BASNAYAKE, C.J.—The Queen v. Martin Silva
[IS THE COUBT OF CRIMINAL APPEAL]
1957Present: Basnayake, C.J. (President), H. N. G. Fernando, J.,and L. W. de Silva, A.J.THE QUEEN v. A. G. MARTIN SILVA and othersAppeals 64, 66, 67, 68, 69, 74, with Applications 73, 75, 76, 77, 78, 84
S. C. 33—M. C. Badulla-Haldumulla, 22,459
Evidence—Unsworn statement by accused inculpating co-accused—Evidential value—Misdirection—Penal Code, ss, 47SA, 47SD.
A statement made from the dock by an accused person inculpating a oo-accused is not evidence against the co-accused, and the jury should be warnedclearly and unmistakably not to take it into account against the co-accused.
/APPEALS, with applications, against certain convictions in a trialbefore the Supreme Court.
Colvin R. de Silva, with V. Vidyasagara, for 1st Accused-Appellant.
Colvin R. de Silva, with M. L. de Silva, for 3rd Accused-Appellant.
E. Chitty, Q.C., with Colvin R. de SUva, D. J. Horagoda and A. M.Coomaraswamy, for 6th Accused-Appellant.
2nd, 4th and 5th Accused-Appellants in person.
V. T. Thamotheram, Senior Crown Counsel, with J. R. M. Perera,Crown Counsel, for the Attorney-General.
Cur. adv. vuU.
November 18,1957. Basnayake, C.J.—
All the six appellants were indicted on charges of conspiracy to commitan offence punishable under section 478A and of committing an offencepunishable under section 478D of the Penal Code. An additional chargeunder section 478A of the Penal Code was made against the 2nd, 3rd and4th appellants and a further charge under section 478D against the 5thappellant.
All the appellants were found guilty of the charges laid against themin the indictment.
On each of the charges the 1st, 2nd, 5th, and 6th appellants weresentenced to 8 years’ rigorous imprisonment, and the 3rd and 4th
BA8KAYAKE, 'p.Jij—The Queen v. Martin Silva
appellants to five years’ rigorous imprisonment, the sentences to runconcurrently. They have all appealed to this Court.
At the hearing of this appeal the 1st, 3rd and 6th were represented bycounsel while the 2nd, 4th, and 5th were unrepresented.
Shortly the material facts are as follows: The 1st appellant is a well-to-do trader of Diyatalawa, the 2nd, 3rd, and 4th appellants are compositorsby trade, the 5th appellant is a motor mechanic running a private motorrepair workshop of his own at Bandarawela, and the 6th appellant is theowner of a printing press at Amunudowa in the same town.
On 1st April 1956 When a police party led by Inspector Thavarajahraided a house in Diyatalawa known as Down Patrick owned by the 1stappellant they found the 2nd, 3rd, and 4th appellants in a room of thehouse in which there was a platen printing machine. The 2nd appellanthad his foot on the pedal of the machine (P. 26) and appeared to beworking it. The 3rd appellant was behind the printing machine aboutone and a half feet away from it and the 4th appellant was close to himon his left. The witness Aloysius who is admittedly an accomplice andthe star witness in the case was at the doorway leading from this room toanother. On the feed-board of the printing machine were 58 partlyprinted one-rupee currency notes. There were 33 coloured sheets ofpaper on the left-hand side of the feed-board. The circular disc of theprinting machine had a coating of fresh blue ink. There was on themachine a metal block bearing the impressions to be found on the reverseof genuine one-rupee currency notes.
There were on the floor about 2 feet away from the printing machineseven mounted blocks bearing impressions of the various designs of Re. 1currency notes. Along with them were two moulds or rubber seals forimpressing on paper the lion watermark found on one-rupee currencynotes. There were several tins of coloured ink on an almirah nearthe printing machine and a bottle of white ink on the floor. On thefloor was one inkduct. There were tools and a wealth of other materialsused or to be used in connexion with the printing of currency notes.There were two almirahs in the room placed in such a way as to preventthe printing machine from being seen from outside. There was a windowthe blinds of which were drawn. Immediately above the machine was adevice for giving a signal to those working at the machine. In theroom adjoining on the floor were some sheets of paper, 2,472 in all, bearingsome colours and an impression of one of the designs of a rupee note.They were spread out on sheets of old newspaper. In the same room wasa cardboard box containing 2,359 similar sheets of paper. There weretwo sheets of corrugated zinc. On them were some charcoal and fire-wood.
