SOERTSZ J.—Beddewela v. Albert.
1940Present: Soertsz J..
BEDDEWELA v. ALBERT.
617—M. Q. Galle, 25,891.
Evidence—Decoy—Evidence does not require corroboration—Different lootingfrom accomplice.
A decoy is on a different footing from an accomplice so far as the rule ofpractice regarding corroboration is concerned, although the evidence ofa decoy should be probed and examined with great care.
^^PPEAL from a conviction by the Magistrate of Galle.
Nihal Gunesekera, C.C., for complainant, appellant.
No appearance for accused, respondent.
Cur. adv. wM.
October 24, 1940. Soertsz. J.—
This is an appeal, sanctioned by the Attorney-General, against an ordermade by the Magistrate, acquitting the accused-respondent of threecharges made against him for receiving bets, other than taxable bets, in .contravention of sub-section (3) of section 3 of the Betting on Horse-racingOrdinance.
The facts are these : —A race meeting for horses was arranged to takeplace at Nuwara Eliya on March 30, 1940. Silva, the principal witness inthis case, went to the Assistant Superintendent of Police, Galle, at about10 o’clock that morning, and informed him that the accused was acceptingbets on the races due to be run, and he showed the Assistant Superintendentof Police some tickets issued to him to attest certain bets he had made.Thereupon, this police officer wrote out a chit (P 11) in duplicate in theseterms. “Re. 1 Place, Keen Sight, Golden Baby, Saidan” and gave it toSilva with a one-rupee currency note, after taking down in writing the
SOERTSZ J.—Beddewela v. Albert.
serial number of that note, and requested him to go to the accused and!make the bet indicated. Silva went accompanied by one Richard.When they reached the accused’s place of business, and sought to makethe bet, the accused said that the races had already started, and he wasnot prepared to take “ all-on ” bets at that stage. Silva then sentRichard off to inform the police that the accused would not take the betindicated, and that he was, therefore, taking “ trebles ”, that is to say,selecting three horses to win three nominated races. P 7, P 7a, and P 7b .are the tickets which Silva says, were issued to him by the accused inrespect of the three “ trebles ” selected by him. A short time later, thepolice party were seen approaching the place where the accused wastaking bets, and the accused thought it was time to run a race of his own,and started off at a quick pace, through a passage, taking his books withhim. The policemen gave chase, and among them there appears to havebeen one fleetor of foot than the accused, a constable named Raffial, andhe outstripped the accused, and put an end to the race.
The accused was searched by P. C. Jayasinghe in the presence of theAssistant Superintendent of Police, and Sub-Inspector Beddewela, andhe was found to be carrying a fifty-cents “ treble ” book P 1, a ten-cents" treble ” book P 2, Rs. 16.61 including the one-rupee note P 5 given to Silvaby the Assistant Superintendent. The accused was taken to the PoliceStation. Silva followed, and reached the station a little later. Heproduced the three “ treble ” tickets issued to him, and when book P 2 wasexamined, it was found that those tickets had been issued out of thatbook.
I should have thought that if the evidence of Silva and of the policeofficers were accepted, there could hardly be a more flagrant case of aman taken in the act of receiving non-taxable bets. And yet, the learnedMagistrate although he accepts all this evidence, finds the accused notguilty.
There is discernible in the judgment of the Magistrate an undertone ofreproach of this Court for this startling result. He says “ on the evidence,
I am satisfied that the raid was duly carried out and the accused arrestedwith the production referred to …. If someone has witnessedthe actual bet taken by the witness Silva with the accused, and hadcorroborated him in that respect, then no doubt the charge would beestablished. Without that in the face of the several Supreme Courtdecisions I am unable to hold there is any corroborative evidence of thebet by Silva. It is not that I disbelieve Silva
It is obvious that the Magistrate has misdirected himself both on thelaw and on the facts. Even if it is assumed that Silva was an accomplice,the iule of law is quite clear that a conviction may be entered upon.hisevidence alone. Section 133 of the Evidence Ordinance enacts that “ Anaccomplice shall be a competent witness against an accused person, anda conviction is not illegal merely because it proceeds upon the uncorro-borated testimony of an accomplice ”, but it has become a rule of practicethat in a trial by Judge and jury, the Judge should warn the jury that it isdangerous to convict on such evidence, and he may even advise them notto do so, but if despite the caution and the advice the jury accept theevidence of the accomplice because they are impressed by it, and convict
SOERTSZ J.—Beddewela v. Albert.
the accused, the conviction is good. Likewise, when a Judge is performingthe functions of both Judge and jury, he must so caution and advisehimself in reality, not merely by way of formal compliance with animperative rule of practice, and if after doing that he is able to say“ although I realize that this witness is an accomplice, and I should,ordinarily, hesitate to convict on the evidence of an accomplice, I believethe accomplice before me in this case ”, then he may and, indeed, he mustconvict. In the event of such a finding by the jury or by the Judge,–ifjthe evidence of the accomplice supports the finding, I do not think anAppeal Court will disturb it.
