WANASUNDERA, J., COLIN-THOME, J.. RANASINGHE, J., TAMBIAH, J.
AND L. H. DE ALWIS, J.
S.C. APPEAL 43/84-H.C. 624/B.
FEBRUARY 17. 18. 19, 1986 AND JUNE 30. 1 986.
Bribery – Bribery Act ss. 8. 16, 18(c) – Right to silence – The Code of CriminalProcedure Act, section 110- Evidence Ordinance, section 105 – Burden of proof that. gratification was authorised by law on the terms of his employment.
The accused-appellant a public officer (Interpreter of a court) was held to haveaccepted a gratification of Rs. 50 from an accused person allegedly to save him from aprison sentence. The accused was indicted before the High Court on two counts'underthe Bribery Act. He was acquitted on count 1 but convicted on count 2.
The accused-appellant while giving his own account of the incident relied on three maindefences:-
Violation of his right to silence by the police interrogators,
Failure to accept his exculpatory statement that the money was an advance for a 'translation job,
Failure to consider the two charges .separately.
Under section 110(1) of the Code of Criminal Procedure Act the police areinvested with powers during the investigations of offences of examining orally anyperson supposed to be acquainted with the facts and circumstances of the case andthe person interrogated is bound to answer truly all such questions relating to the caseput to him except questions which have a tendency to expose him to a criminal chargeor to a penalty or forfeiture. In Sri Lanka, unlike in England, the right to silence isrestricted only to questions which would have a tendency to expose any person to acriminal charge or to a penalty or forfeiture. Further if the accused person does make anincriminating statement in answer to questions by the police that statement shall not beproved against him at the trial as section 25 of the Evidence Ordinance expresslyforbids it subject to the proviso in section 27 of the Evidence Ordinance.
The exculpatory dock statement that the payment of Rs. 50 was an advance fee fortranslating an appeal brief though admissible in evidence was belated and not made atthe earliest opportunity and was rightly rejected.
■ (3) The acquittal of the accused-appellant on the first count of having accepted agratification as an inducement or reward for interfering with the due administration ofjustice-is an offence under s. 1 6 of the Bribery Act-did not call for an independentreview by the Court of Appeal of the facts relating to count 2 where the accused wasbeing charged for accepting a gratification as a State Officer under s. 19 of the BriberyAct as amended by Act No. 40 of 1958. There was no offence if the payment wasauthorised by law or the terms of his employment but the burden of proving this was onthe accused in view of the provisions of the new proviso to s. 19 of the Bribery Actbrought in by the amendment. The accused had failed to discharge this burden.
Cases referred to:
ft v. May-(1952) 36 Cr. App. ft. 91. 93.
ftv. Prager-(1972) 56 Cr. App. ft 151(1972) 1 All E.R. 1114.
Hall v. Regina-(1971) I All E.R. 322.
ftv. Whitehead- (1929) IK B 99.
ftv. Keeling-(1942) 1 All E.R. 507.
ftv. Feigenbaum -(1919) IK B 431.
ftv. Ryan-(1966) 50 Cr. App. ft. 144. 148.
ftv. Sullivan-(1966) 51 Cr.App. ft. 102.
ftv. Gilbert-! 1978) 66 Cr. App. ft. 237.
ftv. Lewis-(1973) 57 Cr. App. ft. 860.
Nathen s Case-(1968) 52 Cr. App. ft. 97.
Van Cuylenberg v. Caffoor-(1933) 34 N.L.R. 433..
Van Cuylenbergv. Sellamuttu-(1933) 35 N.L.R. 99.
Deheragoda v. Alwis-(1913) 16 N.L.R. 233.
Sugathadasa v. The Republic of Sri Lanka-(1977) N.L.R. 495.
The Queen v. Kularatne-(1968) 71 N.L.R. 529. 557.
MohamedAuf v. The Queen-(1967) 69 N.L.R. 337, 343.
APPEAL from a judgment of the Court of Appeal.
R. S. R. Coomaraswamy, P. C. with Lakshman de Alwis, Rohan de Alwis and RaviAlgama for accused-appellant.
Asoka de Z. Gunawardena, D. S. G. with Nihara Rodrigo, S.C. for Attorney-General.
Cur. adv. vult.
July 15, 1986.
The accused-appellant was indicted under two counts as follows
That on or about the 2nd December, 1975 being an officer ofthe Homagama Magistrate's Court, to wit. InterpreterMudaliyar, you did accept a gratification of Rs. 50 from AvisSingho as an inducement or reward for interfering with the dueadministration of justice in Magistrate's Court. Homagama, caseNo. 22928, an offence punishable under section 16 of theBribery Act;
That at the same time and place aforesaid and in the course ofthe same transaction you being a state officer, to wit. InterpreterMudaliyar, Magistrate's Court, Homagama, you did accept agratification of Rs 50 from the said Avis Singho an offencepunishable under section 19(c) of the Bribery Act as amendedby section 8 of the Bribery (Amendment) Law No. 38 of 1 974.
The High Court Judge found the accused-appellant guilty under bothcounts. He was sentenced to one year's rigorous imprisonment oneach count, the sentences to run concurrently, and to a fine of Rs.
on each count, in default of payment of the fine to six weeks'rigorous imprisonment, and also to pay a penalty of Rs. 100.
The accused-appellant appealed to the Court of Appeal. The Courtof Appeal allowed the appeal against the conviction and sentence on„count 1 and dismissed the appeal against the conviction and sentenceon count 2, subject to the penalty of Rs. 100 being reduced to Rs. 50.
Avis Singho and one other were charged for theft in theMagistrate's Court, Homagama, case No. 22929. On 11.11.1975Avis Singho and his co-accused pleaded guilty to the charge. Theywere finger-printed and warned to appear in Court on 25.1 1.75 forsentence. Thereafter Avis Singho made representations to the
Supreme Court through his attorney-at-law alleging that he had beenforced by the Judge and the Interpreter Mudaliyar to plead guilty. Hecould not appear before the Magistrate’s Court on 25.1 1.75 andsentence was postponed for the 2nd December.
On 26.11.75 Avis Singho met the accused-appellant (hereinaftercalled the appellant) to obtain relief by way of a light sentence. Hehoped that the appellant would not disclose to the Court that he hadtwo previous convictions for theft. The appellant promised to obtainsome relief and solicited a sum of Rs. 50. Avis Singho promised tomeet the appellant on 2.12.75 the next calling date.with the money.
