Sanitary Inspector, jMirigama v. Nadar
1953Present: Nagalingam A.C.J.SANITARY INSPECTOR, MIRIGAMA, Appellant, andTHANGAMANI NADAR, RespondentS. C. 1,274—M. C. Gampaha, 5,596
Evidence Ordinance—Section 106—“ Especially within the knowledge of any person ”—Quarantine and Prevention of Diseases Ordinance—Contravention of Regulation46—Burden of proof.
By section 106 of the Evidence Ordinance,
“ When any fact is especially within the knowledge of any person, thehurden of proving that fact is upon him. ”
igAraAT.TWftAM A.C.J.—Sanitary Inspector, JUirigama v. Nadar
Held, that when the section refers to a fact as especially within the knowledgeof a party, the term “ especially ” means “ almost exclusively ”, if not“ altogether exclusively ”, within the knowledge of a party.
The nhn.-gn that was preferred against the accused was under the Quarantine •and Prevention of Diseases Ordinance alleging that he did “ being permanentlyor temporarily resident in a building in which was a person affected with acontagious disease, to wit, small pox, fail to inform the proper authority forth-with in contravention of Regulation 46 of the Regulations made under theOrdinance
Held, that section 106 of the Evidence Ordinance did not cast on the accusedthe burden of proving that he had given information to the proper authorityuntil some prima fade evidence at least had been first led hy the prosecution-of the failure on bis part to give the information.'
The presumption of innocence casts on the prosecution the burden of provingevery ingredient of an offence even though negative averments be involved,therein.
.^^.PPEAL against an order of acquittal from the Magistrate’s Court,Gampaha.
H. N. G. Fernando, Acting Solicitor-General, with A. MahendrarajahCrown Counsel, for the Crown.
8. Nadesan, with T. K. Curtis, for the accused respondent.
Cur. adv. vuU..
September 28, 1953. Nagaungim A.C.J.—
This is an appeal by the complainant with the sanction of the Attorney-General against an order acquitting the respondent of a charge that waspreferred against him under the Quarantine and Prevention of DiseasesOrdinance in that he did “ being permanently or temporarily resident in abuilding in which was a person affected with a contagious disease, to wit,small pox, fail to inform the proper authority thereof forthwith in contra-vention of Regulation 46 of the Regulations made under the Ordinance ”.
The reason for the acquittal of the accused was that there was no evi-dence placed before the Magistrate to show that he had failed to informthe proper authority of the presence of the person so afflicted with thedisease. The learned Magistrate felt himself bound, as in fact he was, tofollow a decision of this Court on almost an identical question. That was aprosecution under Regulation 45 of the same Regulations, whereunder amedical practitioner was charged with having failed to give informationin writing to the proper authority stating the name of the diseased person,.his residence and the nature of his disease; he was convicted but on appealKeuneman J. set aside the conviction and acquitted the accused, holding’that –
“ Material evidence which should have been led was not in fact led,,namely that the accused failed to give information to the 'proper authority.
NAGAX.IHGAM A.C.J.—Sanitary Inspector, Mirigama v. Nadar
Apparently the prosecution completely overlooked the necessity of this
evidence until after the case was over. In the circumstances I set aside
the conviction and sentence. ” 1
These observations are equally apposite to the facts of the present case.
The learned Acting Solicitor-General who appeared in support of theappeal, however, contended that that decision needed review, and contend-ed firstly that it would be very inconvenient for the prosecutor te- establisha failure on the part of an accused person to give the necessary informationto the proper authority, which consists of a fairly large class of persons,and though for the purpose of construing a statute that may not be avery cogent argument, he, however, submitted secondly that whethernotice was given or not was a fact especially within the knowledge of theaccused and that under section 106 of the Evidence Ordinance the burdenlay on him of establishing such fact.
Without burdening one’s mind with regard to what the English caseshave decided on similar or analogous matters, I think the proper approachto a determination of the question is to ascertain what are the facts whichthe prosecutor must establish under our law to secure a conviction. Ifone analyses the charge, it is apparent that the prosecutor must establishthe following three ingredients :
(а)that the accused was permanently or temporarily resident in a
(б)that in that building there was a person affected with a contagious
disease of the kind set out therein ; and
that he failed to inform the proper authority of the presence thereinof the person suffering from such disease.