I have so far dealt with this case on the supposition that Silva was anaccomplice. But, in fact, he is not. He belongs to the class whichEnglish cases describe as “ informers ”, that is to say “ persons who havejoined in or even provoked the crime as police spies.” (Phipson, 6th. ed. 486.)There is a long line of English cases in which it has been laid down thatthe rule relating to the corroboration of accomplices does not apply toinformers. Roscoe sums up the law on this point as follows : —•“ Agents,provocateurs, spies, informers, detectives, &c., are not accomplices.Such persons erhployed in entrapping criminals ‘ are entirely distinguishedin fact and in principle from accomplices, and I do not see that a personso employed deserves to be blamed if he instigates offences no furtherthan by pretending to concur with the perpetrators This decisionwas followed in Bickly1 and in several other cases. LordAlverstone C. J. said, * I do not like police traps any more than doesanybody else ; but at the same time there are some offences the commissionof which cannot be found out in any other way’ ”.(Roscoe Criminal .
Evidence, 15th ed. 156.) That is the view taken in Indian cases too.
. Ameer Ali in his treatise on the Law oj Evidence says, on the authority ofjudicial decisions referred to by him, “ Though a great degree of disfavourmay attach to a person for the part he has acted as informer, yet his caseis not treated as that of an accomplice ” (5th ed. p. 829).
In view of this, strictly speaking, it would appear that it would belegitimate for a Judge sitting with a jury to put before them the evidenceof those who come under the class “ informs ” without the caution andadvice he is required by the rule of practice to administer when dealingwith thie evidence of accomplices, and that, likewise, it would be legitimatefor a Judge sitting alone to act upon the evidence of a witness belongingto the class “ informers ” without pausing to caution himself as he mustdo in the case of accomplices. Best in his treatise on Evidence (12th ed.)p. 161 suggests that the true reason for the differentiation is that “theobjection to the evidence of accomplices arises from the obvious interestwhich they have to save themselves from punishment by the convictionof the accused against whom they appear ”. If their evidence fails tosecure the conviction of their associates in the crime, they themselveswere convicted on their own plea and suffered punishment according tothe old law of approvement. In the modern law, although the accompliceis not in as great a plight as that, he “ is not assured of his pardon, but giveshis evidence in vinculis, in custody ; and it depends on the title he hasfrom his behaviour whether he shall be pardoned or executed ”. Rex v.
* 2 cv. A. B. S3.
SOERTSZ J.—Beddewela v. Albert.
Rudd.1 In regard to persons falling within the designation of “informers”,the worst that can be said against them as a class is that they generallytestify in expectation or hope of reward. That is, undoubtedly, a matterwhich must be taken into account by Judge and jury in estimating the valueof their evidence, but it is not a matter which, in my opinion, calls for theapplication of the rule of practice relating to the evidence of accomplices.
There has, however, been a tendency to convert the rule of practice inregard to the corroboration of accomplices into a fetish, and to go downbefore it in blind worship. No discrimination is made between accom-plices and informers, and once a witness is found to be one or other ofthese, then by rule of thumb as it were, it is thought his evidence must berejected whatever its intrinsic value. That is just what has happened inthis case. The Magistrate involves himself in paradox. He refuses toact upon evidence which he believes. The Magistrate gives a good reasonfor believing Silva’s evidence. He says “in the Excise case referred tohe gave very good evidence, and so he did in this case ”, but his apologyfor not acting upon that evidence is that decisions of this Court requirehim not to act upon it.
I have examined most of these cases, and it seems clear that in nearlyevery one of them the evidence of the decoy was rejected not merelybecause he was a decoy, but for some additional reason, such as hijs badcharacter, his ill-will towards the accused, his unsatisfactory demeanour,and things like that.
For instance, in Caldera v. Pedrick *, there was evidence to show thatthere was a special reason and a special motive for the decoy wishing toimplicate the accused. It is true Garvin J. said, “ whether there wassuch a motive or not, there is the fact that he was a decoy”. But hewent on to say, “ I prefer, therefore, in this case to follow the opinionswhich have been previously expressed by Judges of this Court that it isnot desirable that a person should be convicted upon the Sole evidence ofa decoy”. In estimating the assistance that can be derived from thatjudgment, proper emphasis must be laid on the words “ in this case ” inview of the fact that there was evidence of “ special motive ”.
In Almeida v. Adiriyan *, Akbar J. rejected the evidence of the decoynot only because he was a decoy but also because there were strong reasonsin that case for suspecting the bona fides of the prosecution. Moreover,he found that the decoy’s and the Inspector’s version of the sale wasunconvincing. All he said, by way of general observation on the evidenceof decoys, was that their “ evidence should be examined with great careas interested parties may on little inducement give the necessary touchto their evidence in order to secure a conviction ”. That is, if I may sayso, an unexceptionable observation.
