defended by a lawyer of his choice is one nowingrained in the Rule of Law which is recognized in the Lawof Criminal Procedure of most civilized Countries, and isone expressly recognized by section 287 of our CriminalProcedure Code which enacts ‘that every person accusedbefore any Criminal Court may of right be defended by apleader ’. ”
MALCOLM PERERA, J.—Fernando v. Republic of Sri Lanka
This section however does not give the accused & right underall circumstances, to be defended by any pleader whom he may
In R. v. Silva, (1907) 1 A.C.R. 148, where a proctor whoappeared for the accused on being refused a postponement,threw up his brief and retired from the case, tfae Judge there-upon adjourned the trial to enable the accused to retainanother proctor, but on the trial date, the same proctor appearedand claimed the right to conduct the defence., This, the judgerefused to allow, and proceeded with the trial, apd eventuallyconvicted the accused, who refused to take part in the proceed-ings, as he was not, represented by a pleader. It was held that inthe circumstances the accused was neither entitled to anacquittal nor a new trial. It was held further, that section 287does not give the accused a right under all circumstances to bedefended by any pleader, whom it may please him to select, orthat it should be allowed to override the power of the court todecline to hear any particular pleader on sufficient grounds, e.g.in case of contempt or contumacy.
In the case of Jayasinghe v. Munasinghe, 62 N.L.R. page 527,the accused-appellant who was in the custody of the police fromthe time of his arrest, was produced in Court and charged withthe commission of an offence. He then applied for time to retaina lawyer. His application was however refused on the groundthat a postponement even of twenty-four hours would involvethe complainant who was a foreign being deprived ofthe opportunity of leaving Ceylon as arranged by her.
T. S. Fernando, J. stated :
“ It would appear that the refusal to grant time to theappellant to enable him to instruct a lawyer was influencedby the desire of the Magistrate to ensure that the prosecu-tion would not be deprived of the evidence of the. mostmaterial witness. However understandable this desire mayhave been, a trial at which an appellant was deprived ofone of the most valued legal rights of an accused person,in spite of his expressed desire to exercise that right cannotbe said to be a fair trial. I have therefore set aside the con-viction and sentence ”
Can it be said that this right which is “ one of most valuedlegal rights of an accused person”, which “ is ingrained in therule of law ”, has been enjoyed by the accused in the presentcase ? It is not enough that an attorney-at-law is.appearing forthe accused. The lawyer must be afforded sufficient time andopportunity to receive instructions to prepare his case. Fromwhat has transpired in this case, it is clear that this right has
MALCOLM I’ERERA, J.—Fernando v. Repvblic of Sri Lanka
•not been “ effectively afforded. ” The reasons given by the judgein refusing the defence application are most inadequate.
In the case of Queen v. Prins, 61 C-L.W. page 26 where,defence Counsel at a trial indicated to the .Court that he wassuddenly taken ill and asked for a postponement which wasgranted without objection. On the next day the Proctor for theaccused informed the Court that Counsel was unable to attendCourt owing to illness, and asked for a postponement even for•twenty four hours. The Court then asked the Proctor who madethe application, to defend the accused. The Proctor declined, andhe informed Court that the accused wanted to be defended byCounsel. The Court thereupon granted two hours time to retainCounsel. The Proctor was unable to retain Counsel within thattime. In quashing the conviction and acquitting the accused,Basnayake, C.J. said :
“ Under our law an accused person has a right to berepresented by Counsel or pleader. The refusal to give anaccused person reasonable time to retain Counsel is a denialof that right. We are of the opinion that the learnedCommissioner acted wrongly in not granting the accusedreasonable time to retain another Counsel. We thereforequash the conviction and direct that a verdict of acquittalbe entered. ”
. In the instant case at the end of Thaha’s examination in chiefwhen the Court refused an adjournment of the trial, on theapplication of Mr. Bartlett, who wanted time and opportunityto prepare to cross-examine witness Thaha, but in effect askedCounsel to proceed to cross-examine, by stating “ the trial willproceed”, the Court .did not comply with the spirit of thesection.
In the case of Queen v. Peter, 64 N.L.R. page 120, the factswere that when the case was taken up for trial before theSupreme Court, the retained Counsel was absent. At 11 a.m.'Counsel was assigned to defend the accused and at 12.30 p.m.the case was taken up for trial. In appeal it was submitted that'the time allowed for the assigned Counsel to prepare the briefwas insufficient, and the defence was gravely prejudiced.Basnayake, C.J. 'in agreeing with the submission of the Counsel'for the appellant said :
“ We agree that assigned Counsel should have beenallowed sufficient time for the preparation of his case andfor obtaining instructions from the accused. ”
– I think the position of Mr' Bartlett was no better than thatof the assigned Counsel in that case, if not worse.
:IAlX;OLM PEltEUA, J.—Fernando o. Republic oj Sri Lanlca
Section 340 (1) of the Criminal Procedure Code of India con-tains a provision corresponding to ours. That section reads:
“ Any person who is accused of an offence before a Crimi-nal Court, or against whom proceedings are instituted underthis Code in any such Court, may of right be defended bya pleader. ”
This provision has been construed to mean, that the sectionnot only contemplates that the accused should be at liberty tobe defended by a pleader at the time the proceedings are goingon, but also implies that he should have a reasonable opportunity,if in custody of the police, of communicating with his legaladvisor, for the purpose of preparing his defence. (HewellynEvans, (1926) 28 Bombay 426). In the Rangasamy Padayachi,(1916) 16 G.L.J. 786, the section has been interpreted to meanthat full opportunity should given to the accused to obtainproper legal assistance and advice, before he is called upon tocross-examine the witnesses of the prosecution.
I am of the view that the provision in section 136 of theAdministration of Jutice Law must be construed with a reasona-ble degree of liberality in favour of the accused. I think it mostnecessary that opportunity should be given to the accusedpersons to retain lawyers to represent them in Court at everystage of the trial. Their presence in Court at the stage of exami-nation in chief can be no less necessary than during the stageof cross-examination. A lawyer’s knowledge, training, skill andexperience can bring real advantages to the defence at thestage of the principal examination by objecting to irrelevant,inadmissible and prejudicial evidence, or objection being takento leading questions, or improper production of documents orother exhibits.
The words of Weeramantry, J. in the case of Subramaniam v.Inspector of Police, Kankesanturai, 71 N.L.R. 204 at 206, are mostapposite to the instant case. He says—
“ It needs little reflection to realize that the right we areconsidering is a many faceted one, not truly enjoyed unlessafforded in its many varied aspects. Thus, the right to apleader means nothing if it is not associated with the timeand opportunity to retain one, nor can there be a true exer-cise of this right where a pleader has in fact been retainedbut been clearly afforded insufficient time for the prepara-tion of his case, and for obtaining instructions from theaccused. Indeed this Court *nas, despite the complainant, aforeign tourist, being scheduled to leave the country within24 hours, nevertheless held that an accused person who isin police custody from the time of his arrest, should begranted time to retain a lawyer. Hence the right does not
MALCOLM PERERA, ST.—Fernando v. Republic of Sri Lanka
mean merely that an accused person 'Is entitled in theoryto be defended by a pleader but also that he might enjoyah the concomitant privileges without which the right isreduced to a cipher. ”
It is with much sadness that I express my conclusion on thisquestion. I think the accused has been greatly embarassed inhis defence, by denying his Counsel an opportunity to takeinstructions and prepare the case, and thereby “ reducing to acipher ”, this cherished rig'nt guaranteed in setcion 136 of theAdministration of Justice Law. I think the learned judge’sattitude to the defence has not been fair.
For these reasons I hold that the appellant has been deprivedof the substance of a fair trial, resulting in a miscarriage ofJustice.
There remains one more matter concerning the testimony of'Thaha, namely whether the learned trial judge hadan improper appreciation of the provision in section'70(1) of the Bribery Act, which reads as follows :
“ In any proceedings for bribery before the District Courtor commission of inquiry, the giver of a gratification shall bea competent witness against the person accused of taking thegratification and shall not be regarded as an accomplice, andthe decision or finding of the Court or commission shall notbe illegal merely because it proceeds upon the uncorrobora-ted testimoney of such giver. ”
When the defence submitted that Thaha’s evidence should not;be acted upon as he was an accomplice the learned judge said:
“ I cannot overlook section 79 (1) of the Bribery Act ”,.and merely referred to its provisions. He seems to have thoughtthat Thaha’s evidence could be accepted without a proper-evaluation.
Section 79(1) provides that a giver of a gratification shall be a•competent witness against a person accused of taking a gratifica-tion. It provides further that the ‘ giver ’ shall not be regardedas an accomplice and that a finding can be legally founded uponhis evidence without corroboration. But it must be rememberedthat there is always a duty imposed on the Court, to scrutinizethe evidence, and make a proper assessment and evaluation of it.In doing so the judge will take into consideration the characterand the antecedents of the witness and his demeanour. I seenothing in the provision to indicate that a giver of a gratificationis robed with the garment of credibility. In an appropriate casesuch evidence, if not worthy of credit, must be rejected. It is not
MALCOI,M PERERA, J.—Fernando v. Republic of Sri Lanka
necessary for me in this appeal to refer in detail to the unimpres-sive evidence of Thaha, but considering its quality I cannot seehow a Court can so readily accept his evidence without corrobora-tion. As I have said earlier Thaha’s evidence could have influenc-ed the mind of the judge in regard to every aspect of this case.
In conclusion, I wish to deal with the submission of Mr. Senevi-ratne, that even if the Court were to accept the totality of theappellant’s evidence, it could be shown by a simple process ofcalculation, that the accused had failed to bridge the gulf thatexisted between income and receipts on one side and the acqui-sitions on the other. In order to substantiate his claim he for-warded to Court a calculation of figures by him. It is thereforeobvious that this calculation is not made on the basis of theentirety of the accused’s evidence. It is worked out by selectingsome items and excluding others.^ Can we sitting in appealwithout giving due consideration to all the evidence in the case,reach a finding as to the guilt or otherwise of the accused, onmere figures arrived at by an arithmetical process ? I think notThis was not the basis on which the trial judge was Invited toarrive at a verdict. It would be most unfair and unjust by theaccused for us to take this course- Had this been the basis uponwhich Ihe trial proceeded in the Court below I cannot say whatquestions would have been asked or what explanations theaccused may have given. All I can say is that the accused wasnot afforded such an opportunity. By a computation of figures,Mr. Seneviratne has shown in his calculations a considerabledisparity between acquisitions and receipt and income. At themaximum terminal he has worked out a figure of Rs. 141,182 andat the minimum terminal, his computations point to sum of Rs.80,182. However to reach these figures, he has omitted some termsand picked out others. Not willing to be outdone in arithmeticalcomputations, Mr. Coomaraswamy has worked out his own sum,covering the whole of the relevant period of time, and by hiscalculations he claims that there is an excess in and overRs. 70,600. Both learned attorneys, I presume are good arith-meticians, and each one claims the correctness of his computation.