The appellants and Aloysius were arrested and taken to the PoliceStation. Sergeant Milan Perera and two constables were left behindto guard the house and Sergeant Rupasinghe was sent to arrest the
BASNAYAKE, C.J.—The Queen v. Martin Silva
1st appellant. While Sergeant Perera was guarding the house the 5thappellant arrived by oar and entered the house carrying two bundles ofpaper which on examination were found to contain a watermark impres-sion described by the Government Printer as the imitation of the water-mark lion similar to the design of the watermark of the one-rupeecurrency note now in circulation. Each sheet had two such marks.The partly printed currency notes found in the house had the samewatermark (P21, P22). There were 17,176 sheets of paper in all inthe two bundles. Sergeant Perera arrested the 5th appellant andsearched the car and found on the rear seat a gunny bag containing rice,brown sugar, Bombay onions, flour, coconuts, etc. He then telephonedthe Police Station and informed Inspector Thavarajah of the arrest.Sergeant Rupasinghe came in response to the message and removed the5th appellant to the Police Station with the bundles of paper he hadbrought.
It would appear that somewhere in 1955 about the month of Octoberthe 2nd appellant negotiated the sale of the printing machine found atDown Patrick for Rs. 2,150, the purchaser being the 6th appellant andthe seller Mrs. Thejawathie Gunawardene. The 2nd appellant receiveda commission of Rs. 200. The printing machine was removed fromColombo on 26th October 1955. The 6th appellant paid for it by chequein favour of Mrs. Thejawathie Gunawardene. The printing machinehad three rollers when it was sold but when it was seized it had fiverollers and a new inkduct suitable for multicolour printing. Thismachine was transported by a lorry belonging to the Bandarawela Co-operative Stores to the Singhagiri Printing Works owned by the 6thappellant at Amunudowa in Bandarawela.
In early December 1955 the 2nd appellant placed an order for an inkductwith the witness Aloysius who is a tinker by trade. He next brought afeed roller and wanted him to make the inkduct to fit the roller. Itwould appear that on this occasion he confided in Aloysius that it wasrequired for counterfeiting notes. On a subsequent visit the 2nd ap-pellant invited Aloysius to his room in Bloemendhal Road, Colombo.There he met the 4th appellant. The 2nd appellant told the witnessAloysius on this occasion that it would be necessary for him to come toDiyatalawa. About one and a half months later he actually invited himto go with him to fit the inkduct and roller to the machine. Theytravelled by bus to Bandarawela and thence to Diyatalawa. They gotdown near the Diyatalawa Post Office and the 2nd appellant fetched akey from a fish stall near by. Then they went to Down Patrick and the2nd appellant opened the door with the key he had brought. ThenAloysius was asked to fix the inkduct; but he was unable to do so as thefeed roller was missing. The feed roller could not be fitted as some boltsand screws were missing. The 1st appellant came there and entered theroom in which the printing machine was while they were discussing thematter. He was informed of the defect and he said he would send thebaas. Then two persons came in an Austin car No. EL 3075 and knockedat the door. The 1st appellant opened the door. The visitors were the
BASNAYAKE, C.J.—-The Queen v. Martin Silva
5th and 6th appellants. The 2nd appellant asked the 5th appellantto fix the feed roller. The 1st continued to talk to the 6th appellant inthe hall. He did not enter the room in which the press was. The 5thappellant said that he would attend to the work early next morning andleft with the 6th appellant in the car in which they came. The 1stappellant locked the door immediately they left and later he too left thehouse and sent food for the 2nd appellant and Aloysius in a tiffin carrier.Next morning about 8 a.m. the 5th appellant came and fixed the feedroller with bolts and Aloysius fitted the inkduct which was tested. The1st appellant came at 10 a.m. On being told by the 2nd appellant thatthe machine must be tested he went out of the room and brought a parceland handed it to the 2nd appellant. The