The King v. Gunawardene.217
[Court of Criminal Appeal.] m
1941 Present : Howard C.J. and Soertsz and Hearne 33.
THE KING v. GUNAWARDENE.M. C. Panadure, 8J541.
Evidence—Statement to Police—Statement that conflicts with defence ofaccused—No inference of guilt—No confession—Evidence Ordinance,s. 17 (2).
The accused, who was charged with murder, made a complaint at thePolice Station and in the course of it made the following statement—“To-day at about 1 p.m., I was returning home from Batagoda withJayasena. On the high-road near Gunatilaka’s rubber land, oneAdiris, (2) John, (3) Aron came from Adiris’s house. John had a gunand John shouted to us to stop. We ran. Then John shot at ustwice. We were about 50 yards away from them. I received injurieson the left leg. Jayasena also received injuries. We ran a distanceand fell down. Later people collected and brought us here.”
At the trial, in cross-examination, the accused said that he went to thePolice Station and made a complaint. He then proceeded to denythat in the course of the complaint he made a statement.
At the close of the case for the defence the police constable to whomthe complaint was made was recalled by the Crown with the leave ofCourt and gave the actual words used by the accused.
Held, that the statement did not amount to a confession as it did notsuggest the inference that the accused committed the offence with whichhe was charged.
A statement made by an accused person to a police officer cannot beshut out merely because it conflicts with or tends to discredit a defencetaken on his behalf.
The King v. Kalubanda (.15 N. L. R. 422); Rex v. Ukkubanda(24 N. L. R. 327); and Rex v. Cooray (28 N. L. R. 74) referred to.
PPLICATION for leave to appeal from a conviction by Judge andjury before the 4th Western Circuit.
J. E. M. Obeyesekere (with him Shelton de Silva and V. Thillainathan),for accused, appellant.—The statement made by the accused amountedto a confession and was inadmissible under “section 25 of the EvidenceOrdinance. There are serious discrepancies between that statementand the evidence given by the accused in Court. The letting in of thatstatement definitely prejudiced the defence put forward at the trial.
[Soertsz J.—Was not the statement admissible under section 120 (6)qf the Evidence Ordinance or under section 122 of the Criminal ProcedureCode ?]
Those sections should be read as subordinate to section 25 of theEvidence Ordinance. The ruling in R. v. Kalu Banda1 is directly appli-cable. “To allow evidence by a police officer of the substance of astatement made to him by an accused from which incriminating circum-stances may be inferred would be contrary to the intention ofsection 25”—per Ennis J. See also R. v. Fernando*. This point wasalso considered in R. v. Kiriwasthu * and R. v. Cooray et al. *.
1 (1912) 15 N. L. R. 422.= (1939) 40 N. L. R. 289.
• (1939) 41 N. L. R. 151.1 (1926) 28 N. L. R. 74.
HOWARD C.J.—The King u. Gunawardene.
[Howard C.J.—Itv would appear that the question in the presentcase is similar tp that which arose in the Privy Council decision in DalSingh v. King Emperor *.]
The Indian Evidence Act does not have a definition of “ confession ”such as we have in section 17 (2) of our Evidence Ordinance and therefore,the Privy Council gave the word its ordinary meaning. According toour definition it bears an extended meaning.
Nihal Gunasekera, C.C., for the Crown.—The accused elected to giveevidence on his behalf. Sections 120 (6), 145 and 155 (c) of the EvidenceOrdinance (Cap. 11) are therefore applicable. Section 25 debars proof of aconfession. The statement of the accused made to the Police in thiscase was purely a complaint against certain persons, and -jannot bedescribed as a confession. The only authority against this view is R. v.Kalu Banda. That case has always given trouble. In that case, he Courtwas impressed by the fact that the jury might well have thought that theaccused had made a confession. In the present case the full statementwas before the jury, and there was a proper direction by the Judge regard-ing confessions. The jury were of opinion that the statement did notamount to a confession.
[Howard C.J.—Besides R. v. Cooray are there any other cases in whichDal Singh v. King Emperor was considered ?]
Yes, in R. v. Attygalle et al. R. v. Fernando * and R. v. Emanis *.Section 122 (3) of the Criminal Procedure Code would also be applicable—R. v. Davith Singho'
J. E. M. Obeyesekere, in reply, cited Hamam Kisha v. Emperor
Cur. adv. vult.