In Mr. Coomaraswamy’s method of calculation, the wholeperiod is taken into consideration, but Mr. Senevratne is contentgo up to only the 19th of August, 1971.
The nurchase of Yelverton Estate on Deed 906 of 30-10.71 (P4)for a consideration of Rs. 350,000 was not only the biggest of theacquisitions, but it also involved several other transactions withindividuals, business houses and Banks. But yet Mr. Seneviratneis satisfied with computing only up to the 19th of August, 1971. Noexplanation is given by him for this-1 must admit, I am mystified.
MALCOLM PERERA, J. —Fernando o. Republic of Sri Lanka
I do not intend to deal with the figures for I am inclined tothink, that in this case, one cannot ignore the rest of th.e evidenceand go purely on arithmetical calculations, particularly on.account of the fact that this was not the basis on which the trialwas conducted.
In view of my findings on the three questions mentionedearlier, I quash all proceedings held on 4.9.74 and on all subse-quent days and set aside the conviction and sentence.
The question that has vexed me in this appeal is whether 1should acquit the appellant or order a trial de novo.
I am mindful that the policy that underlies section 23A of theBribery Act is to eradicate corruption in public life. In the caseof Public Prosecutor v. Yuvaraj (supra) the Privy Council inreference to section 14 of the Corruption Act of 1961 which issimilar to our section said :
“Corruption in the public service is a grave social evilwhich is difficult to detect, for those who take part in it, willbe at pains to cover their tracks. The section is designed tocompel every public servant so to order his affairs that hedoes not accept a gift in cash or in kind from a member ofthe public except in circumstances in which he will be ableto show clearly that he had legitimate reasons for doing so. ”
I also take into consideration that during a short period of about,ten months the appellant, whose pecuniosity was not all that high,had made acquisitions worth Bs- 460,007.50 cts.
However it is a basic principle of the criminal law of our land,that a retrial is to be ordered only, if it appears to the Court thatthe interests of justice so require.
The charge laid against the accused is of a serious nature, andit may be, a trial Court may find the accused guilty at a retrial’upon relevant and admissible evidence.
But it must be remembered that the acquisitions have beenmade about seven years ago.
. In the case of Peter Singho v. Werapitiya (supra) Gratiaen, J.in considering the question o'i retrial after a lapse of four years-from the date of the commission of the offences, said :
“ but here we are concerned with offences alleged.
to have been committed over four years ago, and it does notseem to me just to call upon him to defend himself a second-time after such an unconscionable lapse of time. I thereforeset aside the convictions and acquit the accused. ”
MALCOLM PERERA, J.—Fernando t>. Republic of Sri Lanka
Further the trial had been long and protracted. There have beenno less than thirty five trial dates. The accused would have tobear undue hardship and heavy expense to defend himself again.
I must also state that the defence in no way contributed to thereception of inadmissible and irrelevant evidence, which preju-diced the trial.
Under these circumstances, it seems to me to be harsh, andunjust to order a retrial. It does not appear to me that theinterests of justice require a retrial. I therefore acquit anddischarge the appellant.
In the matter of an application under section 354 (1) and (2) ofthe Administrative of Justice Law, No- 44 of 1973
Hatton National Bank Limited,
16, Janadipathi Mawatha,
There remains to be considered the Revision Application filedby the aggrieved petitioner,_
The aggrieved petitioner, the Hatton National Bank Limited,applies to this Court by way of revision to expunge and deletefrom the text of the judgement of the learned trial judge thefollowing observations and strictures, which adversely affect anddamage its business integrity, reputation and standing to whichit is entitled :
“No doubt, certain Banks and money lending institutionshave advanced brazenly large sums of money to the accusedwithout any principle attached to the payments.
One has to consider whether the payments made by theseinstitutions were bona fide or paid with an ulterior motive,with an idea of getting further help from the accused whowas holding such an influential position in the InsuranceCorporation. I am firmly of opinion that the payments by theHatton National Bank to the accused were so tainted thatone could hardly see even the basis for those payments.
After examining all the deposits and withdrawals fromthis account, there is no doubt whatever that Rs. 100,000from the Hatton National Bank were all tainted transactionsand which I consider proceeds obtained from bribery.”
The question that I have to determine is whether the Courtcan grant the relief prayed for, namely the expunction from therecord of the passage in the judgement complained of by thepetitioner.
376 'MALCOLM PERERA., J.—Fernando v. Republic of Sri Lanka
Section 40 of the Administration of Justice Law requires*consideration in this connection, and it is in the following terms :
“The jurisdiction vested in any Court by this law shallinclude all ministerial powers and duties incidental to such' jurisdiction, and nothing in this law shall be deemed to limitor affect the power of any Court to make such orders as.may be necessary to do justice or to prevent the abuse ofthe process of the Court.”
This section is in two parts, the first part deals with the minis-terial powers, duties and functions of the Court and the second!part, deals with the inherent powers of the Court “ to make suchorders as may be necessary to do justice or to prevent, the abuseof the process of the Court.”
' The present application falls within the second part of the-section.
The Criminal Procedure Code of India has a similar provisionin relation to the High Court. That section which is section 561Areads as follows :
“Nothing in this Code shall be deemed to limit or affect:the inherent power of the High Court, to make such ordersas may be necessary to give effect to any order under thisCode, or to prevent the abuse of the process of any Court or-otherwise to secure the ends of Justice. ”
-.In the case of the State of Utter Pradesh v. Mohamed Naim..(1964) A.I.R. S.C. page 703, where the conduct and behaviorof a particular Police Officer was in question, the judge made-disparaging statements against the entire Police Service, the-Supreirie Court directed that the derogatory material should beexpunged.
It is clear that in that cause the ends of justice did not require-those offending remarks. In the case of Narthupana Tea andRubber Estates Ltd. v. Perera, 66 N.L.R. pages 135, 138, wherethere were observations in the judge’s pronouncement,’ whichsuggested lack of restraint, Sansoni; C-J. remarked :
“I regret that it should be necessary to remind the learned'judge that the parties were “entitled to a judgement writtenwithout exaggeration or passion. Chief Justice Stone of the-United States of America once said, “ Precisely because judi-cial power is unfettered, judicial responsibility should be-discharged with finer conscience and humility than that of'any other agency of Government.”^
“ The ampler the power, the greater the care with which itshould be exercised. And the very circumstance, that ab-solute privilege attaches to judicial pronouncements imposes;
MALCOLM PEREKA, J. —Fernando v. Republic oj Sri Lanka
a correspondingly high obligation on a judge to be guardedand restrained in his comments, and to refrain from needlessinvective. ”
The right of making disparaging remarks in a judgment is•one that should be exercised with great reserve, moderation andrestraint, especially where the person disparaged has had littleor no opportunity of explaining or defending himself. For it mustbe remembered that such remarks imputing crime, moral delin-quency or improper conduct to a person are a constant source ofirritation and uneasiness, to him. Such remarks are bound tolower him in the public estimation and can haunt him like aspectre for life, and even bequeathing the evil to his children.Being fraught with such serious consequences, I think theyshould be made by Court, where any hesitation or reluctance inmaking them would impede the course of justice. A judge whomakes such remarks should give adequate reasons on a properanalysis of the facts. However a judge who condemns a personunheard acts unfairly. Persons to whom ignominous or improperconduct is attributed in judicial determinations, though theywere neither parties nor witnesses in the case have therefore,a just cause for complaint against unjust treatment.
In the case of Queen v. Murugan Ramasamy, 66 N.L.R. pages265, 284, where certain strictures were passed by Basnayake, C.J.in the Court of Criminal Appeal, the Privy Council observed :
“ It only remains to place on record one further observationwhich arises out of certain strictures contained in thejudgment of the learned Chief Justice reflecting upon thehandling of the prosecution’s case at the trial and the evidenceof Sergeant Jayawardene. His comment on the conduct ofcounsel for the Crown are to' be found in the last twoparagraphs of his judgment, and it is sufficient to note inreferring to them they attribute to the prosecution a lack ofproper fairness and detachment-in the presentation of the
case and even a conscious attempt to mislead the Court
Their Lordships must dissociate themselves from anyendorsement of the learned Chief Justice’s words of censure.”
‘ As to Sergeant Jayawardene’s evidence at the trial, itis described by the Chief Justice as a reprehensible attempt
at suggestio falsi et suppressio veriTheir Lordships
will merely state in regard to this witness that
neither their own analysis of his evidence nor the criticismsof it made by the learned Chief Justice have seemed to themto require so hostile a conclusion. ”
In the recent case of Gunawardena v. Inspector of PoliceRagalla, S.C. 758/70 ; M.C. Nuwara Eliya 36 867, S.C., Minutesof 26.1.76, this Court took the view that it had pow;er to expunge
VYT HIALINGAM, ,J. —Fernando r. Fa public of Sri Lanka .
disparaging remarks even on the application of those persons whowere neither parties nor witnesses, whose conduct has beenassailed in judicial pronouncements.
'Though the jurisdiction of the- Court exists and is wide inits' scope, I think it should be exercised only in exceptional casesto prevent gross injustice (vide Mitra v. Rasa Kali Charam^(1927), 3 Lucknow 287 and In Re Bikaru, 22 Lucknow 391.) For,it must be remembered that Courts below should be allowedto perform their duties and functions freely and fearlessly with-out undue interference by this Court-
In. view of my conclusion I hold that this Court has the powerto expunge from the record any derogatory remarks containedin a judicial prononucement, if the interests of justice requiresuch expunction.* ■
However in view of my order quashing all proceedings fromthe date on which the trial commenced, that is on the day hepleaded to the indictment namely on the 4th of September, 1974,it does not become necessary for me to make such order ofexpunction. I am inclined to think that once the proceedings arequashed the objectionable observations of the learned judgecease to exist.
Chitaley and Rao in their commentary on the CriminalProcedure Code of India say,
“ Where the entire judgment of the lower Court has beenquashed there is no necessity for any separate order, expung-ing the adverse remarks made against the witness (Vol. 3,
– 6th Edition, 1966, page 3875).”
Vide also the case of Narasinghe Bhadur, (1961) A.I.R., Allah-bad, 447 at 450.
In conclusion I wish to state that, this Court has the juris-diction and power, by acting in revision under section 354 (1)and (2) of the Administration of Justice Law, to expunge thedisparaging remarks complained of, by an aggrieved person. Ifind support for my view in the case of Gunwardene v. Inspectorof Police, Ragalla – (supra).
