Sri Lanka Law Reports11990] 1 Sri L.R.
v.THE ATTORNEY – GENERAL
BANDARANAYAKE, J„ JAMEEL.J. AND FERNANDO. J.
S.C. No. 54/87 – C.A. No. 123/84 – H.C. NEGOMBO 371/81.
JUNE 8. 1989.
Criminal Law – Jury not directed on confessional item of evidence – Is conviction vitiated?
The Accused – appellant was convicted of murd9r. The accused had gone to the PoliceStation and handed over knife to the Police but the knife was not the murder weapon. Nodirection was given to the Jury on the effect of this item of evidence and it was contendedthat the Jury may have inferred that this amounted to a confessional statement.
Ranjith Fonseka v. The Attorney-General
No evidence was led to the effect that the Appellant had made a statement, let alonea statement which may have been a confession.
A confession is an admission, and an admission is a * statement, oral or.documentqry”.The evidence complained of does not amount to evidence of statement. A “Statement' mayweN include a gesture, such as a nod of assent to a question, or a sign by a dumb person; it dearly does not indude the.Appellant's act of handing over a knife. A confession inaddition to being an admission must also state or suggest the inference that the Accusedcommitted the offence. Even if the evidence that the Appellant handed over a knife is a'Statement ’ yet it neither states or suggests any reference of a confession, nor operatesto inform the Court or create the impression that'the Accused had made a statementadmitting that he was the doe of the act complained of. The fact that such evidence mayhave been prejudicial to the Appellant or may have had the effect of strengthening the casefor the prosecution does not make it a confession. The evidence was not improperlyadmitted.
Cases referred to :
Obiyas Appuhamy v. The Queen – 54 NLR 32, 34.
The King v. Kalu Banda 15 NLR 422.
The King v. Cooray 28 NLR 74.
Regina v. Batcho 57 NLR 100.
The Queen v. Victor Perera 59 NLR 18S.
Regina v. Anandagoda 62 NLR 241 affirmed by Privy Council at 64 NLR 73.
De Soysa v. The Queen 75 NLR 534. 541.
APPEAL from a judgment of the Court of Appeal,
Ranjit Abeysuriya, P.C. with P. Jayewardene and Miss Ayomi de Silva for the Accused -appellant.
Upawansa Yapa, Deputy Solicitor – General, with Miss Jayasinghe B. TilakaratneSSCtorAttorney – General.
July 4. 1989.
The Appellant was found guilty of murder and was sentenced to death,his appeal against the conviction and sentences was dismissed by theCourt of Appeal, and he has appealed to this Court, having obtainedspecial leave to appeal. The learned High Court Judge did not direct thethe jury not to treat a certain item of evidence as a confession by theAccused – Appellant, and the question of law urged for our determinationin this appeal is whether the conviction was thereby vitiated.
Sri Lanka Law Reports
 1 SriLR.
The facts relevant to this question may be shortly stated. The widowof the deceased testified that she saw the Appellant stab her husbandwith a knife at about 12.15 p.m.; within a few minutes she arrived at thePolice Station and made a complaint. The Prosecution elicited evidence,from an Inspector attached to that Police Station, that at about 12.30 p.m.the Appellant had come to the Police Station and handed over a knife tohim; that he had then visited the scene taking the Appellant with him; andthat on his return he had handed over the Appellant to the Reserve. Noevidence was elicited suggesting that the Appellant had made a state-ment. The Inspector also stated that there was nothing smeared on theknife, which he had shown both to the widow and the J.M.O. Accordingto the J.M.O. the knife shown to him was like a table knife, and that theinjuries inflicted on the deceased could not have been caused with thatknife. The widow stated that the knife, shown to her resembled a knifewhich she had seen in the Appellant's house used for the purpose ofcutting “mallun’’ leaves, and was quite different to the weapon with whichthe deceased had been stabbed. It was thus the Prosecution casethroughout that this knife was not the murder weapon : indeed, theinspector testified further that, in consequence of the widow having saidthat this was not the murder weapon, he had unsuccessfully searched theappellant’s house on three occasions in an endeavour to find the murderweapon. There is no complaint as to the manner in which these facts were
set out in the summing – up.
Learned President’s Counsel relied heavily on the following portion ofthe judgment of the Court of Appeal:
“ In the present case evidence led may suggest that the statementvolunteered by the accused at the Police Station was a confession inview of the fact that the accused accompanied the Police to the sceneand on their return had been handed to the Police Officer at the PoliceStation.
There has been a non-direction as the judge had not directed thejury not to consider this item of evidence as a confession made by theaccused to the Police Officer and that it was only evidence that a knifehad been handed over to the Police.”
He submitted that for the purpose of this appeal we must proceed onthe basis that a statement had been made by the Appellant to the Police,
Ranjith Fonseka v. The Attorney-General (Fernando, J.)
and that the jury may welt have inferred that this statement was confes-sional in nature; that in the absence of a suitable direction by the learnedHigh Court Judge, the conviction could not stand; and that in the circum-stances, the Court of Appeal erred in applying the proviso to section 334
of the Code of Criminal Procedure Act.