parcel contained eight blocks.The 1st appellant brought sheets of paper bearing the lion watermark.After testing the blocks the 2nd appellant said that engraving toolswere necessary to correct some flaws in the blocks. The 1st appellantsaid he would buy them from the town. Aloysius who was given theprinted notes to be burnt retained two of them and put them in his boxwhen he returned to Colombo and when he was arrested handed them tothe Police. About 11.30 a.m. that day Aloysius left for Colombo. The1st appellant gave him Rs. 20. The money was actually handed to himby the 5th appellant. Two weeks later Aloysius came to Down Patrickfor the second time at about 8 a.m. He travelled by the night mailtrain from Colombo. When he tapped the door the 1st appellant openedit. On being asked where the others were he said they had gone toColombo, and he complained about the delay. Together they went tothe room in which the Press was. On this occasion Aloysius noticedthe device for giving an alarm and on inquiring about it was informed bythe 1st appellant that it was a device to give a signal to stop work ifany one came. It was fitted by the 5th appellant, he said. He alsoexplained that the firewood was for burning the counterfeit notes in casethe Police came. Aloysius then left in the company of the 1st appellantand returned to Colombo. Aloysius’s third visit was on 31st March.This time he entered the house by the back door which was open. Hefound the 4th appellant in the kitchen preparing tea, and the 2nd and3rd appellants were inside the house near the printing machine. Aftertea the 2nd appellant started to print one-rupee notes, and the 3rd and4th appellants stood by and put the printed notes to dry on sheets ofnewspaper in the adjoining room. About one thousand notes hadbeen printed by the time the Police raided.
At the trial the 1st appellant gave evidence and called witnesses on hisbehalf. He disclaimed all knowledge of the crime and stated that at therelevant time the house was under a lease to the 6th appellant. The 2nd3rd and 4th appellants also gave evidence while the 5th made a statementfrom the dock exculpating himself of the crimes with which he wascharged. In the course of that statement he said that he transportedthe printing press which was packed in two boxes from the 6th appellant’sprinting establishment to the house of the 1st appellant at the latter’srequest. He also said that the paper found on him had been given tohim by the 1st appellant on the day he was arrested when he was about
BASNAYAKE, C.J.—The Queen v. Martin Silva
to close his workshop and that the 1st appellant asked him to take itand the bag of provisions found in his car as they were urgently needed.He referred to the deed of lease of Down Patrick in his favour and statedthat it was a blind and was not meant to be acted on and that he did notoccupy the bungalow at all.
The main ground of appeal pressed on behalf of the 1st appellant isthat the learned trial Judge did not adequately direct the jury as to howthe statement of the 5th appellant from the dock should be treated inso far as it affects the 1st appellant.
When dealing with the case against the 1st appellant the learnedtrial Judge after referring to it said:
“ Of course he stated all this in an unsworn statement made by himfrom the dock. Now, gentlemen of the jury, the weight to he attachedto an unsworn statement is not the same as that you attach to thesworn evidence of an accused person. The most potent weaponthat is available to a lawyer for the purpose of testing the evidenceof a witness is cross-examination, but when an accused personmakes an unsworn statement from the dock, he cannot be cross-examined. Therefore his evidence cannot be tested regarding itsaccuracy and truth, but you should not ignore an unsworn statement.Consider it for whatever it is worth ….
“ On the other hand, gentlemen of the jury, do you believe the storyof the 5th accused that he signed this deed in order to oblige the 1staccused to enable the latter to send away his wife and children from thehouse ? The case for the prosecution is that that position is not true,that both the 1st and 5th accused knew the purpose for which thisdeed was executed. . . .