On 27.1 1.75 Avis Singho made a complaint to the BriberyCommissioner's Department and it was decided to lay a trap for theappellant.on 2.12.75.
Inspector V. Dharmapala who was in charge of the arrangementsinstructed Avis Singho to meet the appellant along with PoliceConstable Bissomenika who was to pose as his sister. He was alsohanded marked notes totalling Rs. 50 to be given to the appellant.
. Inspector Dharmapala instructed Avis Singho to discuss with theappellant about the money he had solicited and to inquire from him thenature of the relief he would be granted. Avis Singho was alsoinstructed by Inspector Dharmapala Jo have this discussion with theappellant in the presence and hearing of Bissomenika.
When Avis Singho along with Bissomenika met the appellant on2.12.75 he merely told the appellant "I have brought the money that Ipromised" and gave the money to the appellant. The appellant put themoney in his pocket. Avis Singho failed to carry out two vitalinstructions given him by Inspector Dharmapala, namely, to inquirefrom the appellant the nature of the relief he would be granted and todiscuss this matter in the hearing of Bissomenika.
At the trial Avis Singho insisted that he spoke to the appellant in anormal tone to be heard by Bissomenika. On this point he wascontradicted by Bissomenika who stated that Avis Singho bent downand spoke to the appellant softly contrary to Inspector Dharmapala'sinstructions and she did not hear what he said. Avis Singho was alsocontradicted by his statement to the police where he admitted that he"bent down and told the suspect in a soft tone that he had brought themoney he promised". He added "I thought that if I discuss about thebribe in a loud tone, that the suspect would suspect me and notaccept the bribe from me. Hence I spoke to him softly".
Bissomenika stated that after the appeilant accepted the markednotes she asked him "Sir, will my elder brother go to jail?" Theappellant replied that he would save her brother with a fine withoutsending him to jail.
Inspector Dharmapala stated that on receiving ajarearranged signalhe entered the Courthouse and requested the appellant to hand overthe bribe that he had accepted. The appellant got up from his seattook a purse from his right hand hip pocket, removed the markednotes from his purse and handed them to the Inspector. The caserecord was before the appellant on his table. Thereafter the appellantwas charged, taken into custody and searched. He was taken to theresidence of the Magistrate-of Homagama and later brought to the ;Bribery Commissioner's Department where his statement wasrecorded.
The appellant made a dock statement. He stated that Avis Singhocame to see him on 14.1 1.75 and requested him to translate intoEnglish an appeal brief and to type it in triplicate. He went through thecopy of the appeal and told Avis Singho that it would take time andasked him to bring it later with an advance. On 126.96.36.199 Avis Singhomet him with a female. He bent down and said in a soft tone "I broughtthe advance. Keep it, otherwise I might spend it". He accepted themoney. The female asked him, "Sir, will my elder brother go'to jail?" ;He replied "He will go to jail on today's case". Then it struck him thatthere was an earlier case, thereafter he told her "He will escape with afine". He did. not tell her he would save Avis Singho with a fine.
He was taken by Inspector Dharmapala to the residence of theJudge. He told the Judge "He (Avis Singho) paid off a grudge against -Court".
He did not think it was proper for him to tell Inspector Dharmapalathat the money was taken as fees-for translation and that this amountof money was taken as an advance. He intended to place these factsbefore the Bribery Commissioner but unfortunately he was not takenbefore him.
C. Amerasekera, Office Assistant of the Ministry of Justice, calledby the prosecution, stated that the appellant was Interpreter in theMagistrate's Court of Homagama in 1 975. He was a State,Officer. Hewas entitled to charge copying fees and translation fees but he had toissue a receipt on Form 172 for those fees. In this case the appellanthad not issued a receipt to Avis Singho.
The main grounds of appeal from the judgment of the Court ofAppeal were:-
That there was a misjoinder of charges. Learned President'sCounsel for the appellant abandoned this submission in thecourse of the argument of this appeal.
That there was a material misdirection as to the right to silenceof the appellant.
That there was a misdirection on a vital point used against theappellant, to wit, the contents of the reply that the appellantgave to the question asked by Bissomenika. according to hisdock statement.
That there was a misdirection in acting on the findings of fact ofthe High Court Judge (who failed to separate the evidencerelating to the two charges and to consider the two chargesseparately and whose judgment was set aside on Charge 1) inthe revjew by the Court of Appeal of the evidence against theappellant on Charge 2, without an independent review.
Learned President's Counsel for the appellant submitted that asthere was no express provision in our law dealing with the legality andpropriety of comment by court on the right to silence exercised by anaccused person during the police investigation we should have regardto the provisions of section 100 of the Evidence Ordinance and haverecourse to the corresponding law of evidence for the time beingobtaining in England.
The imugned portions of the judgment of the Court of Appeal whichlearned President's Counsel submitted violated the accused's "Rightto silence" as laid down in a series of English decisions stated, interalia, that:-
"The accused stated that by his experience he thought it was •not proper to tell the Inspector that he had accepted the moneyas an advance fee for translations, because he was connectedwith the raid. This conduct of the accused-appellant is strange.He is a senior, experienced officer of Court and being theInterpreter Mudaliyar of a Magistrate's Court, he would haveknown that it was important for him to tell his version, if thetransaction was an innocent and lawful one, at the earliestopportunity, to a person in authority. If he did not want tomention this to Inspector Dharmapala, he had every opportunityto do so to the District Judge, who remanded him, if he couldhave told the Judge as follows, "He paid off a grudge againstCourt", he could then surely have told him that he accepted Rs.50 as an advance for the translation of the appeal into English."
"Then, he had every opportunity of informing the BriberyCommissioner of his version, but he had not done so."
"Though he stated that he wanted to tell his version of thistransaction to a public officer superior to Inspector Dharmapala,he has taken no steps to do so."
"It is very strange that it took him almost four and a half yearsafter the incident, to divulge his version for the first time inCourt."