The appellant in this case was. charged with having betweenthe 31st day of March, 1969 and 31st day of October, 1971,acquired (a) the properties described in schedule A and (b) themoney described in schedule B annexed to the indictment, beingproperties or monies which could not have been acquired withany pa-t of his known income or which could not have been
YYTIi L.M.UfOAM, J.—Fernando <>. lie public of Sri Lanka•I7!i
any part of his known receipts or to which any part of his knownreceipts had been converted and which properties or moniesare deemed by section 23A (a) of the Bribery Act to have beenacquire by bribery and thereby committed an offence punisha-ible under section 23A (3) of the Act.
After trial he was convicted and sentenced to' seven years’rigorous imprisonment which is the maximum term of imprison-ment which could have been imposed for the offence, a fine interms of section 26A of Rs. 340,200 which in the opinion of thetrial judge was not less than the amount acquired by the appel-lant by bribery, in default to another term of seven years,rigorous imprisonment, and under section 26 to a penalty in thesame amount. The appellant has appealed against the convictionand sentence. The 31st March, 1968, was apparently chosen asahe commencement of the period during which he had acquiredthe impugned properties because, in D. C. Colombo CaseNo. 26334/S in which he was sued by Messrs Moosajes Ltd., inrespect of a sum of Rs. 1,771.32 being balance principal due on apromissory note for Rs. 2,000, the appellant had filed an affidavitdated 31.3.1968, setting out that apart from a monthly salary ofRs. 800 he had no other sources of income and no other movablew immovable properties.
However the appellant became a member of a scheduledinstitution for the first time only on 6.6.70 when he was appoint-ed a Director of the Ceylon Insurance Corporation. On 15.6.70,he was appointed a working Director and became the Vice-Chairman of the Board of Directors on 14th August, 1970. Heresigned on 6.12.71, after some questions had been asked inthe National State Assembly in regard to his acquisitions. AHdie impugned properties set out in schedules A and B of theindictment were acquired by him between 25.1.71 when MountHunasgiriya Estate was purchased by him and on 30th October,1971, when Yelverton Estate was bought, that is to say a shortperiod period of ten months. It is but right to point out at theoutset that these acquisitions are admitted by him. The onlyquestion was whether they were acquired by him from his knownincome and receipts or whether they were the proceeds ofbribery. Where they are not acquired from his known income andreceipts the section deems them to have been acquired bybribery until the contrary as proved.
Mr. E. R. S. R. Coofnaraswamy who appeared for the appellantsubmitted that the conviction, and sentence ought not to beallowed to stand on account of (i) the admission of irrelevantand inadmissible evidence, (ii) the grave misdirections of lawparticularly in regard to the burden on the accused to prove the
VYTHXA-LXNGAM, J.—Fernando v. Republic of Sri Lanka
contrary of the presumption, (iii) the unfair manner and lengthof the cross-examination of the appellant, and (iv) the attitudeof the trial judge towards the defence, and (v) the incorrectappreciation of the facts and misdirections on material questionsof facts.
In regard to the first matter the main objection was to theadmission of t5.ie evidence of the witness Mubarak Thaha whoseevidence, it was strenuously contended, was both irrelevant andinadmissible. The witness was at that time serving a sentenceof imprisonment, having been convicted by the Criminal JusticeCommission for exchange control violations on a massive scale.In connection with these offences he had been taken into custodyon 14.8.1971 by officers of the Criminal Investigations Departmentand had been grilled by them for several days. In the course ofthe questioning he had made the statement D2 to them in regardto his transactions with thq#appellant which however had noth-ing whatever to do with exchange control violations. He hadstated that the appellant used to obtain loans from him on post-dated cheques and that on one occasion he had given himRs. 60,000, for services rendered by him in connection with thestopping of police raids on his illegal betting business and inlegalising it. He understood that this amount was to be paid tosomeone. He made no statement to any authorised officer of theBribery Department in regard to this matter.
His name was not on the back of the indictment as a witnessfor the prosecution. His name was included in a list of witnessesand filed in Court on the day before the last date of the prose-cution evidence. On 4.10.1974, further trial was postponed for
and on 8.10.74, the Attorney-General filed this additionallist and moved for summons on A. M. Thaha and summons wasordered to be issued (J.E. of 8th October, 1974). On the same daythere are two other minutes. Journal Entry 10 states that thereis no time to issue summons as further trial was fixed for 9.10.74,
. the following day, and this was directed to be mentioned on9.10.74. Later however at Journal Entry 11 it is minuted thatsummons was to be' issued by special messenger and the jailauthorities were directed to produce the witness in Court at* 8.30'a.m.
On the following day Thaha was produced in Court and afterthe evidence of two witnesses had been led Mr. Seneviratnemoved to call Thaha. Mr. Bartlett who was appearing for theappellant in the absence of senior counsel objected to this evi-dence on the ground inter alia that the evidence was both>irrelevant and inadmissible and also that it was highly prejudi-cial to the accused. Mr. Seneviratne submitted that “ If this
VYTHIALINGAM, J.—Fernando v. lie public oj Sri Lanka
witness Thaha says that he gave a Rs. 50,000 bribe to the accusedand the court is prepared to accept the evidence, the presumpt-ion is irrebuttable (sic) and that would buttress the presumptionto that extent that a bribe was alleged to have been given to theaccused, i.e., of a specific act of bribery
The trial Judge thereupon made the following order “ I over-rule the objection raised in view of the submissions made by Mr.Seneviratne and I allow the witness to be called In other words,the witness was called for the specific and only purpose of givingevidence to the effect that during thp relevant period he gave abribe of Rs. 50,000 to the appellant and Thaha duly gave thatevidence. Thereafter the prosecution closed its case.
The fundamental principal in a criminal trial is that wherethe defendant pleads not guilty every essential matter bearingupon the issue of his guilt must be proved by the prosecution.The main general rule governing the entire subject of relevance,admissibility and weight of evidence is that all evidence which issufficiently relevant to an issue before the court is admissibleand all that is irrelevant or insufficiently relevsuit should beexcluded. These principles are embodied in our EvidenceOrdinance (Cap. 14) which contain the rules of evidence whichwe are bound to administer, except in the case of casus omissuswhere such a question must be determined in accordance withthe English Law of Evidence for the time being (Section 100).
Chapter 11 of our Ordinance deals with relevancy of facts andsection 5 sets out that “ Evidence may be given In any suit orproceeding of the existence or non-existence of every fact inissue and of such other facts as are hereafter declared to berelevant and of no others.” In other words all other facts areirrelevant and are to be excluded. Sections 6 to 55 declarecertain facts to be relevant. Relevance is a condition precedentt.o admissibility and if a fact is not relevant to a fact in issue orto a relevant fact it is irrelevant and inadmissible.
In the case of Mendis v. Paramasamy, 62 NL.R. 302 at 306,which was a civil case in which the question for decision in theappeal was whether a letter Dl. was admissible or not,Basnayake, C. J. said “Under our Evidence Ordinance, evidencemay be given in any suit of the existence or non-existence ofevery fact in issue and of such other facts as are declared to berelevant by that Ordinance and of no others (section 5). Unlessa fact is declared to be relevant by a section of the EvidenceOrdinance, no evidence of it can be given and there is nosection which declares Dl to be relevant”.
VYTHIALIXG AH, J.—Fernando v. Republic of Sri Lanka
In a charge under section 23 A of the Bribery Act the burdenis on the prosecution to prove that the appellant acquired certainproperties during that period and secondly that such propertiescould not have been acquired with part of his known incomeor receipts or to which suph had been converted. In this•context “ known income or receipts ” obviously means knownto the prosecution. In India the Prevention of Corruption Act1947 contains the same words and in the case of C.D.S. Swamiv. The State, A.I.R. (1960) S.C. 7 at page 11, Sinha J. whodelivered the judgment of the Supreme Court said “Now theexpression ‘ known ’ source of income must have reference to.sources known to the prosecution on a thorough investigationof the case. It was not and it could not be contended that4 known sources of income ’ means sources known to theaccused. The prosecution cannot in the very nature of thingsbe expected to know the affairs of an accused person. Thosewill be matters ‘ specially within the knowledge ’ of the accusedwithin the meaning of section 106 of the Evidence Act ”.
Once the prosecution has established these two facts and•shown that there is a disparity between the known income andreceipts and the acquisitions then the section provides that “itShall be deemed, until the contrary is proved by him that suchproperty is or was property which he has or had acquired bybribery or to which he has or had converted any propertyacquired by him by bribery”. In the instant case the appe-llant sought to discharge this burden by proving that he hadother income.and receipts besides those which were known tothe prosecution. The latter may then show that the appellantdid not'in fact receive such income or receipts or that such in-come or receipts were in fact bribes for sub-section 2 of sections'23A sets out that “in subsection (1) ‘income’ does not includeincome from bribery and receipts do not include receipts frombribery ”.
One test of relevancy is to ask oneself the question whatdoes this evidence of Thaha prove in relation to those facts inissue or to facts declared to be relevant to them? The answerobviously is precisely nothing. On the other hand it is gravelyprejudicial to the appellant as it brands him as a bribe taker.'It was not the appellant’s. case that this sum of Rs. 60,000 waspart of his income or receipts with which he sought to bridgethe gap between his income .and receipts , and his acquisitions.In such a case it was open to the prosecution to prove that itwas in fact.a bribe, not to show that he was a bribe taker, butio exclude it from his, income and receipts, in terms of section23 A (2).
YYTHlAl.i XGAM, .1.—t'nrua rulo v. lie public of Sri Lanka;WS
Indeed, the appellant had included a sum of Rs. 45,000obtained by him as a loan on a post-dated cheque from Thaha,among his income and receipts. Thaha in the course of hisevidence confirmed this and the prosecution did not contest it.He had in fact repaid Rs. 22,000 out of it to Thaha on the dayof the latter’s arrest and a further sur-il of Rs- 5,000 after that tohis wife.
Mr. Seneviratne submitted that there was no restriction onthe number of witnesses he could call or the nature of theevidence he could lead to establish his case. This is undoubted-ly true. But such evidence should pass both tests, of relevanceand admissibility. Mr. Seneviratne argued that the evidencethat the appellant had accepted a bribe of such a large sumduring the relevant period would show that the appellant musthave used this sum to acquire some at least of the impugnedproperties, and in this sense it would “buttress” thepresumption.
But a presumption which the law requires a Court to drawon the proof of the basic facts needs no buttressing. Unlike thepresumptions in section 114 of the Evidence Act which theCourt may or may not draw, the presumption under this sectionis one which it is incumbent on the Court to draw on the proofof the basic facts, for the words used in the section are “ it shallbe deemed ” until the contrary is proved. In India in section4 (1) of the Prevention of Corruption Act (1947) the words usedare “. … it shall be presumed unless the contrary is proved.. ’’
In the case of Dhanuvantrai v- The State of Maharashtra, A.I.R.(1964) S.C. 575 at 580, in considering these words Mudhelkar, J.said “ It is well to bear in mind that whereas under section 114of the Evidence Act it is open to the court to. draw or not todraw a presumption as to the existence of one fact from theproof of another fact and it is not obligatory upon the. Court todraw such presumption, under subsection (1) of section 4,however, if a certain fact is proved, that is, where any grati-fication (other than legal gratification) or any valuable thingis proved to have been received by an accused person, the courtis required to draw the presumption that the perspn receivedthat thing as a motive or reward, such as is mentionedin section 161 [.P C. Therefore the court has no choice in thematter once it is established that the accused person receiveda sum of money which was not due to him as a legal remune-ration ” Once the basic facts are proved then the existenceof the presumed fact must be taken to be proved ana no furtherevidence is necessary either to prove its existence or tobuttress the presumption.
