Setjadn c. The King
[Court of Criminal Appeal]
1981 Present: Nagalingam S.P.J. (President), Gratiaen J. and Pnlle J.SEYADU, Appellant, and THE KING, RespondentApplication 108 of 1951S. C. 10—M. C. Mannar, 12,657
Confession—Meaning of term—Admissibility in cross-examination and in evidencein rebuttal—Severability of the non-confessional portion of a confession—Evidence Ordinance, ss. 17 (2) 25, 145—Court of Criminal Appeal Ordinance,,proviso to s. 5 (I).
Under section 25 of the Evidence Ordinance, a confession made to a police-officer is inadmissible as proof against the person making it whether as substan-tive evidence or in order to show that he has contradicted himself. Thecircumstance that no objection was taken to the reception of such evidence atthe time is immaterial.
An " admission ’’ amounts to a “ confession " within the meaning of section17 (2) of the Evidence Ordinance if it purports to admit facts which are capableof being construed as establishing a prima facie case against the accused.
If an accused person, in describing a transaction to a police officer, makescertain statements which, though non-confessional, are inextricably interwovenwith other statements which are confessional, it would be improper to circum-vent the prohibition contained in section 25 of the Evidence Ordinance byisolating the former statements from their context.
In a case where a confession has been improperly admitted, the proviso tosection 5 (1) of the Court of Criminal Appeal Ordinance should not be applied.
A PPLICATION for leave to appeal against a conviction in a trialbefore the Supreme Court.
The accused, who was charged with murder, gave evidence that theknife with which he stabbed the deceased was that of the latter and thathe wrested it from the deceased’s hand and used it in self-defence in thecourse of a struggle. It was elicited in cross-examination and in theevidence in rebuttal, without objection from the defence, that the accusedmade a statement to the Police in which he had stated that the knifewhich was used was not that of the deceased but his own. It was sub-mitted in the Court of Criminal Appeal that the alleged statement wasa “ confession ” and should not have been received in evidence againstlihe accused even- for the limited purpose of contradicting his evidence-at the trial.
Maheaa Ratnam, for the accused appellant.
H. A. Wijemanne, Crown Counsel, for the Crown.
Cur. adv. vult.
2~r±(jl(.VTIAEN J.-—Scyadu c. The King
.'November 30, 1951. Gratiabn J.—
This is an appeal against a conviction for murder.
It is not in dispute that oA 6th July, 1951, the appellant stabbed the•deceased person, a man named Sandanam, causing him grievous injuriesone of which was necessarily fatal. There was, however, considerabledivergence between the version relied on by the Crown and that spokento by the appellant as to the circumstances which led up to theincident…
According to the witness Thambipillai, Sandanam was accompanyinghim along the public highway on the morning of 6th July when the appel-lant, who had approached them from the opposite direction, drew aknife from his waist and stabbed Sandanam; Sandanam fell down, butthe appellant continued to stab him several times while his victim layinjured on the ground. Thambipillai claimed to have no knowledge ofthe motive for this seemingly unprovoked assault.
The appellant gave evidence on his own behalf. He said that, about■nine days before this incident, he had surprised his wife, whom he hadnot previously suspected of infidelity, in an adulterous association withSandanam; he assaulted Sandanam and sent his wife away to her parentsin Batticaloa. On the morning of 6th July he met Sandanam and thewitness Thambipillai on the road, whereupon Sandanam whipped out.a knife and atempted to attack him with it. A struggle ensued in thecourse of which the appellant succeeded in wresting the knife fromSandanam’s hand; Sandanam held the appellant by his testicles and the■appellant then, acting in self-defence, stabbed his would-be assailant.Upon this version of the incident the pleas of self-defence, sudden fight-and provocation prominently arose for the consideration of thejury.
In the course of the cross-examination of the appellant, learned'Counsel who appeared for the Crown at the trial sought to discredit the^appellant’s story that the knife belonged to Sandanam and was not,ns Thambipillai had stated, a weapon which the appellant had himselfbrought to the scene. For this purpose Counsel put the following• questions without objection from the defence:—
Q.Did you tell the Police about the knife being the deceased’s knife ?
A. Yes, I told the Police that the knife was the deceased’s.
Q. If the Police had recorded that you told them this, “ I stabbedwith the knife which I had in my waist ” ?
A. I* did not make this statement to the Police.
.After the case for the defence had been closed, the prosecution—againwithout objection from Counsel who represented the appellant at the trial—■nailed a Police Officer to give evidence in rebuttal. Constable Jayasena,who had recorded the appellant’s statement in the course of the preli-minary police investigation held , under Chapter 12 of the Criminal
(KHATIAEN J.—Seyadu t. The King
Procedure Code, testified that the appellant had said to him “ I tookthe knife which I had in my waist and stabbed him (i.e., Sandanam)with it
The only substantial gL-ound upon which the conviction of the appellanthas been attacked is that this statement which was alleged to have beenmade to constable Jayasena was a “ confession ” to a Police Officer which•by reason of the unequivocal prohibition contained in section 25 of theEvidence Ordinance, should not have been received in evidence againsthim even for the limited purpose (sanctioned by section 145) of■contradicting the appellant’s evidence at the trial.