The origin of the Judges' Rules in England for the guidance of policeofficers conducting investigations was in 1912. Since then theseRules have been amended from time to time. Judges' Rules whichcame into effect on January 27. 1964 (see Home Officer Circular No.89/1978) are not rules of law. In R v. May (1) Lord Goddardobserved:
"Judges'-Rules are not rules of law but rules of practice drawn upfor the guidance of police officers; and if a statement has beenmade in circumstances not in accordance with the Rules, in law thatstatement is not made inadmissible if it is a voluntary statement,although in its discretion the court can always refuse to admit it ifthe court thinks there has been a breach of the Rules."
In R v. Prager (2) the Court of Appeal reaffirmed that the essence ofadmissibility is that the statement was made voluntarily. This principleis expressly left untouched by the Rules. The "non-observance (of theRules) may. and at times does, lead to the exclusion of an allegedconfession; but ultimately all turns on the Judge's decision as towhether, breach or no breach, it has been shown to have been madevoluntarily."
Rules II and III deal with the administering of a caution at differentstages:
II. As soon as a police officer has evidence, which would affordreasonable grounds for suspecting that a person has committedan offence, he shall caution that person or cause him to becautioned before putting to him any questions, or furtherquestions, relating to that offence. The caution shall be in thefollowing terms:
"You are not obliged to say anything unless you wish to do so butwhat you say may be put into writing and given in evidence."
Ill(£>) purpose of preventing^or minimising harm of loss to some' prosecuted for an offence, he shall be cautioned in thefollowing terms:
(The caution here is similar to the caution in Rule II).
Ill(£>). It is only-in exceptional cases that questions relating to theoffence should be put to the accused person after he hasbeen charged or informed that he may be prosecuted. Suchquestions may be put where they are necessary for thepurpose of preventing or minimising harm or loose to someother person or to the public or for clearing up an ambiguity ina previous answer or statement.
(The caution here is similar to the caution in Rule II).
In Hall v. Regina (3) a defendant was informed by a police officer,who did not caution him, of an allegation made by a third personagainst him. The defendant remained silent. The Privy Councilobserved (per Lord Diplock at Page 324 ) that:
"It is a clear and widely-known principle of the common law in- Jamaica, as in England, that a person is entitled to refrain fromanswering a question put to him for the purpose of discoveringwhether he has committed a criminal offence. A fortiori, he is underno obligation to comment when he is informed that someone elsehas accused him of an offence. It may be that in very exceptionalcircumstances an inference may be drawn from a failure to give anexplanation or a disclaimer, but in their Lordships view silence alongon being informed by a police officer that someone else has madean accusation against him cannot give rise to an inference that theperson to whom this information is communicated accepts the truthof the accusation."
The appeal was allowed and the appellant's conviction quashed.The Privy Council affirmed the principles laid down in R v. Whitehead
and in R v. Keeling (5) and disapproved of R. v. Feigenbaum (6).
In R. v. Whitehead (supra) it was held that the fact that the prisonerwhen charged and cautioned made no denial of the charge could notbe corroboration.
In R. v. Keeling (supra) the appellant was convicted on a charge ofhaving unlawful carnal knowledge of a girl of 8 years. Having regard.toher age. the little girl was not sworn and according to the proviso tosection 38 of the Children and Young Persons Act, 1933. it wasessential as a matter of law that her evidence should be corroboratedby some other material evidence implicating the appellant.
The Judge directed the jury that there was in fact the necessarycorroboration to be found, if they thought proper to take that view, inthe conduct of the appellant from first to last when the accusation inquestion was made against him.
The conduct referred to consisted of the appellant's answers atthree stages in the proceedings preliminary to his trial. When he wascautioned that he was not bound to make any statement and told ofthe charge by the police officer who arrested him, he said, "I knowwhat you mean, but not likely. She plays with the Sawbridge girl".
After the warrant had been read over to him, he said. "I have gotyou-nothing to say".
At the hearing before the committing magistrate, the appellant wascautioned in the manner provided by statute, thus:
"Do you wish to say anything in answer to the charge? You arenot obliged to say anything unless you desire to do so but whateveryou say will be taken down in writing and may be given in evidence
upon your trial."
Having been cautioned by the magistrate, his answer was asfollows:
"I am not guilty. I am going to state nothing."
The trial judge drew the attention of the jury to the prisoner'sconduct. Each of the three stages was mentioned by the trial judgeand, in particular, he referred to the failure of the prisoner to make anyfurther statement before the magistrates, and his failure to go into thewitness-box at the trial.
It was held:
"That some at least of the conduct to which the judge referred inhis direction to the jury, and most obviously the conduct of theprisoner when addressed by the committing justices in not makingany denial of the charge beyond saying that he was not guilty.
cannot in point of law be regarded as affording corroborative'material for the jury. It is impossible to say whether that part, if any.of the statement which was admissible would have been sufficientto satisfy the jury. The judge told the jury that they could look at theprisoner's conduct from first to last in failing adequately to deny thecharge as affording the necessary corroboration. In our opinion thatconduct did not in point of law afford such material. Accordingly,the conviction cannot stand and must be quashed, and this appealallowed."
On the other side of the dividing line is the case of R. v. Feigenbaum(supra). The appellant was charged with having incited certain boys tosteal fodder. Evidence was given for the prosecution by the boys andalso by a police officer, who stated that he had called at theappellant's house, after the boys had been arrested for stealingfodder, and had told him that the boys giving their names, hadinformed the police that the appellant had sent them to steal thefodder, that they had stolen fodder for the appellant on otheroccasions, giving the dates and that the appellant had paid themspecified sums for the stolen fodder. The appellant had made no replyto this statement. It was held that the jury had been rightly directedthat they were entitled to consider whether the appellant's failure toreply was not in the circumstances some corroboration of the boys'evidence. (This decision was disapproved in Hall v. Regina (supra)).
In R v. Ryan (7) the Court of Criminal Appeal observed that —
"…. it is wrong to say to a jury, 'Because the accused exercisedwhat is undoubtedly his right, the privilege of remaining silent, youmay draw an inference of guilt'; it is quite a different matter to say'This accused, as he was entitled to do. has not advanced at anyearlier stage the explanation that he has offered to you today; you.the jury, may take into account when you are assessing the weightthat you think right to attribute to the explanation ".