It was not gainsaid by the learned Acting Solicitor-General that underour law, as under the English Law, “ the presumption of innocence castson the prosecution the burden of proving every ingredient of the offence ”.This principle has undoubtedly well recognised exceptions. One isthat the Legislature itself may impose the burden of proving a fact on anaccused person. Another is that in view of certain presumptions arising•under the law of Evidence an accused would be under a necessity to rebutthe presumption to avoid the consequences.<
It is conceded that neither under the relevant Regulations nor underthe Ordinance is the burden of proving any fact in relation to the chargeexpressly laid by the Legislature on the accused person ; and also thatnone of the presumptions created by sections 107 to 114 of the EvidenceOrdinance applies to this case.
To turn to the charge, the proof of ingredients (a) and (6) has been givento the satisfaction of the Court. In regard to ingredient (c) there was noevidence ; but the contention of theleamed Acting Solicitor-General isthat by virtue of section 106 of the Evidence Ordinance the burden ofproving that ingredient is on the accused, who must prove the fact of his
1 S. G. No. 449, M. C. Jaffna 21,445, S. C. Mins. 4.7.44.
XAGAX.EXGAM A.C.J.—Sanitary Inspector, Mirigama v. Nadar
having given, information to the proper authority if he wishes to escapethe penal consequences that would otherwise flow.
I cannot see my way to agree with this contention. When the sectionrefers to a fact as being especially within the knowledge of a party, theterm “ especially ” there means “ almost exclusively ” if not “ altogetherexclusively ” within the knowledge of a party, and not that the fact is onewithin the knowledge of the one party as well as of the other. EnglishJudges uf-e the term “ peculiarly within the knowledge of a party ” forthe phraseology adopted by the framers of the Evidence Ordinance insection 106 thereof.
One of the earliest cases where an elucidation of the term “ peculiarlywithin the knowledge ” of a party is to be found is the case of K. v.Turner 1. The prosecution was for possession of game by the accused,“ he being a person not having lands, &c., nor being a person in any mannerqualified or authorised by the laws of the realm to kill game, nor being aperson entrusted with such game by any person or persons qualified toTrill game ”. No evidence for the prosecution was given of the fact that theaccused was a person who had no lands or had not been qualified or au-thorised by the laws of the realm to kill game, or that he had not beenentrusted with game by a person qualified to kill game. The accused wasconvicted and in upholding the conviction all the Judges agreed that eachone of the qualifying matters was peculiarly within the knowledge of the-accused person. The following extract from the judgment of Holeroyd J.clearly furnishes the reason for the view that was taken, that those were-matters peculiarly within the knowledge of the accused person, andthrows light on the meaning to be attached to that phrase :
“ Now all the qualifications mentioned in the Statute are peculiarlywithin the knowledge of the party qualified. If he be entitled to anysuch estate as the Statute requires, he may prove it by his title deedsor by receipt of rents and profits or if he is son and heir or servant of anylord or lady of a manor appointed to kill game, it will be a defence. Allthese qualifications are peculiarly within the knowledge of the partyhimself, wherzas the prosecutor has probably no means whatever of provingthe qualification. ”
To appreciate fully this passage, it must be borne in mind that titledeeds in England, unlike in Ceylon, are private documents in the custodyof parties themselves; nobody else is able to have access to them, nor arethere public offices where such deeds are registered excepting in certainvery limited areas to which it is unnecessary to make any reference for thepurposes of the present discussion. That is an important factor whichshould be borne in mind. So that, the holder of a title deed alone canestablish his title to the land, and it will be correct .to say that that is. afact which is peculiarly in the sense of exclusively within the knowledge ofthe accused person, and is not one of which the prosecutor could have anyknowledge. Similar observations would apply to the other qualifications-referred to by the learned Judge, namely whether the accusfed is the sortand heir or servant of a person lawfully entitled to kill game.
(.1816) 5 M. & S. 206.