We have come to the conclusion that this objection is sound. Indeed,we do not doubt that if, upon objection taken by the defence, the■authorities on the point had been brought to the notice of the learnedPresiding Judge, he would not have permitted the questions in cross-examination referred to by me to be put to the appellant or the evidencein rebuttal to be led against him.
In The King v. Kiriwasthu 1 a Divisional Bench of the Supreme Court,■dealing with a precisely similar objection, upheld the submission that,in the present state of the law of this country, the prohibition containedin Section 25 of the Evidence Ordinance is absolute. The unanimousopinion of the Court was that “ a confession made to a Police Officer isinadmissible as proof against the person making it whether as substantiveevidence or in order to show that he has contradicted himself ”.
The yord “ confession ” has received a statutory definition in Section17 (2 of our Evidence Ordinance, and in that respect the provisions ofthe local enactment differ from those of the Evidence Act, 1872, of India.Vide the observations of Lord Atkin in Narayana Sami v. Emperor 2.The prohibition contained in Section 25 extends therefore to an admissionmade at any time to a .Police Officer by a person accused of an offence
suggesting the inference that he committed the crime ”. We agreethat a non-confessional admission made by an accused person cannotbe regarded as “ confessional ” in character merely because it comesinto conflict with a defence which is later set up at the trial. The King
Cooray *; The King v. Attygalle *. The test of whether an “ admission ”amounts to a “ confession ” within the' meaning of Section 17 (2) mustbe decided by reference only to its own intrinsic terms. But in thepresent case the statement alleged to have been made by the appellantto Police Constable Jayasena was- inadmissible because, at the verylowest, it purports to. admit facts which are ‘ ‘ capable of being construedas establishing a prima facie case against the accused ”. The King v.Fernando s.
We do not doubt that if, in the course of making a " confession to aPolice Officer, an accused person makes certain additional statementswhich do not fall tvithin the ambit of Section 25, the reception in evidenceof those latter statements would not be objectionable provided (a)
1 (1939) 40 N. L. R. 289.* (1926) 28 N. L. R. 74.
* A. I. R. (1939) P. C. 47 at p. 52.* (1934) 37 N. L. R. 60.
» (1939) 41 N. L. R. 151.
GBATIAEX J.—Seyadit r. The King
that they are otherwise relevant and admissible, liex v. Vasu and (b).that, in the context in which the statements relied on were made, theyare demonstrably separable from those parts which were “ confessionalin character, so that their contents may be made known without indirectlyrevealing the confessional character of the remaining parts. This lattertest should be cautiously applied, and if the Court be left in doubt as towhether the “ confessional ” and the “ non-confessional ” statements toa Police Officer can reasonably be described as independent of one another,the non-confessional evidence shoyld also be rejected. One should notforget that even in England where the reception of evidence of a volun-tary confession is permissible in law, the whole account given by the-prisoner of the transaction must be placed before the Court-. Archbold(32nd Edition) page 400. The same analogy applies in the converse case,so that if an accused person, in describing a transaction to a PoliceOfficer, makes certain, statements which, though non-confessional, areinextricably interwoven with those statements which are confessional,it would be improper, we think, to circumvent the prohibitioncontained in Section 25 by isolating the former statements from theircontext. We mention these facts because there was some discussionin the course of the argument as to whether in the present case someportion, at least, of the evidence of constable Jayasena might havebeen led in some other form which was unobjectionable. We are notdisposed to give a decision on this hypothetical question withoutexamining the entire statement recorded by ^he Police Constable, andwe are content, therefore, to indicate what, in our opinion, are the generalprinciples which should guide the prosecution and the Presiding Judgein such cases.
It remains to consider whether the conviction of the appellant shouldbe affirmed under the proviso to Section 5 (1) of the Court of CriminalAppeal Ordinance notwithstanding the reception of the evidence whichMr. Wijemanne concedes was inadmissible. We have come to theconclusion that this is not a case in which the proviso can safely beapplied. The inadmissible evidence tendered by the prosecution was ofan extremely damaging character, and, in the form in which it wasreceived, it virtually destroyed the defences relied on by the appellant-.As Abrahams C.J. said in Kiriwasthu’s case (supra), it would obviouslybe dangerous to expect a jury with a confession before them, no matterhow much it was emphasised in the summing-up that the confessionwas not to be taken as true, not to draw the ordinary inference onedraws from an admision of guilt. Adopting in this case the samelanguage which was employed on that occasion, we are of the opinionthat “ the jury not only may have been, but very probably were, in-fluenced against the appellant-, considering what the terms of the con-fession were. That in suc^r circumstances the conviction cannot standis obvious ”.
For the reasons set out above, we quash the conviction of the appel-lant, and direct that he should be tried afresh on the indictment formurder.
Be trial ordered.
(1941) 21 C. L. W. 16.
SEYADU, Appellant, and THE KING, Respondent