In R v. Sullivan (8) the accused, who was convicted of smugglingwatches from Switzerland, had refused to answer questions asked bythe Customs Officers. During the course of his summing up the judgesaid to the jury;
"Of course, bear in mind that he was fully entitled to refuse toanswer questions, he has an absolute right to do just that, and it isnot to be held against him that he did that. But you might well thinkthat if a man is innocent he would be anxious to answer questions.Now, members of the Jury, that is really what it amounts to."
The Court of Appeal said with reference to this (per Salmon. L. J. at105):
"It seems pretty plain that all the members of that jury, if they hadany common sense at all, must have been saying to themselves
precisely what the learned judge said to them. The appellant wasnot obliged to answer, but how odd, if he was innocent, that heshould not have been anxious to tell the Customs Officers why hehad been to Geneva, whether he had put the watches in the bag,and so on."
Then, after referring to the authorities, the judgment went on to saythat sometimes comment on the accused's silence was unfair but thatthere was no unfairness in this case. It then continued :
"The line dividing what may be said and what may not be said is avery fine one, and it is perhaps doubtful whether in a case like thepresent it would be even perceptible to the members of any ordinaryjury."
The court held that they were compelled, in the existing state of thelaw, to hold that the judge's comment was a misdirection, but theydismissed the appeal under the proviso to section 4(1) of the CriminalAppeal Act 1907 (c. 23) on the ground that "no possible miscarriageof justice occurred".
In R v. Gilbert (9) the appellant was charged with the murder of oneTaylor. At the trial for the first time, when admitting that he had 'stabbed his victim, he said he had done so, inter alia, in self defence.The trial judge read the appellant's statement to the police to the juryand remarked that the appellant was perfectly entitled to remain silent,but that he had made no mention of self-defence in it. However, theCourt of Appeal, consisting of Lord Dilhorne. Lord Scarman' and Jupp.
J., held that as the law stands no comment is permissible that impliesthat the jury may draw an inference adverse to the accused from hisexercise of his "right to silence", disapproving of the decision to thecontrary in R v. Ryan (supra). Inspite of ’the misdirection by the trialjudge, the Court of Appeal held that, nevertheless, as no miscarriageof justice had actually occurred, the Court would, in its discretion,apply the proviso to section 2 (1) of the Criminal Appeal Act 1968,and dismissed the appeal.
The court indicated however, that the law is unsatisfactory andhinted that it was open to review in the House of Lords. If the Housewere to say that such comments were permissible, the Judges' Ruleswould have to be altered, particularly as to the wording of the caution.
In England under the Criminal Justice Act 1967, s. 11(1)-
'"On a trial on indictment the defendant shall not without the leaveof court adduce evidence in support of an alibi unless, before theend of the prescribed period, he gives notice of particulars of thealibi."
The 'prescribed period' means the period of seven days from theend of the proceedings before the examining justices.
In Ft v. Lewis (10) the Court of Appeal held that a judge should not inhis summing-up comment unfavourably on the fact that thedefendant, after arrest and caution by the police, failed to say that hehad an alibi, since under section 1 1 (6) of the Criminal Justice Act1967 the time at which notice of alibi must be given has beenprescribed by the legislature. The court, however, held that despitethe misdirection there was no miscarriage of justice and applied theproviso to section 2(1) of the Criminal Appeal Act 1968. The Courtdismissed the appeal and the sentence was reduced.
The right to silence is a right against self-incrimination. This doctrineis an aspect of the rules of procedure and evidence which, in theirapplication to criminal proceedings, are based on a compromisebetween the security of the community and the rights of the accused.A traditional feature of the "adversary" (as opposed to an'inquisitorial') system of criminal jurisprudence is the privilege againstself-incrimination. The origins of the doctrine against self-incriminationin the English Common Law are discernible in the pronouncement ofthe later Stuart Judges which echoed the revulsion of the communityagainst the practice of the Court of Star Chamber of compellingpersons brought before it to testify against themselves on oath. Theuse of the rack and other forms of torture to extort confessions orother incriminating statements from persons accused of crimecontributed to this reaction. This privilege is also sacrosanct in theconstitutional laws of the United States of America and findsexpression in the Fifth Amendment to the American Constitution.
The condition of contemporary English law prompted far-reachingproposals by the Criminal Law Revision Committee in its EleventhReport (June 1972). They made the following observations andrecommendations: –
"28. We propose to restrict greatly the so-called 'right of silence'enjoyed by suspects when interrogated by the police or byanyone charged with the duty of investigating offences orcharging offenders. By the right of silence in this connectionwe mean the rule that, if the suspect, when being interrogatedomits to mention some fact which would exculpate him, butkeeps, this back till the trial, the court or jury may not infer thathis evidence on this issue at the trial is untrue. Under ourproposal, it will be permissible to draw this inference if thecircumstances justify it. The suspect will have the ‘right ofsilence' in the sense that it is no offence to refuse to answerquestions or tell his story when interrogated; but if he choosesto exercise this right, he will risk having an adverse inferencedrawn against him at his trial.
30. In our opinion it is wrong that it should not be permissible forthe jury or magistrates' court to draw whatever inferences arereasonable from the failure of the accused, when interrogatedto mention a defence which he puts forward at his trial. Toforbid it seems to us to be contrary to common sense and.without helping the innocent, to give an unnecessaryadvantage to the guilty. Hardened criminals often takeadvantage of the present rule to refuse to answer anyquestions at all. and this may greatly hamper the police andeven bring their investigations to a halt. Therefore the abolitionof the restriction would help justice."
The Report stated that Sir Norman Skelhorn (one of the members ofthe Committee) had argued for an amendment of the law for thesereasons in his address "Crime and Punishment of Crime: Investigationof Offences and Trial of Accused Persons" delivered at theCommonwealth and Empire Law Conference in Sydney in. 1965. Thepresent restriction on judicial comment was also strongly criticized bySalmon. L.J.. in giving the judgment of the Court of Appeal in R. v.Sullivan (supra).