“ Gentlemen of the jury, evidence of an accused person given onoath in this Court, you are entitled to make use of against his co-accused. Of course, you must always bear in mind that he is also anaccomplice. Bear in mind that he is an accomplice and that his evi-dence must be treated as the evidence of an accomplice, hut the un-sworn statement made by the 5th accused, you are not entitled tomake use of against the other accused. The evidence of a co-accused,you must treat in the same manner as you treat the evidence of anaccomplice. ”
The last direction was given after learned Crown Counsel had on beingasked whether there was anything else he should mention invited thelearned trial Judge’s attention to the difference between the evidenceand the unsworn statement of a co-accused.
The statement of a co-accused inculpating another accused madefrom the dock is subject to the infirmity that it is the statement of anaccomplice not on oath and not subject to cross-examination by theaccused against whom it is made. It has been the practice both here
BASNAYAKE, C.J.—The Queen v. Marlin Silva
and in England to carefully warn juries not to take such statements intoaccount. It was stated by a Bench of five Judges of the Supreme Courtin the case of Bex v. Ukku Banda1 “ that where in a criminal trialtwo co-accused persons elect not to give evidence, but are content torely either upon their statements in the Police Court or upon unswornstatements in the dock, the jury should be warned, where such a statementby one prisoner inculpates the other, that it should not be taken intoaccount against him. ”
Though in that case the Court was considering the question of sworntestimony of a prisoner inculpating another, the opinion of the Benchwith regard to unsworn statements is one with which we with greatrespect agree and we think that the trial Judge should warn the juryclearly and unmistakably that the unsworn statement of a co-accusedshould not be taken into account against another accused. In the recentoase of Sumatapalage Reginald Chmawardene2 the Court of CriminalAppeal in England ruled that in the case of a statement of a co-accused,“ it is the duty of the Judge to impress on the Jury that the statement ofone prisoner not made on oath in the course of the trial is not evidenceagainst the other and must be entirely disregarded With thatstatement of the law we are in agreement. In the instant oase thelearned Judge did not clearly impress on the jury that they must dis-regard the statement of the 5th accused made from the dock in consideringthe case of the 1st accused. On the contrary he seems to have indicatedthat they might consider it as against him subject to its infirmities forwhat it is worth. That direction is wrong and the contention of learnedcounsel that there has been a misdirection in this respeot is entitled tosucceed.
Although at the end of the summing up the learned Judge gave anappropriate direction when his attention was drawn to the omission bylearned Crown Counsel, he omitted to set right the irregular directionearlier given by him.
Learned Crown Counsel contended that the misdirection has caused nosubstantial miscarriage of justice because the other evidence conclusivelyestablishes the 1st appellant’s complicity in the crime. He invited ourattention to passages in the evidence too numerous to reproduce herewhich go to establish his guilt conclusively. We are of opinion that noreasonable jury, after a proper direction, could have failed to convictthis appellant. We accordingly dismiss his appeal and refuse his applica-tion. Learned counsel for the 3rd appellant has not urged any matter ofimportance on his behalf and we therefore dismiss his appeal and refusehis application.
We also dismiss the appeals and refuse the applications of the 2nd,4th, and 5th appellants who appeared in person as they have not urgedany good reason why the verdict against them should be set aside.
1 24 N. L. R. 327 at 334.
a 36 Or. App. R. 86 at 91.
T. S. FERNANDO, J.—Muna&inghe v. Nelson
In regard to the 6th appellant we are of opinion that the evidencedoes not support his conviction. The circumstances proved againsthim are all consistent with his innocence. The purchase of the printingmachine, the sale of it to the 1st appellant, the visit of the 2nd appellantto his hotel, wrongly described as Singhagiri Hotel instead of SinghagiriRestaurant, his visit to Down Patrick with the 6th appellant whenAloysius was there for the first time, do not establish his complicity inthe crimes alleged against him. We think that the verdict of the jurycannot he supported having regard to the evidence and we accordinglyallow the appeal of the 6th appellant, quash his conviction and directa judgment of acquittal to be entered.
Appeals of 1st, 2nd-, 3rd, 4th and 5th appellants dismissed.
Appeal of 6th appellant allowed.
THE QUEEN v. A. G. MARTIN SILVA and others