VYTHIALINGAM, J.—Fernando v. Republic of Sri Lanka
Besides there is no burden on the prosecution to establish thesources with wfnich the properties were acquired or that theywere in fact bribes. As Samerawickreme, J. delivering theunanimous judgment of a Bench of 5 judges of this Courtpointed out in Karunaratrfe, S C. 16/74—D.C. Colombo 75/B ;SC. Minutes 20.6.1977, which was also a case in which theaccused was charged under this very section “ To require proofthat such an individual has in fact received a reward would beto defeat the purpose of section 28A which is designed againsta person in respect of whom there is no proof of the actualreceipt of a gratification but there is presumptive evidence ofbribery
In Wanigasekera, 79(1) N.L.R. 241, the defence took up theposition that in discharging the burden of proving the basic fact,it was incumbent on the prosecution to establish not merely thatthe income and receipts were not what they purported to be, butalso that they were proceeds of transactions tainted with bribery.In rejecting this submission Wimalaratne, J. with the otherJudges agreeing said, “ I am therefore of the view that the basicfact required to be proved in a prosecution under section 23A ofthe Bribery Act is that the accused acquired property whichcannot or could not have been acquired with any part of hissources of income or receipts known to the prosecution afterinvestigation ; the prosecution is not required to prove that theacquisitions were made with income or receipts from bribery ”.
By the time Thaha’s evidence was led the prosecution hadalready established a wide disparity between the sources ofincome and receipts known to the prosecution which were onlythe appellant’s earnings from the Insurance Corporation and theacquisitions and the presumption operated. As far as the case forthe prosecution was .concerned Thaha’s evidence proved nothing.It probative value was nil. It was wholly unnecessary, andtotally irrelevant.
On the other hand it was highly prejudicial to the accused.Section 54 of our Evidence Ordinance provides that “ In criminalproceedings the fact that the accused person has a bad characteris irrelevant; unless evidence has been given that he had a-goodcharacter in which case it becomes relevant ”. In the instantcase the accused did not put his character in issue. In thisconnection the classic formulation of the principle by LordHerschel in Makin v. Attorney-General of New South Wales,(1894) A.C. 57 at 65, has been accepted as correct in England,and has been consistently followed in our country as beingapplicable to our law, ever since, and has recently beenapproved by the House of Lords in Board.rn.an, (1973) 3 W.L.R.673.
V YTI1IA LING A 61, J.—Fernando v. Republic oj Sri Lanla
It is as follows : —
“ It is undoubtedly not competent for the prosecution toadduce evidence tending to show that the accused had beenguilty of criminal acts other than those covered by theindictment for the purpose of leading to the conclusion thatthe accused is a person likely from his criminal conduct orcharacter to have committed the offence for which he is beingtried. On the other hand, the mere fact that the evidenceadduced tends to show the commission of other crimes doesnot render it inadmissible if it be relevant to an issue beforethe jury and it may be so relevant if it bears upon thequestion whether the facts alleged to constitute the crimecharged in the indictment were designed or accidental, orto rebut a defence which could otherwise be open to theaccused.”
The principle enunciated is in two parts : the first deals withthe exclusion of such evidence and the second with the circums-tances in which such evidence is relevant and admissible. Thegeneral rule of exclusion referred to in the first part was statedby Viscount Sauky, L.C. in Maxwell, (1935) A.C. 309 at 317, to
express <:one of the most deeply rooted'and jealously
guarded principles of. our criminal law ”. Two reasons havebeen advanced for this exclusion. One is that such evidence issimply irrelevant. No number of similar offences can connecta particular person with a particular crime. Such evidence hastherefore no probative value and so has to be excluded. Theother is that the prejudice created by the admission of suchevidence outweighs any probative value it may have.
Thus in Kilbourne, (1973) A.C. 729 at 757, Lord Simon ofGlaisdale explained this reason as follows : “ The reason whythe type of evidence referred to by Lord Herschel in the firstsentence of the passage is inadmissible is not, because it is irre-levant but its logically probative significance is considered tobe grossly outweighed by its prejudice to the accused so that afair trial is endangered if it is admitted ”. Such a “ deeplyrooted and jealously guarded principle of our criminal law”cannot be permitted to be eroded by some nebulous considera-tions of “ buttressing ” a presumption created by law. In thisconnection the words of Lord Du Parcq in Noor Mohamed,(1949) A.C. 182 at 191, are quite apposite. He said “A plea ofnot guilty puts everything in issue which is a necessary ingre-dient of the offence charged and if the Crown were permittedostensibly to strengthen the evidence of a fact which was notdenied and could not be subject of rational dispute, to adduceevidence of a previous crime, it is manifest that the protectionafforded by the jealously guarded principle first enunciatedwould be gravely impaired ”.
YTlTHIALTXGAM. -T.—Fernando v. Republic of Sri Lanka
He continued at page 192 “ It is right to add, however, that inall such cases the judge ought to consider whether the evidencewhich it is proposed to adduce is sufficiently substantial havingregard to the purpose to which it is professedly directed to make'.it desirable in the interest of justice that it should be admitted.'If, so far as that purpose is concerned, it can in the circums-tances of the case have only trifling weight, the judge will be. right to exclude it These words were quoted with approvalin Sathasivam, 55 N.L.R. 255 at 258, by Gratiaen, J. In that casea letter written by the deceased to a Superintendent, of Policeexpressing apprehension in regard to the impending arrival inthe Island of the accused, her husband, was sought to be ledas evidence of motive. In rejecting the evidence Gratiaen, J..said “It is important to realise in this connection that on theone hand the evidential value if any of P24 standing by itselfis. slender, whereas the prejudicial effect which its receptionmight have on the minds of the jurors would potentially be so.substantial as seriously to impair the fairness of the trialThe trial Judge in his judgment stated that “In this contextit is positive that the accused had got a bribe during this periodand that possibly could be the source of his funds and accordinglythe provisions of sections 9 and 11 of the Evidence Ordinance are^relevant Apparently he thought. that the evidence wasadmissible under these two sections. This is a wrong approachfor, as I have'pointed out it Was i no part of the burden on theprosecution nor of the functions of the trial Judge,to trace the.source, of. the funds-for, the acquisitions. If, the appellant hadfailed to bridge the gap between thd acquisitions and the sourcesof income or receipts which he had disclosed then the presump-tion operated and he had failed to prove the contrary and wouldbe guilty of the offence. No further evidence would be necessaryat all.
If, on the other hand, he had succeeded in bridging the gapwith the disclosed sources of income and receipts which are notshown to be bribes then he had proved the contrary and rebuttedthe presumption. In such an event, where there are suchsources of income and receipts to account fully for theacquisitions, one cannot assume that merely because" theappellant had received a bribe during the relevantperiod, he must have acquired the properties with theproceeds of the bribe money rather than with his disclosedsources of income and receipts. It is a fundamental principle of•our criminal law that every assumption should be in favour ofinnocence and against guilt. So that Thaha’s evidence would notbe relevant Under section 9 as supporting the inference that itwas with the bribe money that, he acquired the impugned pro-perties or to rebut the inference that he acquired them with his
V VTJ1.1 A J d XO AM, J.—Vernando v. Republic oj Sri Lanka
legitimate sources of income or receipts. Nor would it be relevantunder section 11 (a) or (b) as being inconsistent with the factthat lie acquired the properties with his legitimate sources or asbeing consistent with the fact that he acquired them with thebribe money or render it more probable or improbable as the casemay be. To permit the prosecution, under the guise of “ buttress-ing ” the presumption, to prove obliquely the specific act of abribe, in regard to which there is no presumption at all, by astandard of proof less than proof beyond reasonable doubt iscontrary to all principles of criminal justice. The trial Judgewas therefore in error in thinking that the evidence wasadmissible under sections 9 and/or 11.
The evidence, however, could have been relevant andadmissible to rebut a defence which was open to the appellant.In Karunaratne (supra) Samerawickrema, J. pointed out that“ I do not think, however, that there is any reason why in anappropriate case an accused person may not show on the proba-bilities that the property was not acquired by bribery withoutdisclosing the source from which he obtained the property, ifin the particular circumstances of the case he can persuade theJudge of that fact. The learned Deputy Director of Public Prose-cutions has also submitted that an accused should not establishsuch a fact by a bare assertion from the witness box. Whether ornot an assertion by an accused on oath should or should not beaccepted must depend on the circumstances of each case, credi-bility which the trial judge is prepared to accord to the witnesswho gave that evidence and other circumstances ”.
In other words that it is open to an accused charged underthis section to rely on his sworn testimony that he had notaccepted any bribes during the relevant period to rebut the pre-sumption in addition to, or without disclosing, his sources ofincome and receipts. In such a case it would be both relevantand admissible for the prosecution to rebut that evidence byleading evidence to show that the accused had in fact accepted abribe during the relevant period. Such evidence would comeunder the second part of the principle stated by Lord Herschel inMakin (supra).
However the issue did not arise in the instant case. Neilherin his explanation submitted to the Bribery Commissioner norin his evidencc-in-chief in the case did the appellant rely on anysuch facts. In his examination-in-chief he merely denied that hehad accepted a bribe from Thaha. Only in his re-examination hewas asked the general question, “ Have you ever accepted agratification or a bribe from anybody as an inducement or areward for doing any work or helping anybody as a Member
VYTHIALINGAM, J.—Fernando v- Republic of Sri Lanka
of the Board or as Vice-Chairman ? ” and his answer was “ No.Never. ” But this does not mean that it was raised as a generaldefence in the case that he had not acquired the properties by-means of accepting bribes.
As Basnayake, A. C. J. pointed out in Waidyasekera, 57 N.L.R.202 at 212, “ It is sufficient to say that under our law too theprosecution may adduce all proper evidence tending to prove thecharge against the accused, including evidence tendirig to showthat the accused had been guilty of criminal acts other thanthose covered by the indictment without waiting ior the accusedto set up a specific defence calling for rebuttal ”. Neverthelessas pointed out by Lord Summer in Thompson, (1918) A.C. 221at 232, “ the prosecution cannot credit the accused with fancydefences in -order to rebut them at the outset with some dammingpiece of evidence
In the instant case the general defence that he had not acceptedbribes and so had not acquired the properties by means of bribeswas at no time foreshadowed by the accused in his explanationin the cross-examination of the witnesses for the prosecution ortaken up in the course of his evidence except in the isolatedquestion and answer referred to in his re-examination. It neverarose for consideration or decision. It was never a live issue inthe case. Nor was the evidence of Thaha sought to be led orused by the Judge for this purpose of rebutting this possible•defence.