The Report added in paragraph thirty-one
"31. So far as we can see, there are only two possible argumentsfor preserving the present rule-
Some lawyers seem to think that it is somehow wrong inprinciple that a criminal should be under any kind of pressureto reveal his case before his trial. The reason seems to bethat it is thought to be repugnant-or, perhaps rather,'unfair' -that a person should be obliged to choose betweentelling a lie and incriminating himself. Whatever the reason,this is a matter of opinion and we disagree. There seems tous nothing wrong in principle in allowing an adverseinference to be drawn against a person at his trial if hedelays mentioning his defence till the trial and shows nogood reason for the delay. As to the argument that it is'unfair' to put pressure on a suspect in this way. what wesaid above about fairness in criminal trials generally applies.Bentham's famous comment (Treatise of Evidence, p. 241)on the rule that suspects could not be judicially interrogatedseems to us to apply strongly to the 'right of silence' in thecase under discussion. He wrote-
'lf all criminals of every class had assembled, and framed asystem after their own wishes, is not this rule the very first whichthey would have established for their security? Innocence nevertakes advantage of it. Innocence claims the right of speaking, asguilt invokes the privilege of silence.'
It has been argued that the suggested change wouldendanger the innocent because it would enable the police,when giving evidence, to suppress the fact that theaccused did mention to them the story which he told incourt. But we reject this argument for two reasons. First,we do not regard this possible danger as a good enoughreason for leaving the law as it now is Second, it is alreadypermissible to draw an adverse inference from the fact thata suspect told a lie to the police or tried to run away: and(as mentioned above) even silence can be taken intoaccount in assessing the value of the evidence given by theaccused in court. In neither of these cases is it considered afatal objection that the police might say falsely that theaccused told the lie or that he failed to tell his story.
32. We propose that the law should be amended so that, if theaccused has failed, when being interrogated by anyonecharged with the duty of investigating offences or chargingoffenders, to mention a fact which he aftervyards relies on atthe committal proceedings or the trial, the court or jury maydraw such inferences as appear proper in determining thequestion before them. The fact would have to be one_which theaccused could reasonably have been expected to mention atthe time."
The Committee also recommended (in para. 40) that in any casewhere an adverse inference may properly be drawn from theaccused's silence, it will be permissible to treat his silence ascorroboration of the evidence against him for any purpose for whichcorroboration is material. Since the caution embodied in the Judges'Rules was inconsistent with this recommendation, it was proposedThat the Judges' Rules should be-abolished., to be replaced byadministrative directions.
It would appear that many of the decisions of the Committee hadnot been unanimous and there have been differences of opinion anddissents from some of the members. There was also strong criticismof the recommendations from other quarters. We were shown acritique of the Report by Sir Brian MacKonna in the 1972 Criminal LawReview, 605, where most of the grounds for the recommendationshave been critically examined and refuted. For the purpose of thiscase, I shall draw attention to one or two relevant observations madeby Sir Brian.
Referring to the treatment of suspects by the Committee as fallinginto only two classes, the guilty and the wholly innocent, which isundoubtedly too simplistic, Sir Brian says at page 614-
"That useful paper 'The Jury at Work' suggests that mostsuspects are in some way implicated in the offence underinvestigation, either through their presence at the scene of thecrime, or through their commission of the actus reus, the onlyquestion being about the state of their mind, intention, knowledgeand the like, or, in cases of violence, self-defence. All these wouldhave something to explain away, and they might not all feelconfident of their ability, without legal assistance, to select andstate all the facts on which their counsel might afterwards wish torely in their defence. Questioning by the police will not always belimited to an inquiry about the facts to be relied on by the suspect inhis defence. It may take the form of an unfriendly cross-examinationin the course of which even an innocent man might contradicthimself or be induced to say something which he might afterwardswish to retract. It will be conducted in the absence of any friend oradviser of the suspect who might be able to support him if later heshould wish to challenge the police account of the interview. I donot find it far-fetched to suppose that even an innocent man mightwish to reserve his defence until his trial, or at least until he had anopportulity of being legally advised, and to postpone hiscross-examination until he would be protected by an impartialjudge."
The following observations by Sir Brian regarding the Committee'sassumption that police investigations are always above board mayalso have some bearing on this matter. After referring to a statementby Winn, L.J., in Nathan's case (1 1), to the effect that the police cannow be trusted and that they "behave with complete fairness towardsthose who come into their hands or from whom they are seekinginformation". Sir Brian states at page 617:
"The other view is expressed by three dissenting members of theCommittee in paragraph 52 of the Report. They speak of thepractice of questioning suspects in custody as being fraught withdangers'. They mention 'the danger of the use of bullying and evenbrutal methods by the police in order to obtain confessions' andcontinue-
'As with the use of violence, it is impossible to assess theextent to which the police at present commit perjury, but there isa widespread impression, not only among criminals, that in toughareas a police officer who is certain that he has got the right manwill invent some oral admission (colloquially known as a ’verbal )to clinch the case'.
They cite this passage from the 1962 Report of the RoyalCommission on the Police:
'There was a body of evidence, too substantial to disregard,which in effect accused the police of stooping to the use ofundesirable means of obtaining statements and of occasionallygiving perjured evidence in a court of law.'
They refer to the use of oppressive methods:
'It is demonstrated from time to time that even ordinaryquestioning can produce false confessions, but the risk is greatlyincreased if oppressive methods are used.'
They criticize the present methods of recording statements:
'One may not even be sure that the officer understood what thesuspect said, or that the suspect understood the written
statement when he read it through or had it read to himThe
possibilities of error are multiplied if, as .often happens, thestatement is not reduced to writing at the time and signed by thesuspect'.".'
In 1982, Professor G. L. Peiris in an'article in the journal LAWASIAentitled "An accused person's privilege against self-incrimination",made a comparative analysis of the English, New Zealand and SouthAsian Legal systems and brought the wealth of his learning andknowledge in dealing with this same question. In Part III of his article,he sums up the position with his mature observations:
"The predominant criticism of the privilege is that it seriouslyimpedes law enforcement and is, therefore detrimental to thewell-being of the community. It has been argued that the obstaclesit imposes in regard to the determination of guilt may proveinsuperable. The Supreme Court of Canada has observed:
'We have not yet arrived at the point that one accused of crimehas so many and so high rights that the people have none. Theadministration of our law is not a game in which the cleverer andmore astute is to win, but a serious proceeding by people inearnest to discover the actual facts for the sake of public safety. "
The most trenchant denigration of the privilege has been made byBentham who derisively declared that the privilege rested on twopivots-'the old woman's reason' and 'the fox-hunter's reason.' Theessence of the first reason is the harshness of the consequencesattending on self-incrimination. The second reason, according toBentham, purports to introduce into the law a spurious notion offairness.
