DRIEBERG J.—The King v. E. F. C. Ludowyke.
1935Present: Drieberg J.
THE KING v. E. F. C. LUDOWYKE.
110—P. C. Galle, A 4,032.
Evidence—Charge of criminal breach of trust—Statements by a deceased personin a confession affecting himself and the accused—Admissibilityagainst accused—Evidence Ordinance, s. 32 (3).
The accused who was assistant sweeps secretary of the Galle GymkhanaClub was charged with criminal breach of trust of moneys belonging toJ>the club.
At the trial the Crown proposed to lead in evidence statements madeby H, a clerk (since deceased), who was assistant to the accused, to theSecretary of the club, to the Committee, and the Police.
The statements fell under three groups—
Admission of misappropriation by him of club money.
Admission of his having at the request of the accused deposited
club money in the accused’s account at a bank.
Statement regarding misappropriation by the accused in which
he took no part.
Held, that the statements under heads (a) and (b) were admissible, andthat the statement under head (c) was not admissible^ under section 32(3) of the Evidence Ordinance.
HE accused was charged before the Supreme Court with criminal
breach of trust of moneys belonging to the Galle Gymkhana Cluband with falsification of club moneys.
Schokman, C.C. (with him H. W. R. Weerasooriya, Acting C.C.), forthe Crown.
M. T. de S. Amarasekera (with him L. W. de Silva, instructed byF. W. E. de Vos, Proctor), for accused.,
March 12, 1935. Drieberg J.—
Before opening the case for the prosecution Mr. Schokman desireda ruling on certain matters of evidence he proposed to lead. He saidthat if this evidence was admissible it was necessary that he shouldrefer to it in opening his case. Mr. Amarasekera objects to this evidenceand it was agreed that I should decide on its admissibility at this stage.
DRIEBERG J.-—The King v. E. F. C. Ludowyke.
They are statements made by Herath, a clerk who assisted the accused ;he died before this prosecution began. They were statements made toMr. J. E. Perera, secretary of the club, statements made to the com-mittee of the club on February 13, 1933, to the auditor of the accountsof the club, and to the police.
The statements fall into three groups—first, admissions by Herathof misappropriation by him of club money, second, admissions of hishaving at the request of the accused deposited club money in the accountof the accused 'at the bank in Galle, thirdly, statements regardingmisappropriation by the accused in which Herath took no part.
The Crown relied on section 32 (3) of the Evidence Ordinance for theadmissibility of this evidence. The evidence of the third class of state-ments is not admissible, for they affect the accused only and are notagainst the pecuniary or proprietary interests of Herath nor woulcbthey expose him to a criminal prosecution or a suit for damages. Thefirst two groups of statements can be considered together, for the firstis an admission of his own criminal acts and the second is an admissionof his having aided and abetted the accused in his misappropriation ofclub money.
Mr. Amerasekera sought to exclude these statements from the operationof section 32 (3) for this reason. On April 4, 1933, the committee of theclub considered a charge then pending against Herath and decided todiscontinue his services but resolved not to take any action against himand further that his life insurance policy, which I take it he had depositedas security, should be returned to him.
All the statements of Herath which it is proposed to prove were madeafter this meeting and Mr. Amerasekera contends that as it was theredecided not to take action against him, Herath, in making these state-ments did not imperil his pecuniary or proprietary interests and hadsecured immunity from a prosecution or an action for damages.
The second part of this argument is obviously wrong. Apart fromthe question whether the committee had the right to make a final orderin the matter, the offence Herath confessed is non-compoundable andhe continued to be liable to prosecution though the committee decidednot to prosecute him • this circumstance alone brings his statementswithin the second part of section 32 (3) and render them admissible.
It is not therefore necessary to deal with the ether objections raisedby Mr. Amarasekera. On April 4, 1933, the committee dealt with onlyone matter against Herath, the misappropriation of Rs. 170 out of standmembers subscriptions. Further, at a meeting of April 13, 1933, thecommittee considered other charges against Herath, he was examined,a sub-committee was appointed to inquire into these charges and thatsub-committee recommended that he be dismissed, his insurance policycancelled and that the general committee should decide whether he shallbe prosecuted. At the inquiry by the sub-committee on April 13, 1933,Herath made statements compromising the accused and himself.
I declared my ruling on these points at the conclusion of the argumentand said that I would give my reasons in writing today.
POYSER J.—Samarasinghe v. Samarasekera.
1935Present: Poyser J.
SAMARASINGHE o. SAMARASEKERA.
78—P. C. Matara, 3,833.
Urban District Council—Payment of rates and taxes by candidate of personsnominating him—To avoid objection to nomination—No corrupt motive—Ordinance No. 11 of 1920, s. 36 (2).
Where a candidate for an Urban District Council election depositeda sum of money on account of any rates and taxes due from certainpersons, who had nominated him, in order to avoid any objection beingraised to the nomination papers and subsequently withdrew the money,no objection having been made,—
Held, that his conduct did not amount to the giving of a gratificationwithin the meaning of section 36 (2) of the bocal Government Ordinance,No. 11 of 1920.
A PPEAL from a conviction by the Police Magistrate of Matara.
R.L. Pereira, K.C. (with him Rajapakse and Senanayake), for accusedappellant.
H. V. Perera (with him S. W. Jayasuriya) for complainant, respondent.June 19, 1935. Poyser J.—
The appellant has been convicted, under section 36 (2) of OrdinanceNo. 11 of 1920, for making a payment to the Urban District Council ofthe rates and taxes due from certain voters with the object of inducingthe said voters to exercise their electoral rights in his favour. Therewas very little dispute as to the facts which are briefly as follows: —The appellant was a candidate for Ward No. 3 in the Matara UrbanDistrict Council elections. On nomination day, November 17, 1934,he went with his nomination papers to the Urban District Council Offices.The appellant had . 22 nomination papers but attached particularimportance to two of these, viz. :—one in which he was proposed byKarunanayaka and seconded by Coopman, and another one in which hewas proposed by Goonewardene and seconded by White. He attachedimportance to these particular nominations as he considered the above-mentioned persons were the most respectable of those who had signednomination papers on his behalf.
At the Urban District Council Offices the appellant heard a rumourthat his opponent was going to raise an objection to these nominationpapers on the ground that the persons signing them were in arrearswith their rates and taxes.
The appellant then, after a consultation with the clerk of the UrbanDistrict Council, in the course of which the latter suggested a depositof Rs. 50 in case he himself was in arrears, deposited a sum of Rs. 400on account of any arrears due by these proposers and seconders. Infact these persons were in arrears with their rates and taxes to the extentof Rs. 311.
When the Assistant Government Agent received the appellant’snomination papers no objection was recorded nor in fact could anyobjection have been recorded on the grounds that the proposer or seconderwere in arrears with their rates or taxes.
THE KING v. E. F. C. LUDOWYKE