Indeed Mr. Seneviratne submitted that the observations ofSamerawickreme, J. were obiter and in any event he arguedthat it does not set out the law correctly and invited us to sayso. I am pointing this out to show thas the purpose for whichThaha’s evidence was led was not to rebut any possible defencewhich may have been open to the accused for in the view ofMr. Seneviratne such a defence was not open to the accused.Besides, the decision in Karunaratne’s case was delivered inJune 1977 nearly two years after to the judgment in the instantcase. However, as I have pointed out such a defence was nottaken up in the instant case and it is therefore unnecessary forus to say anything about the correctness of the view taken bySamerawickreme, J. in that case. I
I hold therefore that the evidence of Thaha was both irrelevantand inadmissible and in view of the express prohibition againstthe admission of such evidence in section 54 of the Evidence■Ordinance and its highly prejudicial nature, should have been•excluded by the trial Judge. In Rajakaruna, S.C. 31/75—D.C.Colombo 202/B ; S.C. Minutes 27-2.76, where such evidence hadbeen admitted Sirimane, J. with other Judges agreeing, pointed
VYTHIALINGAM, J.—Fernando v. Republic of Sri Lanka
out that “ Fairness in prosecution and the interests of justice (ofwhich fairness is a fundamental part) requires that evidence ofa previous similar act, as was led in this case should never be ledunless it fell within some provisions of the Evidence Ordinancewhich clearly made it admissible as such evidence merely tendsto deepen suspicion without proving guilt and it is so prejudicialto the accused that it deprives him of the substance of a fairtrial.’'
Another complaint in regard to Thaha’s evidence was thatCounsel for the accused had not been afforded sufficient time toobtain proper instructions from the appellant for the purposesof cross-examining him so as to amount to a denial of the veryright itself to be defended by an attorney-at-law guaranteed toevery accused under the law.
As I pointed out the witness was suddenly sprung on theappellant after a notice which had been served on him only onthe previous evening at 5 p.m. He said' he was unable to contacthis Counsel and give him any instructions in regard to thewitness that evening. Even Thaha did not know that he had beenbrought to Court to give evidence till the morning of the day onwhich he gave evidence. Senior Counsel did not appear on thatday for the appellant. At the conclusion of the examination-in-chief, Mr. Bartlett moved for a date to get more instructions fromhis client. This was refused and Counsel did the best as he couldunder these circumstances and concluded his cross-examinationon that very day itself-
Section 13(i of the Administration of Justice Law is asfollows: —
“ Every person accused before any Criminal Court may ofright be defended by an Attorney-at-Law”.
Section 287 of the former Criminal Procedure Code was inidentical terms. In Premaratne v. Gunaratne, 71 N.L.R. 115, T. S.
Fernando, J. referring to this right said that it is “one
now ingi-ained in the Rule of Law which is recognised in the lawof criminal procedure of most civilised countries and is one ex-pressly recognised by section 287 of our Criminal ProcedureCode In order to comply with this provision it is not sufficientthat the accused should in fact be represented by an Attorney-at-Law at the trial. He should have been afforded the time andopportunity to give full instructions and to prepare the case.Where the witness is suddenly sprung on the accused withoutsufficient notice and he is denied the opportunity to instruct hiscounsel it is as if had been denied the very right itself.
VYTHTALVNGAM, J.-—b'cnumdo Republic of Sri Lanka
The only reasons given by the trial judge for the denial ofthis opportunity are that it had been agreed on 3.10-74 that trialwould be held from day to day but that on 4.10.74 Counsel forthe accused had stated that the only available date was 9.10.74^,that is that very day, and that the case had to be concluded asquickly as possible. It is not clear why this was so. Be that as itmay, these are not valid reasons for depriving the appellant ofsuch a fundamental right “ now engrained in the rule of lawand recognised in the law of criminal procedure of most civilis-ed countries
How important such a right is, is illustrated by the case ofJayasinghe v. Munasinghe, 62 N.L.R. at 527. In that case the.application of the accused, who had been in police custody fromthe time of his arrest on the previous day, was refused as theMagistrate was informed that a postponement of even 24 hourswould involve the complainant, who was a foreign tourist, beingdeprived of the opportunity of leaving Ceylon as arranged byher. Dealing with this reason T. S. Fernando, J. said at page528 “However understandable this desire may have been, atrial at which the appellant was deprived of one of the most valu-ed legal rights of an accused,person in spite of his expressed desireto exercise that right, cannot be said to be a fair trial Theconviction and sentence was set aside even though it involvedthe accused being allowed to go free, as a fresh trial could notbe had on account of the witnesses having left Ceylon. Ininstant case the reasons of-the trial judge do not- even have themerit of being understandable.
In ' regard to this right Weeramantry, J. observed inSubramaniam v. Inspector of Police, Kankesc.nthv.rai, 71 N.LJEL204 at 209, that “It needs little reflection to realise that the rightwe are considering is a majay faceted one, not truly enjoyed un-less afforded in. its many varied aspects. Thus the right to apleader means nothing, if it is not associated with the time andopportunity to retain one, nor can there be a.true exercise offinis right where a pleader has in fact been retained but beenclearly afforded insufficient time for the preparation of his case
and for obtaining instructions from the accused .Hence the
right does not mean merely that the accused person is entitledin theory to be defended- by a pleader but also that he mustenjoy all these concomitant privileges without which theright is reduced to a cipher ”.
In the case of Peter, 64 N.L.R. 120, Counsel retained by theaccused did not appear on the date of the trial. On that dayCounsel was assigned at 11 a.m. and the trial was taken upat 12.30 p.m. and the accused was convicted. In appeal the
VY'i HIAJ/I ‘COA!1. -I. -l'ernumt» r. lie public of Sri LartLa•»!)!
Court of Criminal Appeal set aside the conviction on this soleground and directed a fresh trial, Basnayake, C.J. remarking,“ We agree that assigned Counsel should be allowed sufficienttime for the preparation of his case and for obtaining instruct-ions irom the accused
Mr. Seneviratne submitted that there was a full crossexamination of the witness Thaha on all relevant matters andthat there was nothing more that Counsel could have askedeven after obtaining further instructions. It is not for us tospeculate on what the ingenuity of Counsel could have devised ifafforded the opportunity of obtaining full and proper instruct-ions. Quite clearly one c f the concomitant privileges of theright to be defended by the Counsel of his choice, referred toby Weeramantry, J. without which it would be reduced to amere cipher, is the right of the appellant to have been givensufficent time and opportunity to give fuU and proper instruc-tions to his counsel and to prepare for the cross-examinationof the witness. He has been denied this in respect of an im-portant witness on such a gravely prejudicial aspect of the caseagainst him, and thus he has been deprived of the very subs-tance of a fair trial.
A third complaint in respect of the evidence of Thaha wasllrat having regard to the quality of the witness, the nature oflus evidence and the circumstances in which it was given, thetrial Judge had not sufficiently probed and examined it with thatdegree of care so necessary in such cases. In regard to thequality of the witness the trial judge himself, accepts thedefence submission that Thaha was an unreliable witnessbecause he summarises without comment the defence sub-mission as follows:—“It was suggested that Thaha should nothave been called to testify on behalf of the prosecution, becausehe was a disreputable businessman and well known racketeer inforeign exchange. He was a self confessed giver of bribes, andhe was also said to be the owner of the famous vice spot knownas the Atlanta Club ”.
The defence also suggested that Thaha’s evidence should bedisbelieved because he himself would have been an accomplicebecause he had given a bribe to the accused. In regard to thissubmission the trial Judge's only comment was that he didnot overlook sec lion 79(1) of the Bribery Act, as if that sectionauthorised the acceptance of a bribe giver’s evidence withoutexamination or without due and proper consideration of thequality of the witness and nature or the circumstances of theevidence. Section 79(1) of the Bribery Act merely sets outthat the giver of a bribe shall not be regarded as an accompliceand that the decision or finding of the court shall not be illegal
VYTHIALINGAM, J.-—Fernando v. Republic of Sri Lanka
merely because it proceeds upon the uncorroborated testimonyof such giver. It does not do away with the need to probe suchevidence and examine it with due care. As the Privy Councilobserved in Moses, 75 N.L.R. 121 at 126, “Finally it is at leastdoubtful whether the quality of the prosecution witnesses wasproperly estimated by the District Judge. If bribery had beenestablished they would have been involved in it as participantsand there is nothing in the Bribery Act section 79(1) which ofitself enhances their credibility”.
Thaha’s evidence is also doubtful on three important matters :in regard to when he gave the money, as to whether it was inone lump sum of Rs. 60,000 or in two instalments of Rs. 50,000first and Rs. 10,000 later, and as to who was present on the secondoccasion. The trial Judge himself says that Thaha was not surewhen these monies were given. In his statement to the policeD2 made some time in 1972 he did not mention the payment in twosums or as to who were present at the time he gave the money.He also said that it was Rs. 50 or Rs. 60.000. Thaha was a verysick man when he gave evidence and in fact Court had to givehim ten minutes to go to the toilet. He himself said in hisevidence “ I have absolutely no idea of time or dates since Ibecame worried. When I wds in police custody I was not in thepresent state. While in police custody I had my whisky, I hadmy chicken and good food. I do not have them now in prison. Iam not as fit as when I was in police custody. But I am able torecollect what I have said in my statement ”. Earlier he said thathe was “having heart trouble/diabetes, water in the knee and:dermatology ”.
Despite these deficiencies, to which he gave no consideration-whatsoever, the trial Judge accepted Thaha’s evidence all too-readily and found as a positive fact that the appellant had takena bribe during this period. This finding is quite obviously vitiatedby the fact that, as I have pointed out, the trial Judge had notcritically examined and sufficiently probed Thaha’s evidenceparticularly in regard to the deficiencies I have pointed out.Mr. Seneviratne submitted that even if Thaha’s evidence isrejected and excluded altogether still there is sufficient evidencefor the. conviction to be sustained. I regret I am unable to agree.Thaha’s evidence so permeates and influences the decision onevery single aspect of the case, that it is not possible to disen-tangle it from the rest of the evidence.