 2 SriL.R.*—
In the Commonwealth as in the United States of America, there is agrowing body of informed opinion that the privilege againstself-incrimination confers on the accused too great a degree ofprotection at the expense of the community. It is submitted, however,that in the context of investigation of crime by the police in England,New Zealand and South Asian jurisdictions, legal recognition of theprivilege is supportable cogently on several grounds:-
(a) But for the existence of the privilege, persons who are subjectedto police interrogation may be confronted with overwhelmingdifficulties repugnant to accepted notions of equity and fairdealing. If a deponent were compelled to answer questionstruthfully and to provide incriminating evidence against himself,the effectiveness of his defence in court may be greatlyimperilled.
The use of the fruits of self-incrimination has a demoralisingeffect, at least potentially, on the prosecution. A profound truthis reflected in Wigmore's assertion that 'Any system ofadministration which permits the prosecution to trust habituallyto compulsory self-disclosure as a source of proof must itselfsuffer thereby. The inclination develops to rely mainly on suchevidence and to be satisfied with an incomplete investigation ofthe other sources. This danger is all the more real in the settingof the South Asian legal systems. The Privy Council, dealingwith considerations of policy which militate against thereception in evidence of incriminating statements made topolice officers, has stated:
'Police authority itself, however carefully controlled, carries amenace to those brought suddenly under its shadow; and thelaw recognizes and provides against the danger of such personsmaking incriminating statements with the intention of placatingauthority.'
Removal of the privilege is a potent disincentive to willigness onthe part of persons to participate in an inquiry conducted by thepolice into the commission of an offence. The privilege may beseen as a means of securing for the police the fullest possibleinformation for the successful conduct of the inquiry.
SCRupasinghe v. Attorney-General (Colin-Thomb, J.j347
* — —
Persons under interrogation by the police are often susceptibleto direct coercion and to insidious pressure. The reminder bythe Supreme Court of the United States that the police mayaccomplish their objectives 'not only with ropes and a rubberhose, not only by relay questioning persistently, insistently,subjugating a tired mind, but by subtler devices' is of particularrelevance in South Asian countries where popular attitudes to.police authority still contain a substantial element of diffidenceand apprehensio.n. Consequently, survival of the privilege hasthe beneficial result that inhibition is minimized, if noteliminated, and candour encouraged, so that the reliability ofstatements made to the police during an investigation isenhanced.
Recognition of the privilege contributes to the preservation of ajust equilibrium between the individual and the State in thesphere of detection and punishment of crime. One implicationof the privilege is to require the Government 'in its contact withthe individual to shoulder the entire load' and 'to leave theindividual alone until good cause is shown for disturbing him.'This ensures that the resources of the State are not exploited ina manner intolerably oppressive to the individual.
The privilege against self-incrimination provides a palliativeagainst the enforcement of harsh law and the application ofunjust procedures. This is responsible in large measure for the
. popularity which the privilege enjoys.
• TheiRoyafCommission on Criminal Procedure in England and Wales(1961-) .in its Report had adopted the traditional attitude to the scopeof the privilege and declined to recommend any change of the existinglaw as to the consequence of silence during the investigative stageand at the trial. The Commission attached considerable weight to theargument that the right of silence formed a vital issue in the wholeconstitutional relationship in a free society between the individual andthe State. The Commission no doubt took into account the criticism ofthe recommendations of the Criminal Law Revision Committee byprofessional and law organization.
The Police and Criminal Evidence Act 1984 gives a suspect in policecustody a statutory right to have someone informed of his arrest andof his place of detention and the right to consult a solicitor privately if
he so requests. There are. however, some exceptions. There is a draftCode of Practice formulated by the Home Secretary in terms of theAct which recognise the right to silence. Paragraph 3 of the Coderequires the officer authorising detention to notify the suspect of theabove right and also of his right to consult the Code of Practice. Underparagraph 6, if the suspect is unable to nominate a solicitor, he must’be advised of the availability of duty solicitors. It also statesthat-subject to certain exceptions-a suspect who asks for legaladvice may not be interviewed until he has received such advice andthat he can have his solicitor present when interviewed. The Code ofPractice also continues the old caution rule although branches of theCode are rendered immune from criminal and civil proceedings. In allprobability a court could in its discretion exclude evidence which hadbeen unfairly obtained even in this regard.
We were also referred to an informative article by Professor MongHoong Yoo of the University of Singapore entitled 'Diminishing theRight to Silence: the Singapore Experience" appearing in 1983Criminal Law Review 89. This article tries to evaluate the Singaporeanexperience during the five-year period following the passing of theCriminal Procedure Code (Amendment) Act No. 10 of 1976. Thisamending Act embodied almost in toto and even the identicalphraseology and language of the recommendations of the CriminalLaw Revision Committee's Eleventh Report on Evidence (1972). Priorto that, the legal position both in Singapore and England appears tohave been almost identical, except for the fact that jury trials did notobtain in Singapore. The article deals with 'the right to silence" in itstwo aspects-out of court silence and in-court silence-which are dealtwith separately by the writer. From an analysis of statistics, the writerconcluded that accused persons rarely remained silent out of courteven before the amendments and that the percentage of cases wherethe accused testified in court was slightly more in the pre-amendmentperiod than in the post-amendment period. The writer concludes asfollows at page 100:
"The two studies described above indicate that the amendmentshave not materially assisted the Singapore police force andprosecuting officers in their combat against crime. The tentativeresults suggest that the practical value of the right to silence in courthas hardly been effected by the amendment. Hence those whoregard the right to silence as 'golden' can rest assured that theamendments have done little to tarnish its sheen."
In Sri Lanka the procedure regarding the investigation of offences byany police officer or inquirer is laid down in Chapter XI, Part V, of theCode of Criminal Procedure Act, No. 1 5 of 1979. This Act repealedChapters II and IV of the Administration of Justice Law, No. 44 of1973. Chapter II of the Administration of Justice Law, section 55 to92, dealt with Criminal Procedure. Section 70(4) stated:
S.70(4). "It shall be the duty of a police officer before examininga person to inform him that he is bound to answer truly all questionsrelating to such case put to such person by him, except suchquestions as have a tendency to expose him to a criminal charge orto a penalty or forfeiture; and such person shall be bound to answertruly all questions relating to such case put to him by such officerother than the aforesaid questions."