February 5, 1941. Howard C.J.—
This is an application for leave to appeal from a conviction for murderIn a trial before Mr. Justice de Kretser and a jury at Kalutara onDecember 18, 1940. Although the application was based on the facts,Counsel has also argued a point of law. In regard to the facts he hascontended that the evidence of the witness Thenoris in the trial Courtcontradicted what he told the police in the first complaint with regardto this offence. These contradictions were so material as to vitiate theverdict of the jury which, in the circumstances, Counsel contended wasunreasonable. This point was not seriously argued. In our opinion itv is without substance. The learned Judge in his charge to the juryinvited their particular attention to the contradictions in the evidenceof this witness. They could draw any necessary inferences therefrom.
', Even if they regarded the evidence of Thenoris as unworthy of beliefthere was ample testimony supplied by other witnesses to justify them incoming to the conclusion they did.
The point of law arises in connection with a statement made by theappellant to the police: In cross-examination the appellant said that hewent to the Police Station and made a complaint. He then proceeded to
I.'L. it. 44 Cal. 876.* (1940) 18 C. L. W. 121.
11934) 37 N. L. R. 60.5 (1936) 37 N. L. R. 313.
3 (1939) 41 N. L. R. 151.3 A. I. R. (1935) Rom. 27.
HOWARD C.J.—The King v. Gunawardene.
deny that in the course of this complaint he made a certain statement.At the close of the case for the defence, the police constable to whom thiscomplaint was made was recalled by Crown Counsel with the leave of theJudge and detailed the actual words used by the appellant. They wereas follows : —
“ 22 years ; of Kesselawawa. To-day at about 1 p.m. I was return-ing from Batagoda with Jayasena. On the high road, near Mr. Guna-tilaka’s rubber land, one Adiris, (2) John, (3) Aron came from Adiris’shouse. John had a gun and John shouted to us to stop. We ran.Then John shot at us twice. We were about 50 yards away from them.I received injuries on left leg. Jayasena also received injuries. Weran a distance and fell down. Later people- collected and broughtus here. ”
Counsel for the appellant maintains that this statement amounted to aconfession made to a police officer and was therefore inadmissible in evi-dence under the provisions of section 25 of the Evidence Ordinance. Insupport of this proposition reliance is placed on the case of The King v.Kalu Banda In fact this case may be described as the sheet anchoron which hangs the whole fabric of the appellant’s case. Without it theproposition would be unarguable. In Kalu Banda’s case the accusedwho was charged with having caused grievous hurt to one Balahamy,set up the defence that he was acting in self-defence. The prosecutionproved that the accused had made a certain statement to a police officer,and that in that statement he had not charged Balahamy with havingattacked or threatened to attack him. It was held that this evidenceof the police officer was not admissible and that the police officer wasallowed to give evidence of what was in substance a confession by theaccused. The statement of the accused was not put in evidence. Itwas contended on behalf of the Crown that the evidence of the accusedbeing silent with regard to his plea of self-defence was not evidence of a“ statement, oral or documentary ”, that what he said to the headmendid not amount to a confession and that this evidence was of conductonly and therefore admissible under section 8 of the Evidence Ordinance.These contentions were not accepted by the Court. Lascelles C. J. heldthat the headmen were allowed to give evidence of what was in substancea confession by the accused. That they were allowed indirectly todisclose part at least of the substance of the accused’s statement, theeffect of this disclosure being such as to suggest the inference that thedefence on which the accused relied was not set up by him at the timewhen, if true, it would naturally have been set up, and that it was there-fore false. The evidence was, therefore, inadmissible .as it amounted toan admission suggesting that the accused had committed the offenceand hence a confession by virtue of section 17 (2). The case of KaluBanda has been a source of considerable trouble when it has been underconsideration in later cases. In Rex v. Ukku Banda % Bertram C.J.endeavoured to explain it as follows :—
“ What I take Rex v. Kalu Banda to have .decided is this : Thatif the Crown at the trial of a prisoner tenders in evidence a statementmade by the prisoner, whether self-inculpatory or self-exculpatory in115 N. L. R. 422.* 24 N. L. R. 227.
HOWARD CUT.—The King v. Gunawardene.
intention, with a view to an inference being drawn from that statementagainst the prisoner, that statement becomes ex vi termini, as definedby section 17 (2), ‘a confession’ and that, if it was made to a police -officer, it cannot be received in evidence."