The trial Judge in his judgment states that “ this evidencebecome relevant in'the decision ultimately any court had to•arrive at ”. In the circumstances of the instant case the decisionthat the Court had to arrive at was whether there was a disparity
VYTHIAL IXG.VM, J.—Fernando v. Republic of Sri Lanka
between the income and acquisitions and if so whether theappellant had proved the contrary of the presumption that theywere acquired by him by bribery. The trial Judge’s constantrefrain in regard to each one of the sources of income andreceipts revealed by the appellant is that one should examine thecharacter of the payment. In thus considering the character ofthese payments the trial Judge would naturally have been con-siderably influenced by the fact that he had come to the quitedefinite finding that the appellant had taken a bribe during therelevant period and from the propensity of the appellant towardstaking bribes it is but an easy step to find that all these trans-actions were tainted. Nor where credibility of witnesses us somuch involved, is it possible for us now, without the advantageof having heard or seen the witnesses, to say that there is suffi-cient other evidence to sustain the conviction quite apart fromthe evidence of Thaha.
It has been suggested that different considerations would applywhere irrelevant and inadmissible evidence has been admittedin a trial before a lay jury and where the trial is before a trainedlawyer-judge. But this can only be so where it is evident thatthe trained lawyer-judge has not taken such evidence into con-sideration in arriving at his decision in regard to the guilt orinnocence of the accused. For, as Gratiaen, J. observed in PeterSingho v. Werapitiya, 55 N.L.R. 155^at 157, “ I do not see howthis distinction can be drawn where a Judge of first instance has,in spite of his legal training and experience permitted himself,through an improper appreciation of the law, to allow evidenceto be led which is of such a character as to prejudice the chancesof a fair trial on the real issues in the case. ”
’ I hold therefore that, on account of the improper reception ofthis irrelevant and inadmissible evidence, on account of thefailure of the Judge to afford the attorney for the appellant suffi-cient time to obtain proper instructions and prepare for the cross-examination of Thaha and on account of his failure to correctlyassess and evaluate the evidence of Thaha the accused has beendenied the substance of a fair trial and that for these reasonsthe conviction and sentence ought to be quashed.
There is another reason why the conviction and sentenceshould be set aside and that is on account of a grave misdirec-tion in law in regard to the burden on the appellant to provethe contrary of the presumption created by section 23A (1) ofthe Act. Our Evidence Ordinance applies to civil and criminalproceedings alike and the definition of “ proved ” and “ disproved”contained in it draw no explicit distinction between factsrequired to be proved by the prosecution in criminal proceedings
3U4VYTHIAX.iKG.-VM:, J.—Fernando v. Republic of Sri Lanka
and facts required to be proved by a successful party to civilproceedings. Yet it cannot be supposed that the Evidence Ordi-nance intended by a provision contained in what purports tobe a mere definition section tc abolish the historic distinction,accepted and acted upon over a very long period of time, andone so fundamental to the administration of justice in ourcountry, between the burden which lies upon the prosecutionin criminal proceedings tc prove the facts which constitute, anoffence beyond all reasonable doubt and the burden which liesupon a party in a civil suit to prove the facts which constitutehis cause of action or defence upon a balance of probabilities.
The extent of the burden which lies on an accused person to-prove the contrary as set out in section 23A (1) has been thesubject of decision by this Court in two cases. In Karunaratne(supra) Samerawickrame, J. referring to this burden said "Asthis is a matter in which the onus is on the accused person itwill be sufficient if he establishes it on a balance of probabili-ties.” Accepting this as a correct statement of our law Wimala-ratne, J. said in Wanigasekera (supra) “ If the tribunal isreasonably satisfied, that is satisfied to the extent that theaccused acquired the properties by proceeds other than incomeor receipts from bribery, then the accused is entitled to anacquittal ”. In regard to what the degree of proof in a civil caseis, Denning, J. said in Miller v. Minister of Peiisions, (1947)A.E.R. 372 at 374. “The degree is well settled. It must carry areasonable degree of probability, but not so high as is requiredin a criminal case., If the .evidence is such that the tribunal cansay ‘We think it more probable than not’ the burden is dis-charged ; but if the probabilities are equal* it is not.”
In the instant cash the trial Judge correctly set out the burdenon the appellant when he said that the quantum of proof indischarging the burden on the appellant is on a balance ofprobability. But a careful examination of the judgment showsthat in applying this standard to the facts in the case he hasimposed on the appellant a very much higher standard than amere balance of probability. For, in the course of his judgmenthe said that, beside proving the various sources of his wealth,there was another duty cast on the appellant and that is toprove that the sources are free from suspicion or doubt. Inanother place in his judgment he was even more categorical.He said that “the burden is on the accused to prove that themoney he realised from the acquisitions of land (ought to bemoney with'which he made the acquisitions) is money thatjiedid not accept in contravention of the Bribery Act. He has not
V YTHIAU.JN' JAM, J.—It'eriutnUo v. ttcpublipof Sri Lanka
only to prove that alone but he has to prove that tnese trans-actions are free, from taint and that the character of thesepayments are above suspicion. ” And again he stated that theCourt had to examine the character of each payment and it isnot enough for the accused to leave a doubt in the mind of thecourt because leaving a doubt alone will not be sufficient. It isin the light of this burden on the appellant that he hasexamined each of the transactions and come, to the conclusionthat they are not free from taint or suspicion or doubt.
This necessarily cast on the appellant a ver^l much higherdegree of proof than on a mere balance ‘of probability as itrequired the appellant to remove all doubts5 and suspicion inrespect of each of the transactions in addition, to showing thatthey were not the proceeds of bribery. . We arq familiar withthis in the proof of wills where,if there, are, suspicious circums-tances it is for the propounder of the will to .remove suchsuspicion—Samarakoon v. Public Trustee, 65 JLL.R. 100 at 115.That is because the conscience of .the cqurt must be satisfied.No such considerations apply where a matter has to be provedon a balance of probability only. . Even in^a criminal caseaccount must be taken of a doubt only if it'results in a rationalopinion that the contradictory of the issue is more than aremote possibility. For, as Denning, J. said in Miller v. Ministerof Pensions (supra) “if the evidence is so strong against a manas to leave only a remote possibility in his favour which canbe dismissed with the sentence * of course it is possible but notin fae least probable ; ’ the case is proved beyond reasonabledoubt, but nothing short of that will suffice
Having regard to the definitions of “ proved ” and “ disproved ’’in our Evidence Ordinance the court must be satisfied on thematters before it in order to rebut the presumption that theacquisitions were not made from the proceeds of bribery orthat it considers it so probable that a prudent man ought, in thecircumstances of the particular case to act upon thesupposition that such is the case. Normally in a civil case accountmust be taken of a doubt only if it results in a rational opinionthat an issue is more likely than not. One may have suspicionsor doubts and yet consider the existence or non-existence of afact in issue as being more probable than not. However asDenning, J. said if the probabilities are equal it cannot be takenas proved.
Thus in Waniqasekera (supra) the accused had claimed that aloan of Rs. 20.000 from Messrs. Caves Finance and Land SalesLtd. on a hire purchase agreement was a part of his known
380VYTHIAUNGAM, J.—Fernando v. Republic of Sri Lanka
income and receipts during the relevant period. The trial Judgeheld that it was a bribe in the guise of a loan, because Caveshad not taken any steps to get back the money lent until afterthe accused had ceased to be a director of the Bank of Ceylonand also because the Board of Directors at a meeting in whichthe accused had participated sanctioned overdraft facilities tothe tune of Rs. 500,000. These are undoubtedly suspicious
circumstances and even if all the formalities for the grant of theloan had been gone through, the necessary documents signed,and Caves had made attempts to recover the money lent beforethe accused ceased to be a Director, such a loan may be regardedas a bribe if the circumstances in which was granted were such.
In appeal this Court held that on a balance of probabilities it. was a genuine loan. In the course of his judgment Wimalaratne,
J.said “ We cannot, however, refrain from making the observa-tion that persons in the position of Directors of Banks and othergovernment lending institutions should avoid borrowing from
firms which are the recipients of credit; from such governmentinstitutions. However genuine such transactions may be theyleave room for suspicion of corruption and graft and bring dis-credit not only to them but also to the institutions concernedIn other words, although there were doubts and suspiciouscircumstances in regard to the transaction yet it was held on abalance of probabilities that the genuiness of the transaction asa loan had been established.
So that the existence of doubts and suspicions is not the deter-mining factor in deciding whether the appellant had proved thecontrary or not. In an ordinary criminal case where there is r.oburden on the accused then even if he does not prove what hesets out to prove on a balance of probability yet by his evidencehe may cast doubt on the prosecution case and so be entitled toan acquittal. That is because by reason of such doubt the prose-cution has not proved its case beyond reasonable doubt. It is notopen to the prosecution in this sense to cast doubts on the' appellant's evidence and say that he has not proved his case, ona balance 6f probability because of this doubt. But where as inthis case there is a burden on the appellant he cannot leave thematter in doubt in the sense that the probabilities are equal, forthen the balance is not tilted in his favour. However this doesnot apply to the proof of the basic facts on the proof of whichdepends the existence of the presumed fact for in regard to themthe burden is always on the prosecution to prove them beyondreasonable doubt So that, therefore, the determining factor ison the probabilities, in whose favour is the balance tilted.
VYTHIA'LI'NGAM, J.—Fernando v. Republic oj Sri Lanka307
Mr. Seneviratne submitted that when the trial Judge statesthat the transactions are tainted or suspicious what he reallymeans is that the appellant had failed to establish on a balanceof probability that it was more likely that it was not a bribethan not. He stated it was the trial Judge’s way of putting it andthat it was just a question of choice of words and language usedthan a matter of substance. I regret I am unable to agree withthis submission, in view of the categorical statement in thejudgment that in addition to proving the various sources of hiswealth there was an additional burden on the appellant toremove all suspicion and doubt. It is not a question of weighingthe probabilities and arriving at a finding but a requirement thatthe appellant should remove all suspicion and doubt. On thisbasis one could not have come to the finding that this Courtarrived at in regard to the Cave’s loan in the Wanigasekera case.
That the trial Judge by these words did not mean simply thatthe appellant had not rebutted the presumption is clearly shownby that part of the judgment referred to ealler by me in whichhe says that the burden on the appellant is not only to provethat the acquisitions were made with money which he did notaccept in contravention of the Bribery Act but in addition toprove that these transactions are free from taint and that thecharacter of these payments are abovp suspicion. If the appellanthad proved that the money was not money acquired in contra-vention of the Bribery Act then he has successfully rebutted thepresumption. There is no further burden on him to prove thatthe transaction was free from taint or that the character of thepayments were above suspicion.
The fact that the trial Judge has cast a very much higherburden on the appellant than proof on a balance of probabilityis clearly illustrated by his finding in regard to the Kotagamatransaction. He states “There is another transaction amountingto Rs. 20,000 which the accused says he got from Kotagama forthe transfer of a vehicle after the Yelve-rton transaction. Thissource of Rs. 20,000 has not been proved and corroborated, whenthere was evidence available to the accused namely by callingKotagama. I, therefore, reject that evidence given by theaccused This is all he has to say for rejecting this source ofreceipt or income. Now, the trial Judge is well entitled to saythat the appellant is such an uncreditworthy witness that he wasnot prepared to act on his evidence unless supported by otherevidence.