Section 70 of the Administration of Justice Law has now beenreplaced by section 1 10 of the Code of Criminal Procedure Act, No.15 of 1979, which deals with the examination of witnesses by anypolice officer or inquirer. Section 110(2) states as follows:
S. 110(2). "Such person shall be bound to answer truly allquestions relating to such case put to him by such officer or inquirerother than questions which would have a tendency to expose him toa criminal charge or to a penalty or forfeiture."
Section 110(2) is almost identical with section 122(2) of theformer Criminal Procedure Code (Cap. 16). The only change in thewording is that "or inquirer" has been introduced in s. 110(2) after thewords "such (police) officer." Section 457 (2) of the Code of CriminalProcedure Act, No. 15 of 1979, states:
S. 457(2) "Any appeal, application, trial, inquiry or investigationpending in any court on the day immediately preceding theappointed date may be disposed of, continued, held, or made as thecase may be as nearly as may be practical under the provisions ofthis Code."
In the instant case the alleged offences were committed on 2ndDecember, 1975. The trial commenced on 7.4.1980. The trial in this•case was pending when the Code of Criminal Procedure Act, No. 15of 1979 was certified on 8th March, 1979. Therefore the applicablelaw at this stage of the case is section 110(2) of the Code of CriminalProcedure Act. No. 15 of 1979.
In Sri Lanka, unlike in England, the right to silence is restricted onlyto questions which would have a tendency to expose any person to acriminal charge or to a penalty or forfeiture. This has been the law inSri Lanka for a considerable period of time. Under section 1 10(1) thepolice are invested with powers during the investigations of offencesof examining "orally any person supposed to be acquainted with thefacts and circumstances of the case." In Sri Lanka, unlike in England, areciprocal obligation is imposed on the person interrelated, in thatsuch person is declared to be "bound to answer truly all questionsrelating to such case put to him by a police officer or inquirer otherthan questions which have a tendency to expose him. to a criminalcharge or to a penalty or forfeiture.". In Sri Lanka the right to silencehas been and is governed by statute and such questions are notdetermined by the English Common Law and the English decisionspertaining thereto.
The recognition of a general duty under our law to answer questionsput by the police during the investigation of a crime represents a sharpcontrast with English law which, as a rule, declines to impose anobligation to answer out-of-court questions of the police.
The refusal to answer a question which a public servant is legallyauthorised to ask constitutes an offence under section 177 of the PenalCode. In Van Culenberg v. Caffoor (12) the appellant was chargedunder section 1 77 of the Penal Code, that being legally bound underthe provisions of section 1 22(2) of the Criminal Procedure Code toanswer truly the questions put to him by a Police Officer, relating to anoffence, he refused to answer them on the ground that they wouldhave a tendency to expose him to a criminal charge. It was held that inorder to entitle a person to the privilege of silence under suchcircumstances, the Court must see that there is a reasonable groundto apprehend danger to such person from his being compelled toanswer. See also Van Culenberg v. Sellamuttu (13) and Deheragodav. Alwis (14). The danger to be apprehended must be real and notimaginary.
The distinction between the law in Sri Lanka and the EnglishCommon Law relating to the right to silence may be summarised asfollows:
(a) A person who is interrogated under section 110 of the Code ofCriminal Procedure Act, No. 15 of 1979, is under statutorycompulsion to answer all relevant questions other than those
.which have an incriminating character. In Sri Lanka the right tosilence does not extend to an exculpatory statement. Accordingto the Oxford Dictionary an "exculpatory" statement is astatement which clears a person from a charge. English lawrecognizes no duty to answer questions put by the police.
There is m provision in Sri Lanka like the Judges' Rules inEngland for the administrating of a caution to the accused whilehe is under interrogation by the police;
Under section 110(3) a statement made by any person to apolice officer in the course of any investigation may be used forthe purpose of impeachment of his credibility and not for thepurpose of corroborating his testimony in Court. In England astatement made by the accused to a police officer after he hasbeen cautioned is admissible as substantive evidence againsthim.
There is a statutory immunity in our law given to a suspect to declineto answer any incriminating questions put by the police. However, if hedoes make an incriminating statement in answer to questions by thepolice that statement shall not be proved against him at his trial assection 25 of the Evidence Ordinance expressly forbids it subject tothe proviso in section 27 of the Evidence Ordinance.
At the trial in this case the appellant made a dock statement. Hisdefence was that the Rs. 50 given him by Avis Singho was an advancefee for translating his appeal brief into English. He was authorised bylaw to charge a fee for translations.
The defence if believed exculpated the appellant completely underthe proviso to section 19(C) of the Bribery Act which states:
"that it shall not be an offence for a State Officer to solicit or
accept a gratification which he is authorised by the law or the terms
of his employment to receive."
In his dock statement the appellant gave an explanation why he didnot state to a person in authority at the earliest opportunity that themoney was an advance fee for translating an appeal brief.
(1986) 2 Sri L.R.
He stated that he thought it was not proper to state this to InspectorDharmapala as he was an officer who was connected with the raidand because police officers try to establish a case somehow or other.The appellant did not state that he expressly invoked the right tosilence on the ground that his answers would expose him to a criminalcharge.
There is also no precise evidence whether a question was asked byInspector Dharmapala which would have given the appellant thereasonable apprehension that by answering the question it would havea tendency to expose him to a criminal charge. However, giving theappellant the benefit of the doubt on this matter he has yet to explainwhy he did not tell the Judge at the earliest opportunity, when taken tohis residence, that the money he accepted was an advance fee fortranslating an appeal brief. After all on his own testimony, if he hadopportunity and the time to tell the Judge: "He (Avis Singho) paid off agrudge against court" he could quite easily and briefly have told theJudge that the money was for translation of a brief.
A statement from the dock constitutes substantive evidence despitethe lack of oath or affirmation and the absence of cross examinationwhich effects the value of the statement: Sugathadasa v. TheRepublic of Sri Lanka (15), The Queen v. Kularatne (16).