In Rex v. Cooray' the accused were charged with the murder of anInspector of Police. At the trial the Judge called a witness who it wasalleged had heard the accused call to a police constable, travelling in apassing bus: “ There, your Inspector is killed When the witnessdenied that he heard such a statement, the Judge read out the statementmade by him and recorded in the Police Information Book. It was heldthat the statement did not amount to a confession within the meaningof section 25 of the Evidence Ordinance. And that an admission, whichis not a' confession, does not become obnoxious to section 25 merelybecause it is found to be at conflict with a defence set up later. In Rex v.Cooray, Counsel for the accused relied on Rex v. Kalu Banda and arguedthat any statement by a person accused of an offence which suggestedan inference adverse to the defence set up by him is a confession. Havingregard to the explanation of the dcision in Kalu Banda by Bertram C.J.,in Rex v. Vkku Banda, such interpretation was clearly maintainable.The Court, however, constituted by three Judges, as it was in KaluBanda’s case, refused to accept this argument. In his judgment GarvinA.C.J., stated' that the effect of the judgments in Kalu Banda was thatthe prosecution may not invoke the aid of section 8 to enable a policeofficer to state what an accused person had not told him under circum-stances which gave rise to the inference that the statement made to himwas a confession. He stated further that the view of the Court in KaluBanda’s case was that the method adopted by the prosecution was cal-culated to produce exactly the same effect as if a statement containing aconfession had been placed before the jury. The Court also held thatthe case of Kalu Banda was complicated by other circumstances anddid not raise the issue in a simple form as in Rex v. Cooray. Garvin. A.C.J. then proceeded to consider and apply the case of Dal Singh v.King Emperor*. In that case Dal Singh who was indictdd for murderwas the first person to give information to the police. He made a longand detailed statement,' complaining that he had been assaulted byMohan and Jhunni as a result of which he became unconscious. Certainof his servants, he said, came to his rescue, whereupon his assailants ranaway, while he himself was carried to his house. He added that Jhunniand Mohan had beaten “ their old woman ” and were making preparationsto bring a false case against him. This statement was given in evidenceagainst Dal Singh at his trial for the murder of this woman. Lord Hal-dane, who gave the judgment of the Court, stated as follows:—“Thestatement is at several points at complete variance with what Dal Singhafterwards stated in Court. The Sessions Judge regarded the Documentas discrediting his defence. He had to decide between the story for theprosecution and that told for Dal Singh ”. The statement though itwas in conflict with the defence set up and was used for the purpose ofdiscrediting that defence was held to be in no sense a confession and* 88 N. L. R. 74.* (1917) 86 L. J. P. C. 140.
The King v. Ranhamy.
admissible against the accused who made it to the police. It was a self-exculpatory statement, not a confession, and it did not become a con-fession because it was at conflict with the defence later set up and wasused for the purpose of discrediting that defence. In following thisdecision Garvin A.C.J. in Rex v. Cooray (supra) stated that the law of Indiathough without a definition of “ confession ”, as in Ceylon, is the sameinasmuch as it is being stabilized on the basis of a definition in accordancewith that term in the Ceylon Ordinance. He also held that, if the plainwords of the Ordinance are to be the decisive test of whether of not astatement amounts to a confession, the statement made to the policemanin Rex v. Cooray did not come within its terms.
If the decision in Kalu Banda (supra) has the far reaching effectaccepted by Bertram C.J., in Rex v. Ukku Banda (supra) and contendedfor in this case and in Rex v. Cooray it can, having regard to the decisionin Dal Singh v. King Emperor (supra), no longer be regarded as good law.The statement made by the appellant in this case to P. C. Christians didnot suggest the inference that he committed the offence with which hewas charged. As in Dal Singh v. King Emperor this statement was inno sense a confession. As appears from its terms, it was rather in thenature of an information or charge against John for shooting at theappellant. As such, the statement is proper evidence against him. Ifthe contention put forward on behalf of the appellant is correct andevery statement made by an accused person to a police officer is to beshut out because it conflicts with or tends to discredit a defence takenon his behalf, then no admission by an accused person to a police officermay be given in evidence against him. This involves the extension andapplication to admissions of the rule of exclusion which the Legislaturehas limited to confessions.
For the reasons given in this judgment we are of opinion that theapplication must be dismissed.
THE KING v. GUNAWARDENE