1STAGrAXiINGAM A.C.J.—Sanitary Inspector, Mirigama v. Nadar
Section 106 to my mind embodies the same principle and has been■construed in the same sense in India :—„
“ It is particularly clear that section 106 contemplates facts which intheir nature are such as to be within the knowledge of the accused and ofnobody else, for instance his own intention in doing an act (^lustration C)or the fact that he purchased a ticket though he was subsequentlyfound to be without one (illustration B). It has no application tocases where the fact in question having regard to its na'iure is suchas to be capable of being known not only by the accused but also byothers if they happen to be present when it took place. It cannot in myopinion be invoked to make up for the inability of the prosecution toproduce evidence of circumstances pointing to the guilt of the accused.”—-per Niamat Ullah J. in Ram Bharosi v. Emperor h
Can it be said that whether the accused person gave information to theproper authority or not is not as much a fact within the knowledge of theproper authority as the accused himself? That the burden of proving afact especially within the knowledge of a person is thrown upon him bysection 106 of the Evidence Ordinance does not mean that in a criminalcase the principle that the burden of proving every‘essential ingredient-necessary to constitute the offence lies at every stage of the case on theprosecution is in any way modified or whittled down or that the goldenthread of the presumption of innocence of the accused thereby gets•snapped and that the prosecutor could say that merely because a parti-cular fact is within the knowledge of the accused person he need not leadany evidence of such fact though it may constitute an essential element,of the offence.
I should like at this point to draw attention to the second illustrationgiven under section 106 ; a person is charged with having travelled with-out a ticket; would it be sufficient to give evidence only of the fact thatthe accused was found travelling in a train without leading any evidenceat all as to whether the accused had a ticket or not ? And if there wasno evidence about the non-possession of a ticket can there be the slightestdoubt but that the prosecution cannot be said to have proved its case ?If on the contrary the prosecution did lead some evidence of that fact by•establishing that the accused when called upon to produce the ticket didnot do so, would there be any doubt but that the prosecution had placed aprima facie case against the accused? In those circumstances the accused-cannot be heard to contend that there was no proof that he had not in factbought a ticket or that having bought one he Jiad misplaced or lost it.Where such a contention is put forward by the accused, the burden wouldindisputably be upon him to prove the fact of his having purchased theticket and also of his having misplaced or lost it, if such be the case.
Though the learned Acting Solicitor-General cited the case of Hugginsv. Ward 2 which may be said to lay down the law in a contrary sense,he did not, feel himself justified in contending that without some slightproof at least being led before Court of the fact that the accused had no
(1937) 38 C. L. J. 205.
(1873) L. R. Q. B. 521.
HAGAUZN"GAM A.C.J.—Sanitary Inspector, Mirigama v. Nadar
ticket, the prosecution could be said to have established its case, andultimately veered to the view expressed in Phipson on Evidence. 1
“ These cases (under the old game laws), however, have been consi-dered to rest partly upon the construction of the Acts, and in the ab-sence of statutory provision the better opinion now seems to be that ingeneral some prima facie evidence must be given by the complainantin order to cast the burden on his adversary. ”
In fact, Phipson’s comment loc. cit. otl Huggins v. Ward (supra) is, “this–case would probably not now be followed ”.
I shall now pass on to a consideration of the other authorities cited onbehalf of the appellant. In the case of Rex v. Cohen 2 undoubtedly it washeld that once it is proved that a person was in the possession of dutiablegoods in such circumstances as would entitle a Court to find that he was■ consciously in possession of them the onus was on the accused person toprove that duty had in fact been paid, although there was no evidenceplaced by the prosecution before the Court to prove either that no dutyhad been paid or that there were circumstances from which the Courtcould draw the inference that no duty had been paid. But that viewwas based upon the express provision of the Statute, which provided :—
“ If in any prosecution in respect of any goods seized for non-paymentof duties or for the …. recovering of any penalty or penaltiesunder the Customs Act, any dispute shall arise whether the duties ofcustoms have been paid in respect of such goods …. then, inevery such case the proof thereof shall be on the defendant in suchprosecution. ” (Section 259, Customs Consolidation Act, 1876.)