In order to assess the probative value of the dock statement in theinstant case it was necessary for the Court of Appeal to examine theinfirmities in that statement. In the exceptional circumstances of thiscase the Court of Appeal correctly took into account the failure of theappellant to mention the exculpatory statement in his defence at theearliest opportunity. The Court of Appeal correctly had not treated theappellant's silence at the investigative stage as corroboration of theevidence against him nor had it drawn an inference of guilt from hissilence. The Court of Appeal had taken the appellant's silence intoconsideration in order to test the weight to be attached to his dockstatement, which it was entitled to do in the circumstances of thiscase.
The accused under the Common Law systems has the assurancenot merely that he is entitled to remain silent but that the exercise ofthis right will cause him no peril whatever. This consideration accountslargely for the hesitation shown by English Judges to permit anyunfavourable inference from the silence of the accused at the time he
is charged. The law in Sri Lanka is not a creature of the EnglishCommon Law but has received statutory expression in section 110 ofthe Code of Criminal Procedure Act which casts a duty on a person toanswer truly all questions put to him by a police officer investigating anoffence, except questions which would expose him to a criminalcharge. The refusal to answer such questions may form the basis of acharge under section 177 of the Penal Code. In exceptionalcircumstances a judge should not be inflexibly debarred fromcommenting on the fact that the defence has not been divulged on aprevious occasion, but propriety of the comment depends on thenature of the information that is withheld. In the circumstances-of thiscase I hold that the Court of Appeal was justified in commenting onthe appellant's failure to state his defence at the earliest opportunity atthe pre-trial stage, and that there was no material misdirection as tothe right of silence of the appellant.
The next submission of learned President's Counsel was that theCourt of Appeal had misdirected itself on a vital point regarding thecontents of the reply by the appellant to the question by Bissomenika"Sir, will my elder brother go to jail?"
Learned President's Counsel submitted that since the evidence ofAvis Singho had been totally rejected by the Court of Appeal on thefirst charge the evidence of Bissomenika as to what the appellant toldher when she questioned him about her brother's case assumes greatimportance as it is the only independent item of evidence against theappellant.
The impugned passage in the judgment of the Court of Appealreads:
"Then a female who had come with the complainant asked himwhether her elder brother would go to jail and he replied: 'He will goto jail in today's case. Then it struck me that there was an earliercase. Thereafter, I told her that I would save him with a fine’."
Learned President's Counsel submitted that this was a seriousmisstatement of fact as the appellant had said in his dock statement:
"He will escape with a fine. I did not tell her that I would save himwith a fine".
It should be noted, however, that the sentence followingimmediately after the impugned passage in the judgment in page 26states:
"He said that he did not tell her that he would save her elderbrother with a fine."
At page 23 of the judgment the dock statement of the appellant hasbeen correctly quoted:
"Then I told her he will escape with a fine."
The evidence of Bissomenika has been accepted both by the HighCourt and the Court of Appeal. Bissomenika stated that when sheasked the appellant :
"Sir, will my elder brother go to jail?" He replied: "he would savehis brother with a fine without sending him to jail."
Taking into consideration all the circumstances connected with theconversation between Bissomenika and the appellant I hold that noprejudice was caused to the appellant.
The final submission of learned President's Counsel was that therewas a misdirection by the Court of Appeal in acting on the findings offact of the High Court Judge (who failed to separate the evidencerelating to the two charges and to consider the two chargesseparately and whose judgement was not set aside on Charge 1) in thereview by the Court of Appeal of the evidence against the appellant onCharge 2, without an independent review.
Section 19 of the original Bribery Act (Cap. 26) did not havesubsection (c). It was introduced by section 13 of the Bribery(Amendment) Act No. 40 of 1958. The new amendment reads:
"Who, being a public servant, solicits or accepts any gratification,which he is not authorised by law or the terms of his employment toreceive, shall be guilty of an offence etc."
In Mohamed Auf v. The Queen (17) it was held (per H. N. G.Fernando, C.J.) that where a public servant is charged under section19(c) of the Bribery Act, with having accepted a gratification which hewas not authorized by law or the terms of his employment to receive,the burden of proving that the gratification was unauthorized lies onthe prosecution.
In consequence of this judgment section 19 of the Bribery Act wasfurther amended by section 8 of the Bribery (Amendment) Law, No.38 of 1974 as follows:-
by the substitution, for paragraph (c) of that section, of thefollowing paragraph
"(c) who, being a state officer, solicits or accepts anygratification,";
by the substitution for the full stop at the end of the section, of acolon; and
by the addition, at the end of that section, of the followingproviso:-
"Provided, however, that it shall not be an offence for a stateofficer to solicit or accept any gratification which he isauthorised by law or the terms of his employment to receive."
A "gratification" under section 90 of the principal enactmentincludes money. The relevant portion of section 105 of the EvidenceOrdinance states:
"When a person is accused of any offence, the burden of proving
the existence of circumstances bringing the case within any
special exception or proviso contained in any other part of the(Penal) Code, or in any law defining the offence. is upon him, andthe court shall presume the absence of such circumstances."
The effect of the new proviso to section 19 of the Bribery Act, is toshift the burden to the accused to prove that any gratification receivedby him was authorised by law or the terms of his employment.
The Court of Appeal in its judgment in the instant case has stated:
"In respect of Count 2, it was conceded by Learned Counsel forthe accused-appellant that the prosecution has proved beyondreasonable doubt that the accused-appellant was a State Officerand that he had accepted a gratification of Rs. 50. and that theburden was on the accused-appellant to prove on a balance ofprobablity that he accepted this gratification which he wasauthorised by law or the terms of his employment to receive."
The Court of Appeal and the High Court Judge had carefullyscrutinized the dock statement of the appellant which was the onlyevidence elicited by him at his trial. For the reasons stated in theseparate judgments the version given in the dock statement was heldto be false. I agree with this finding. The result was that the appellanthad failed to discharge the burden placed on him by the proviso tosection 19.
For the reasons stated in this judgment the appeal is dismissed. Weaffirm the conviction of the accused-appellant under Count 2 of theindictment by the Court of Appeal and we also affirm the sentenceimposed on the accused-appellant by the Court of Appeal.
. WANASUNDERA, J. – I agree.
RANASINGHE, J. – I agree.
TAMBIAH, J. – I agree.
L. H. DE ALWIS, J. – I agree.