This is not what he has done. What he has said and done isto reject the evidence because it was not corroborated. In out-law of evidence corroboration is a term which has a special
39SVYTHIALINGAil, J.—Fernando v. Republic of Sri Lanka
; significance. In the conventional sense as used in our Courts itmeans other independent evidence which confirms or supportsor strengthens the evidence which is required to be corroborated.
; In the case of certain categories of witnesses statutes or judges,as a. matter of prudence and caution require that their evidenceshould be corroborated before it is accepted and acted upon.In the case of the appellant no requirement of law or prudencerequired his evidence to be corroborated for he does not fall into..any of these categories of witnesses.
. The term, however, may also be used in a more popular senseto denote evidence which renders other evidence more probable.For example it is in this latter sense that the term is used insection 157. of the Evidence Ordinance which makes admissibleany former statement made by a witness relating to the samefact at or about the time when the fact took place or beforeany authority competent to investigate„ the fact, in order to. corroborate him. In the case ol.Aviyadasa v. The Queen, 70 N.L.R.-,3 at 5, T. S. Fernando, J. pointed out “ The corroboration thatsection 157 contemplates is not corroboration in the conven-tional sense in which' the. term is used in Courts cf law butin a sense of consistency in the conduct of a witness tending
to render his testimony more acceptable ”.
As I have pointed out, however, the;trial Judge has not usedthe term in the latter sense. It is true that in the case of theappellant’s evidence in regard to certain specific transactionshe has held that the appellant had told a lie and that in giving a- particular answer he had shown utter callousness and disregardfor honesty and integrity aijd that no Court' could condone thistype of answers from a man who had been given such financialresponsibility and stature. But nowhere in his judgment has hesaid that the appellant was an untrustworthy witness whoseevidence could not be believed unless it was supported by otherreliable evidence. Moreover in regard to the Kotagama cartransaction he has rejected the appellant’s evidence' out of handand without any consideration merely because it was notcorroborated.
This is not the cnly evidence of the appellant which the trial‘ Judge rejected because there., was no corroboration. The appe-llant had stated that he had received a loan from Shelton Perera.The trial Judge rejected this evidence because as he says “ Thereis absolutely no corroboration on this point. So there is no satis-factory proof”. One consequence of the adoption of this
higher standard of proof has been not only that the appellant: was found guilty of bribery but also that a whole heap of peopleand institutions including Bartleet and Co., L. B. Finance, andthe Hatton National Bank have been branded as bribe-givers.
VYTI UALl NC.AM, J.—Fernando v. Republic oj Sri Lanka'100
I hold therefore that on this ground also namely the castingon the appellant a higher standard of proof than proof on abalance of probability, the conviction and sentence should beset aside. These two grounds set out above are both substantialand each by itself is fatal to the conviction and sentence. It istherefore unnecessary for me to refer to the other grounds urgedby Mr. E. R. S. R. Coomaraswamy.
It remains to notice one last submission of Mr. Seneviratne,that despite these defects it was still open to us to sustain theconviction as on a total acceptance of the entirety of Che appel-lant’s evidence he had not bridged the gap between his incomeand the acquisitions. For this purpose he handed over to us acalculation of his of the appellant’s income and the expenditureon the acquisitions. I do not think that it is open to us to ignorethe other evidence in the case and arrive at a verdict of our ownby an arithmetical process of addition and subtraction. Thiswas never the basis on which the trial proceeded in the lowerCourt or to which the trial Judge had directed his mind in hisjudgment. If this matter had been agitated ih the lower "Courtthe appellant could have had an opportunity to furnish explana-tions. In the absence of such an opportunity it would not be fairand equitable for us now to adopt this course.
Although Mr. Seneviratne stated that his statement ofaccounts was made out on the basis of a total acceptance ofthe entirety of the appellant’s evidence, this is not so. It is madeout on the basis of selection and exclusion of certain items andcontains many errors and omissions. In this connection itis interesting to note that while Mr. Seneviratne’s computationshows disparity between acquisitions and receipts, at the lowestof a sum of Rs. 80,182 and at highest of Rs. 141,182, Mr. Coomara-swamy has also given us a calculation of his own covering theentire period according to which there is an excess of Rs.70,603.54 of income over expenditure. This by itselfillustrates the fact that we cannot arrive at a finding bya purely arithmetical process of addition and subtraction butonly by examining the facts and circumstances of each trans-action and this we cannot do without hearing and seeing thewitnesses.
Mr. Seneviratne’s computation is not a full and completeaccounting over the entire period, but only of a selected portionof it. The period set out in the indictment extends upto 31st
'v i'THIALINGAM, J.—Fernando v. BepuVie of Sri Lanka
October, 1971 and the last and the biggest of the acquisitions wasmade on 30.10.71. Yet for some mysterious reason Mr. Senevi-ratne’s computation is only upto 19.8.71. If one is to strike abalance in this way one has to do it over the entire period andnot of a selected portion of it as Mr. Seneviratne has done.
The computation also contains glaring errors. Admittedly theappellant obtained a loan of Rs. 45,000 on a post-dated chequefrom Thaha out of which he repaid Rs. 23,000 on 14.8.1971 fromthe proceeds of the sale of car 5 Sri : 9728. In item 8 of Mr.Seneviratne’s computation he has given credit in respect of thisloan of Rs. 45,000 for only Rs. 22,000 after deducting the Rs.23.000 that was repaid on 14.8.71. Then in item 10 in respect ofvttie sale of the car he has again deducted this sum of Rs. 23,000■and given credit only for Rs. 4,500. In other words this sum ofRs. 23,000 has been deducted twice over instead of once only.There was also another loan of Rs. 15,000 given by Thaha on
to the appellant which has not been included in thecomputation. This loan was repaid to Thaha on 6.2.71. How theappellant obtained the money to repay this loan has to be con-sidered on an assessment of the evidence. But the fact remains• that the money was available to him as a legitimate source ofincome at the time of the purchase of Mount Hunasgiriya Estate.
Then there are omissions of several items which should havebeen included if one proceeds on the basis of a total acceptanceof the appellant’s evidence. The appellant stated that he hadsaved two to three thousand rupees at the time he became adirector at the Insurance Corporation but he has not been givencredit in this sum. Then again apart from the loan of Rs. 5,000shown in the computation the appellant stated that he had over-■ draft facilities at the Hatton National Bank upto a limit ofRs. 25,000 which was often exceeded. This was confirmed by Mr.Dharmarajah the General Manager of the Bank who statedthat the appellant’s personal account F007 was overdrawn in' August 1971 to the extent of Rs. 42,187.53. Mr. Seneviratne has' not given credit for this overdraft in any sum. Besidesthis there was also overdraft facilities, in the estate accountwhich was also in the appellant’s personal name up to a limitof Rs. 25,000. This has also not been reflected in the computation.
Two other items, a loan of Rs. 1,500 from Shelton Perera and
a payment of Rs. 2,000 from Marshall Exports and Imports have
VYTHIALINGAM, J.—Fernando v. Republic of Sri Lanka
also not been included. Moreover he has included on the debitside withdrawals from the appellant’s bank account amountingto Rs. 59,071- The appellant stated that all of this amount wasnot used by him for his expenses but both he and his wife hadsaved some money out of this sum. A total acceptance of theappellant’s evidence must necessarily result in giving him creditfor some at least of this amount.
If account is taken of all these items and others which a closerscrutiny of the accounts may reveal there may be no disparityat all. However I am of the view that in a case of this natureone cannot completely divorce oneself from the evidence in thecase and proceed on the basis of a pure arithmetical addition andsubstraction, unless of course parties are agreed on the items ofincome and expenditure.
I have given anxious consideration as to whether I shouldacquit and discharge the accused altogether or order a freshtrial. I am conscious of the fact that during a short period often months he had acquired properties worth Rsr 942,079.97 cts.Corruption in public life is a grave and social evil which isdifficult to detect ; for those wfao take part in it will be at painsto cover their tracks. The section is designed to catchup persons who have acquired money and properties in excessof. their known income and receipts and against whom thereis no proof of the actual receipt of a gratification except presump-tive evidence of bribery. For these reasons I was at one timeinclined to the view that there should be a retrial. I have sincehad the advantage of reading the judgment of my brotherP.Talcom Perera, J. and agree with him that, since nearly sevenyears have elapsed since the date when the acquisitions weremade and that the appellant had to undergo the agony of along and protracted trial and that it may now be difficult forhim to remember the sources of his income, the accused shouldbe acquitted and discharged. I
I accordingly allow the appeal and quash all proceedings hadon and after 4.9.1974 and set aside the conviction, sentences andpenalties imposed on the accused and acquit and discharge him.
Application in Revision by the Hatton National Bank
In this case there is also an application by way of revision bythe Hatton National Bank, to expunge and delete certain remarks
VYTHIA1.INGAM, S.—Fernando v. Republic of Sri Lanka
made by the District Judge in his judgment which it allegesadversely affect its business integrity, reputation and standing.Before considering the merits of the application the followingimportant questions of law arise for consideration : —
Is it open to a person who is not a party to the case to
move this Court in revisipn ?
Has this Court the power to expunge or delete any part
of the record or the judgment ?
If so, in what circumstances will such power be
Is this such a case in which the power, if it exists, should
be exercised and if so, what is the appropriate order‘ .that should be made ?.
<:In regard to the first: question this Court’s power, to act byway of revision are ■ of the widest amplitude. It can of its ownmotion call for and examine the record of any case whetheralready tried or pending trial in any court for the purpose of•satisfying itself as to the legality of propriety of any judgmentor order passed therein or as to the regularity of the proceedingsof such court It has often acted under these powers’as a resultof newspaper reports of proceedings in'a Court. It can thereforeexercise its powers in revision when a-matter is brought to itsnotice by a person who, though not a party to the case, ’ isadversely affected by any order or proceedings in the case.
In the case of Appuhamy v. Weeratunga, 23 N.L.R. 467, whichwas a partition case this Court exercised its powers in revisionat ttie instance of a person who. was not a party to the case butwas adversely affected by a decree for sale in the case. Bertram,
J. with De Sampayo, J agreeing said “We have to consider,in the first place, whether it is open to us to exercise those powerson the application of an aggrieved person not a party to therecord. There seems to bo no doubt that we may exercise thesepowers of our own motion. If that is so, I think we may justlyexercise them when an aggrieved person brings to our noticethe fact that, unless the decree is amended he will sufferinjustice
VYTITI AI.IXGAM, S—Fernando v. Republic of Sri Lankalull
It would be a travesty of justice if an injured stranger to aproceeding should have to suffer unheard the damage to hisintegrity, reputation and business standing if such be the case,as a result of unjustifiable and harmful observations made bya court against him. I hold therefore that it is open to a personwho is not a party to the proceedings to move this Court byway of revision in a matter of this nature.