In Scharenguivel v. Mohamadu Segu which was an appeal from anacquittal, an examination of the evidence showed that the decoy’s storywas improbable. Even if it was accepted, it was inconclusive. Theacquittal of the accused was, therefore, inevitable quite apart from thefact that the evidence was that of a decoy. It is true that Fernando J.refers in the course of his judgment to the case of Silva v. Silva “, in whichMartensz J. said, “ it is now well established that a person should not
1 Courp. 331.» 6 Times 123.» 32 N. L. R. 230.
* 5 Times 70.* 15 Times 7.
SOERTSZ J.—Beddewela v. Albert.
be convicted on the uncorroborated testimony of a decoy. The decoy isplaced on the same footing as an accomplice ”, but it is not clear whatMartensz J.’s authorities are for that observation. The only case herefers to is that of Caldera v. Pedrick on which I have already commented.The English and Indian cases and text writers, as I have shown, saydefinitely that decoys and accomplices are not on the same footing.
In Fernando v. AndragesJayawardana A.J. after coming to theconclusion that the evidence in the case was unsatisfactory, concludes withthe remark “ a person should not be convicted on the uncorroboratedtestimony of a decoy ” and cites Caldera v. Pedrck in support.
In Wijesuriya v. Lye’, Macdonell C.J. says, “ it has been laid downagain and again—see particularly per Garvin J. in Caldera v. Pedrick,that it is unsafe to convict on the uncorroborated evidence of a decoy ”.But he goes on to qualify this a little later when he says, “ then it will,be difficult to accept the decoy’s version, above all, since the accused’sevidence seems to fall short of providing the corroboration which, even ifnot absolutely necessary, is certainly desirable ”. In the case of Kerr v.Wickramesinghe* my brother Heame J. ultimately relies on Caldera v.Pedrick, for he adopts Wijesuriya v. Lye and Pieris v, Seneviratne *, bothof which are based oh Caldera v. Pedrick.
It will thus be .seen, to say so with respect, that the course of thesedecisions is just a process of “ snowballing,” and that Caldera v. Pedrickkeeps recurring as the nucleus for the proposition that a decoy must becorroborated in order to be believed. But that case hardly says that.Even if that is its implication, it is, as already pointed out, contrary to aformidable volume of English and Indian authority.
For these^ reasons, I venture to adhere to the opinion I expressed inSiriwardane v. Vanderstraaten’, that a decoy or a spy is on a differentfooting from an accomplice so far as the rule of practice regarding corro-boration is concerned, but that their evidence should be probed andexamined with great care.
In the present case, the Magistrate examined the evidence of the decoyin that manner and believed it. It was his duty, then, to convict theaccused. But he says that he would have found the charge established“ if someone …. witnessed the actual bet taken by the witnessSilva with the accused, and had corroborated him in that respect ”. Theobvious rejoinder to that remark is that if such evidence was forthcoming,there was no need for the evidence of the decoy, unless the Magistratethinks that more than one witness is required in a case. But that, ofcourse, is not so. . ,
Even, if this were a ease in which the law required corroboration, I findit present in an almost overwhelming degree. The accused runs awaywhen he sees the police approaching ; he is arrested and when he issearched, the marked currency note is found on him. But, that is not all.Two ‘ treble ’ ticket books are.found on him, and from one of them haveissued the three ‘ treble ’ tickets which Silva gives up at the Police Station.All this the Magistrate accepts, rejecting the denial of the accused. Buthe says “ the long interval of time between witness Silva’s coming to the
> 31 N. L. S. 444.» 39 N. L. R. 571.
* 33 N. L. R. 148.,‘ 33 N. L. R. 157.
• •39 N. L. R. 627.
SOERTSZ J.—Rock-wood v. de Silva.
Police Station makes it possible that he got these slips from anotherperson, and so the corroborative evidence offered by P 2 being on theaccused loses its value This observation has the sound, not of a goodreason, but of a poor excuse, for not acting upon a strong piece of circum-stantial evidence. The “ long interval ” was a matter of ten or fifteenminutes, and I fail to see exactly what the Magistrate intends to conveywhen he says that it is possible that Silva got the three * treble ’ ticketsfrom another person. If he means to say that Silva could have bought his‘ treble ’ tickets not from the accused, but from another, then the questionarises, how came the accused to have the book containing the counterfoilsof the three tickets ? The Magistrate finds that the book was found inthe hands of the accused. It is very often possible, to offer some sort ofexplanation of facts by evolving far-fetched and fantastic theories, butwhen one is examining evidence judicially in order to ascertain whethera fact is proved or not, the Evidence Act affords the test when it says that“ a fact is said to be proved when, after considering the matters before it,the Court either believes it to exist or considers its existence so probablethat a prudent man ought, under the circumstances of the particular case,to act upon the supposition that it exists”.
therefore, set aside the order of acquittal, and remit the case to theMagistrate, and direct him to enter conviction and pass sentence.
^ Set aside.
BEDDEWELA v. ALBERT