Upon a scrutiny of the relevant evidence, which has been summarizedabove, it is clearthat no evidence was led to the effect that the Appellanthad' ihade a statement, let alone a statement which may have been aconfession. The Court of Appeal was clearly in error in concluding thatthere was evidence that a statement had been made by the Appellant. Icannot accept any contention that' our decision in this appeal must be ona basis which perpetuates that error.
|t was the alternative submission of learned President's Counsel thatfrom this evidence it could be inferred that the Appellant had made astatement, and also that such statement was of a confessional nature. Herelied on Obiyas Appuhamy v. The Queen (1) in which evidence was ledthat the accused volunteered a statement to a police officer, whothereupon immediately handcuffed the accused and took him to thescene of the offence :
“Section 25 (i) of the Evidence Ordinance provides that no confes-sion made to a police officer shaii be proved as against a person'accused of any offence. It is not solely evidence of the actual terms ofa confession that can be obnoxious to this provision, but any evidencewhich if accepted would lead to the inference that the accused madea confession to a police officer and so 'prove' such a confession. “ (perGunasekara, J.)
This decision is not applicable here for the reason that the Prosecutionscrupulously refrained from leading any evidence, or even suggesting,that the Appellant made a statement. I respectfully agree that the merefact that a statement was made, without any reference to its contents, canbe repugnant to section 25 (i) in appropriate circumstances ; and thatevidence of other acts and events from which inferences can be drawnas to the confessional nature of such a statement is also inadmissible.However, Gunasekara, J., neither held nor suggested that section 25 (1)precludes evidence of such acts and events in the absence of anyevidence that the accused made a statement to a Police Officer. Further,
Sri Lanka law Reports
11990] 1 Sri L.R.
while a reasonable inference can be drawn by a jury from the act ofhandcuffing the accused, that his statement in some way implicated himin the Offence, such an inference can hardly be drawn from the act ofhanding over a knife which was not the murder weapon.
No decision was cited in which evidence of such acts and events wasper se held to amount to a confession: Counsel cited the King v. KaluBahda (2) the King v. Cooray (3), Regina v. Batcho (4) and The Queenv. Victor Perera (5) none pf which involved this question. I am dispensedfrom the need to analyse these decisions, as the entire series of decisionsdealing with the scope of sections. 17 (2) and 25 of the EvidenceOrdinance were exhaustively analysed by H.N.G. Fernando, C.J., inRejina v. Anandagoda (6) affirmed 64 N.L.R. 73, P.C. and l am inrespectful agreement with his conclusion that the decisions of our Courtspronouncing upon the inadmissibility oj statements made to PoliceOfficers, and of evidence concerning such statements, faH into thefollowing categories:
A statement directly admitting that the accused was the doer of. the act charged It makes no difference if, in addition to an
admission of the act charged, there is also exculpatory ormitigatory matter, because the admission would prove the Prose-cution case and the burden of proving what is exculpatory orniitigaiory is on the accused.
A statement which, though not an admission that the accusedwas the doer of the act charged, contains admissions, theintrinsic terms of which suggest the inference that he did the act,is inadmissible.
Evidence of Police Officers, or questions in cross – examinationand / or statements by prosecuting counsel, which operate toinform the Court or create the impression that the accused hadmade a statement admitting that he was the doer of the actcharged,.is inadmissible.
In a case where the prosecution has the burden of provingpossession by the accused of a stolen article, a statement thatthe accused had in fact been in possession thereof, is inadmis-sible. Similar statements admitting possession in cases where
Ranjtth Fonseka v. Tha Attorney-General (Fernando, J.)55
possession is an essential ingredient of the offence charged mayprobably fall into this category.
A confession is an admission, and an admission isu a statement, oralor documentary”. The evidence complained of does not amount toevidence of a statement; while I recognise that a ” Statement" may wellinclude a gesture, such as a nod of assent to a question, or a sign by adumb person, it clearly does not include the Appellant’s act of handingover a knife. In all the cases falling under category (iii) above, there wasevidence that a statement was made, and I see no justification for,extending the scope of category (iii) to situations where there was no suchevidence. A confession, in addition to being an admission, must also stateor suggest the inference that the accused committed the offence. Evenif, contrary to my view, the evidence that the Appellant handed over a knifeis a “statement" yet it neither states or suggests any such inference, nor“ operates to inform the Court or create the impression that the accused ,had made a statement admitting that he was the doer of the act charged”.The fact that such evidence may have been prejudicial to the Appellant- and the possibility that he was seeking to mislead the investigators wasadverted to – or may have had the effect of strengthening the case for theProsecution, does not make it a confession. That evidence was notimproperly admitted.
Learned President’s Counsel finally contended that even though theimpugned evidence did not amount to a confession, and even if it couldnot reasonably have been so considered by the jury, there was neverthe-less a possibility that the jury might have thought that the Appellant hadmade a confessional statement, and that it was therefore the duty of thelearned High Court Judge to direct the jury that it was not a confession.Whether or not, as a counsel of perfection, that might have been done,there was certainly no duty to do so, and the failure to do so did not resultin any illegality or prejudice to the Appellant. Our system of criminal justicerightly imposes on the Judiciary an onerous duty of fairness to theaccused, but this duty cannot be exalted into a barrier which wouldobstruct the administration of justice, to the detriment of the victims ofcrime as well as the community at large.
It is thus hardly necessary to scrutinise the contention that the provisoto section 334 (1) was wrongly applied. The Court of Appeal referred tode Zoysa v. The Queen (7).
Sri Larika Law Reports
11990] 1 Sri L.R.
“…. if, as we confidently think, the jury did accept as true theprosecution evidence on the material points, then the further wronginstruction could have contributed little tothe jury's ultimate verdict,"
and took the view, which I share, that there was strong and convincingevidence as to the Appellant's guilt, and that any direction regarding theimpugned evidence would not have changed the verdict of the jury.
The appeal is therefore dismissed:
BANDARANAYAKE, J. -1 agree.
RANJITH FONSEKA v. THE ATTORNEY-GENERAL