The next question is whether we have the power to expungeor order the deletion of portions of the record in a case. Mr. V.S. A. Pullenayagam who appeared for the petitioner submittedthat we had the power to do so under sections 354, 11 and 13 ofthe Administration of Justice Law, No. 44 of 1973. He referredparticularly to section 11 which enables this Court in the exer-cise of its powers to give directions to any subordinate court.While this is so, I think the appropriate section under which wehave the power to give such orders or directions in section 40of the Law. It is as follows : —
“The jurisdiction vested in any Court by thjs Law shallinclude all ministerial powers and duties incidental to such: jurisdiction, and rmthing in this Law shall be.deemed tolimit or affect the power of any court to make such ordersas may be necessary to do justice or to prevent the abuseof the process of the court ”.
The words “ any Courtin this section would include theSupreme Court. The section is in two parts. The first deals withministerial powers and duties incidental to a Court’s jurisdict-ion. The second part preserves the inherent powers of Court tomake such orders as may be necessary to do justice or to preventthe abuse of the process of the Court- Mr. Pullenayagam sub-mitted that “ such orders ” in this part of the section related toorders relating to ministerial powers and duties. I regret I amunable to agree. The words “ such orders ” in this part of thesection relate to such orders as are necessary for the purposeof doing justice and preventing the abuse of the process ofcourt. The use of words “ nothing in the Law shall be deemedto affect…. ” separates this part of the section from the first.It preserved the already existing inherent powers in a Courtto do justice and to prevent the abuse of the process of Court.
VYTHI ALIN GAM, J.—Fernando v. Republic of Sri Ijanka
In.India section 561a of the Criminal Procedure Code hassimilar . provision in relation to the High Courts and is asfollows : —
“ Nothing in this Code shall be deemed to limit or affectthe powers of the High Court to make such orders as may. ; be necessary to give effect to any order under this Codeor to prevent the abuse of the process of any Court or other-wise to secure the ends of justice
' It has been held by the Privy Council in the case of J air am Dasv. Emperor, A.I.R. (1945) P. C. 94, that this section did not conferon the High Court any new powers but merely safeguarded allexisting inherent powers of the High Court necessary, amongothers to secure the ends of justice.
. ;Itis under this section that: the Indian High-Court as well asthe; Supreme Court have dealt with applications for expungingobservations from the record of a case. Indeed whenthis sectionwas introduced into the Code in 1923 the Joint Committee Report(Sohoni—Commentary on the Indian Criminal Procedure Code,Vol." IV 3616) which recommended -its introduction stated : “ Weunderstand that a High Court has recently held that it had nopower to direct the expunging of "objectionable matter from therecord; We think it desirable that- it should be made clear thatthis clause is intended to meet sucfr>a-cases&'….. •
Quite recently in the case of Guhawardena et al v. Inspectorop Police,. Rag alia,. S.C. 758/70, M.C. Nuwara Eliya 36867—S.C.Minutes 26.1.76. this Court held that it has. the, power to expungeobjectionable matter from a judgment even on the applicationof persons who were not only not parties to the case but werenot even, witnesses in the case but about whose conduct adverse,remarks had been made by the judge. I hold therefore that actingin revision this Court has the power to direct that objectionablematter be expunged from the record if it is necessary to do soin'the interests of justice <®r to prevent the abuse of the processof Court.
But this is a power which will be exercised only in exceptionalcircumstances and where the justice of the case clearly requiresit to be done. It is a principle of cardinal importance in theadministration of justice that the independence of the judiciary
VYTKIALINGAM, J.—Fernando v. Republic of Sri Lanka
must be maintained and officers administering justice howeverhumbie their position may be in the hierarchy of the judiciaryshould have the proper freedom and independence to performtheir functions freely and fearlessly without undue interferenceby anybody and even by this Court- Sirimanne, J. pointed
out in Goonewardena’s case (supra) that “A Magistrate
must ’nave the unfettered right of commenting freely and fear-lessly (but fairly) on the evidence and relevant issues beforehim
At the same time it is equally necessary that in expressing theiropinions judges and Magistrates must be guided by considerations
i * ’ ^
■<[ justice, fairplay and restraint. This was best expressed bySansoni, J. in the case Narthupana Tea and Rubber Estates Ltd.v. Perera, 66 N.L.R., at 168, where he said “ I regret that it shouldbe necessary to remind the learned judge that the parties wereentitled to a judgment written without exaggeration or passion.Chief Justice Stone of the Supreme Court of America once said; precisely because judicial power is unfettered, judicial responsi-bility should be discharged with finer conscience and humilitythan that of any other agency of Government The ampler thepower, the greater the care with which it should be exercisedand the very circumstance that absolute privilege attaches tojudicial pronouncements imposes a correspondingly high obli-gation on a judge to be guarded in his comments and to refrainfrom needless, invective Judicial pronouncements must bejudicial in nature and should not normally depart from sobriety,moderation and reserve.
This Court would more readily expunge objectionable matterfrom the record where the observations are general and sweep-ing in t’neir nature, unjustified by the evidence in the record andunnecessary for the decision of the case and are damaging to thecharacter and reputation cf the aggrieved person. Thus in theState o/ Uttar Pradesh v. Mohamed Naim, A.I.R. (1964) S.C. 703,r.he case related to the conduct of one Police Officer but theJudge made general and sweeping observations of a derogatorynature about the entire police force. The State applied for theoxminging of these observations and the Supreme Court directedthat certain of the offending observations should be expunged.S. K. Das, J. observed at page 707 that “ We oonsider that theremarks made by the learned Judge in respect of the entire
VYTHIAL1NGAM, J.—Fernando v. Republic of Sri Lanka
Police force of the. State were not justified by the facts of tftieease nor were they necessary for the disposal of the case beforehim”.
Where, however, the observations are made in respect of -amatter in regard to which the Court had to arrive at a findingfor the decision of the case then different considerations wouldapply. For, in such a case, the observations would be so inex-tricably woven into the fabric of the judgment that any expung-ing or deletions of the portion of the judgment would result inthe judgment itself falling away unless of course they areseverable from the. operative part of the judgment. Where theyare ..not so.severable if the observations are vituperative orcontain unnecessary invective so as to damage the character and-reputation of the aggrieved party and is unjustified by the:evidence in the case then this court would be justified in expres-sing its disapproval pf such observations or dissociate, itself from,such remarks..
Thus in Goonewardena/s case (supra) Sirimanne, J. said'" As.f ‘stated earlier the learned Magistrate’s comments were not oncompletely irrelevant matters as those matters had some bearingon the issues before him and although they were not strictly.Justified in the circumstances of this case yet I do not thinkthat they are so irrelevant or 'of such a serious or intemperate;nature as to require this court to interfere in the manner applied;for’’. But 'he did find that it was not strictly necessary for theMagistrate to come to a finding on those matters or make adverseComments against persons who were neither parties nor heard.So he said •“ Though we are not disposed to allow this applicationfor-the reasbns already Stated, it should be sufficient satisfactionfor the petitioners to know that we: do not associate ourselveswith' the‘adverse comments made by the learned Magistrateagainst the petitioners and that those comments which have beenmade in the circumstances referred to above in the context ofthat particular case, should not in any way affect or be usedagainst the character and credibility of the petitioners1 ** ' • – ■ '
j A similar, course was adopted by the Privy Council in the casepf Queen v. Murugan Ramasamy, 66 N.L.R. 265 at 284. In that.case ,in -the Court of Criminal Appeal, Basnayake, C. J. had
YYTJI L i.l N'GA.U, J.—Fernando v. Republic of Sri Lanka
observed, C4 N.L.R. 433 at 447 and 448, that “ Sergeant Jayawar-dena’s evidence when compared with what is recorded in hisnote book discloses a reprehensible attempt on his part atsuggestio falsi el suppressio veri ” and that “ it is difficult toescape the conclusion that the prosecution has not been conduct-ed in the instant case with that fairness and detachment withwhich prosecutions by the Crown should be conducted In regardto the remarks about Sergeant Jayawardena the Privy Councilstated that there was no need for such a hostile conclusion andin regard to the conduct of the case by the prosecution it said.“The learned Chief Justice in the last two paragraphs of hisjudgment attributed to the prosecution a lack of proper fairnessand detachment in the prosecution of the case and even a con-scious attempt to mislead Court. The censure which is of thegravest order wus.not supported in any particular by Counselfor l*ie respondent before the Board. Their Lordships have foundno justification lor itTheir Lordships must dissociate them-
selves from any endorsement of the learned-JChief Justice’scensure.. , ,
The objections to which exception have been taken by the
Bank are as follows : —
“No doubt certain Banks and money lending institutionshave advanced brazenly large sums of. money to the accusedwithout any principle attached to tVie payments ”.
“ One has to consider whether the payments made by theseinstitutions were bona fide or paid with an ulterior motive,with an idea of getting further help from the accused whowas holding sucVi an influential position in the InsuranceCorporation. 1 am firmly of opinion that the payments made
by the Hatton National Bank to the accused were so
tainted that one could hardly see even the basis for thesepayments
“After examining all the deposits and withdrawals from
his account there is no doubt whatever thatRs. 100.000
from the Hatton National Bankwere all tainted trans-
actions and which I consider proceeds obtained frombribery ”.
During the relevant period the appellant’s Banker was theHatton National Bank, the petitioner which had afforded him
VYTHIALINGAM, J.—Fernando v. Republic of Sri Lanka
various facilities by way of overdrafts and loans including thesum of Rs. 100,000 for the purchase of Yelverton Estate, one ofthe impugned properties. The appellant had shown this sum asa source of his receipts for the acquisition. It was thereforenecessary for the judge to decide whether this sum was theproceeds of bribery for the purpose of deciding whether to ex-clude it in terms of section 23a (2). The observations were there-fore made on an issue which was necessary for the decision ofthe case.
However in view of the order I have made in regard to themain appeal it is unnecessary for us to decide whether in makingthese observations, the trial Judge had gone beyond what was:strictly necessary for the decision, of the issue or as to whetherhe was justified by the evidence in making these remarks. Theresult of my order quashing all proceedings had on and after4.9.1974 is to wipe out these remarks as well. It is as if theyhad never been made at all. In the case of S. P. Dubey v. Nara~singhe Bahadur, A.I.R. (1961), Allahabad, 447 at 450, the ordersof the Magistrate were set aside in a revision application. Therewas also an application to expunge certain remarks made by theMagistrate! Broome, J. observed “ Since the entire judgment hasbeen quashed there is no necessity for a separate order expun-ging the adverse remarks I accordingly make no separateorder in regard to this application.
Appeal allowed and accused acquitted.
L. C. FERNANDO, Accused – Appellant and THE REPUBLIC OF SRI LANKA