'This case, therefore, falls within the well known principle enunciated byTaylor in his Law of Evidence 3 :
“ Necessity of giving …. prima facie evidence on the part ofthe prosecution having been found in the great majority of cri-minal cases not only useless but highly inconvenient, the Legislaturehas in many instances interfered sometimes by describing the offence andomitting all mention of the negative matter, but generally by expresslyenacting that the burden of proving authority, consent, lawfulexcuse and the like should lie on the defendant. In such cases, the de-fendant by the express language of the Statutes relating to them isbound to protect himself by showing the existence of some lawfulauthority or excuse. ”
Within the same ^principle falls also the case of Buckman v. Button 4.The charge here was that the accused person was carrying on business (ofa kind referred to in the Orders under which information was laid) withouthaving applied to be registered as required by the Orders. The relevant■provision of the Orders, sub-section 5 of section 1 of the Limitation of 1 2
19th ed. at p. 41.s 12th ed. sec. 372.
2(1951) L. R. K. B. 505.* 59 T. L. R. 261.
NAGAX.TNGAM A.C.J.—Sanitary Inspector, Mirigama v. Nadar
Supplies (Miscellaneous) (No. 5) Order under which, the prosecution waslaunched provided that—
“ No person who is required by this article to be“registered shallcarry on any business referred to in this Article after the prescribeddate unless he had made that application. ”*
The language of this Article places the burden of proving the excuse orqualification, namely that the offender has made the necessary application,on the offender himself by virtue of section 39 of the Summary Jurisdic-tion Act, 1879, sub-section 2 of which states :—
“Any exception, exemption, proviso, excuse or qualification, whetherit does or does not accompany in the same section the description of'the offence in the Act …. creating the offence may be provedby the defence but need not be specified or negatived in the informa-tion or complaint, and if so specified or negatived, no proof in relation tothe matter so specified or negatived shall be required on the part of theinformant or complainant. ”
It was held that the burden of proving that the accused had not committedthe offence by showing that he had applied to be registered was on himand not on the prosecution.
The third case is that of Rex v. Oliver 1 which was a prosecution for sup-plying sugar as a wholesaler otherwise than undeT the terms of a hcenee.In this case too the burden of proving that the accused had a licence orpermit was fairly and squarely laid on him by the Statute itself, whichruns as follows :—
“ Subject to any directions given or except under and in accordancewith the terms of a licence, permit or other authority granted by or onbehalf of the Ministry no wholesaler shall by way of trade ….supply …. any sugar.”
Had, for instance, the Regulation in the present instance run as follows :
“ No person shall permanently or temporarily reside in any building inwhich there shall be any person affected with any contagious diseaseunless he shall forthwith inform the proper authority thereof ”
there can be no question but that the prosecution need only prove (a) thatthe accused person had resided in a building, (ft) that in that building therewas a person affected with the contagious disease, and then it would beupon the accused person to establish that he had informed the properauthority, for the offence would consist in occupying a building in which aperson affected with a disease was present and not consist in a failure to do-an act such as to give information of the presence of a diseased person.In those circumstances on his failure to do so he could properly be foundguilty of the offence as under section 105 of the Evidence Ordinance the-burden of proving the exception would lie on him.
1 (1944) 1 K. B. 68.
Suriya v. Board oj Trustees of Maradona Mosque
Mr. Nadesan on the other hand relied upon the case of Over v. Harwood 1where it was expressly stated that the presumption of innocence casts onthe prosecutor the burden of proving every ingredient of the offence eventhough negative averments be involved therein. 3Tor an application ofthe principle enunciated in this case, see Nair v. Saundias Appu 2, aDivisional Bench case.-
In the present case, as stated earlier, the ingredient (c), though a nega-tive averment, is an essential element of the offence and must be esta-blished by the prosecution. There is not an iota of evidence to supportingredient (c) of the charge as set out earlier. It will be idle to contendthat any burden rests on the accused to prove that he gave informationtill some prima facie evidence at least has been given of the failure on hispart to do so. In the absence of such evidence there is no case for himto answer. The presumption of innocence continues in his favour and hasnot been displaced by the prosecution. The judgment of Keuneman J., ifI may say so with respect, embodies the correct view in regard to the ques-tion, and I therefore see no reason to make an order for reviewing thatjudgment.
In the result the order of acquittal must be affirmed and the appealdismissed, which I do hereby.
SANITARY INSPECTOR, MIRIGAMA, Appellant, and THANGAMANI NADAR, Respondent