039-NLR-NLR-V-58-G.-L.-JAYASINGHE-Appellant-and-THE-LINDULA-POLICE-Respondent.pdf
1954Present: Gratiaen, J.
G. L-. JAYASINGHE, Appellant, andTHE LINDULA POLICE, Respondent.
-S'. C. 1130—M. C. Ilailon, 2105
Criminal Law—Ifon-disclosurc of defence lo Police—Inference of guilt.
TIio failure or refusal of an accused person to disclose his defence to the*'Police docs not justify an inference of guilt-, although it may, in any particularcase, affect the weight of the evidence which is led in support of it.
A
PPEAL from a judgment of the Magistrate’s Court, Hatton.
138G R AT IA KX, ,T.—Jnyasinyhe r. The Lindula Police
It is common ground, that at about 5.50 p.m. on tlic day in questionMr, Maitland, who was in his bungalow, received an anonymous'letterto the following effect:
“ Honoured Sir,
Check the Hoare & Co. van immediately. Urgent. ”
On receipt of this document, Mr. Maitland went up to the factory andsaw a van belonging to the firm of engineers concerned whoserepresentatives were at that time engaged in attending to some workin the factory. The van was searched, and there was found in it a sackcontaining S2 lb. of manufactured tea. I agree with the learned'Magistrate that the identity of the tea as tea manufactured in MeltonEstate has been established beyond doubt.
Mr. Maitland proceeded with his investigations, and it was brought tolight that the author of the anonymous letter was the "learner teamaker ” Selladurai who claimed that his suspicions had been arousedwhen he noticed an estate labourer putting " a bag ” into the van atabout 3.30 p.m. that afternoon. The labourer concerned was theprosecution witness Sandanam who explained that he had done so onthe instructions of the appellant. Sandanam denied, however, thatthe bag was the same article (containing tea) which Mr. Maitland later-discovered in the van. The van-driver also stated that the appellanthad requested him to return “ a bag of rice ” on his account to the firm•of David & Co. when the van returned to Talawakellc, the explanationbeing that David & Co. had sold him a bag of rice which on examinationwas found to be of poor quality –
The appellant gave evidence on his own behalf admitting the versions-of the van-driver and Sandanam to he true. He also called David Silvaof Talawakellc who confirmed that- he had in fact despatched a bag ofrice b}' Horace & Co.’s van to the appellant earlier in the day. DavidSilva’s evidence on this point was not challenged.
The defence was that some enemy of the appellant (possibly Selladurai,the author of the anonymous letter which led to the detection of. the“ theft ”) had caused a sack of tea to bo substituted for the rejected“ bagofricc- " at sometime bet ween 3.30p.m. and 5.50p.m. that evening.The appellant protested his innocence and relied strongly on his longand unblemished record of service in a position of responsibility underMr. Maitland.
The bare possibility of substitution could not- bo ruled out completely.It is t rue that the door of the van was found " closed ” when Mr. Mait landinspected it, but there was no suggestion that it had been “ lockedduring the crucial period. It is also a matter of some importance t-liat-t-ho sack of tea was discovered in the van more than two hours afterSandanam had placed in it a bag whose contents had not been examinedduring that long interval of time.
Although Sanclan'am and the van-driver were vital witnesses for theprosecution, the learned Magistrate seems to have regarded them as-accomplices of the appellant-, and he rejected their evidence on everypoint except when it implicated him. The learned Magistrate also-disbelieved the appellant and, in convicting him, stated somewhat-dramatically that lie “ would have to torture himself into having fantastic-doubts to give any weight ” to the defence.
The case is certainly one of very strong suspicion, but it is indeedunfortunate that Selladurai, instead of busying himself over the prepara-tion of an anonymous letter, did not immediately examine in Sandanam’spresence the bag which Sandanam had carried into the van. Had thatbeen done, the defence of substitution, if false, would have been-conclusively disproved. It would be quito unjust for me to reject the- evidence of this witness as untrue without having had the advantage ofseeing and hearing him for mj-self, particularly as he made a favourableimpression on the learned Magistrate. But I am not precluded from-observing that his regrettable preference for anonymity has deprived the■ Court of material evidence on a very vital issue.
There is one matter at least on which the learned Magistrate, in. analysing the defence, has seriously misdirected himself in law. It hasbeen proved that, at a certain stage of the investigation, the appellantwas taken to the Police Station to have his statement recorded. Whathe- stated to tlie investigating officer I do not know. But lie admittedunder, cross-examination that “ at that time I did not think of protestingto anybody that in reality it was a bag of rice that I put in. I cannotremember what I told the constable ”. In considering this admission,the learned 3[agistrate made the following criticisms which, to a verylarge extent, formed the basis of his ultimate conclusions ;
:c This conduct of the accused appears to me to bo the conductof a guilty man, for an innocent man, with 31 years’ service would, I
It- seems to me that-, in making this observation, the learned Magistrateregarded the appellant’s failure to disclose his defence to the Policewith any precision as tantamount to a confession of guilt. That was a-grave misdirection. There is no evidence that the appellant did notprotest his innocence, and if he had made any statement to the Policewhich would justify the inference that lie admitted his guilt, section 2of the Evidence Ordinance would necessarily have shut it out.
Even in England, where a voluntary statement made by an accusedperson to a Police officer, after being duly cautioned, is admissible in-evidence at his trial, the Courts have consistently pointed out thatfailure or refusal to make such a statement docs not justify an inferenceof guilt. Similarly uilh regal’d to a prisoner’s replies to thecommitting Magistrate. In R. v. Naylor 1 the prisoner, in answer to a-statutory caution addressed to him by the Magistrate.said,. “.I do notwish to say anything except that I am innocent”. At the subsequent
(7.0.7.?) 7 K. B. CSS.
trial," the Recorder, in liis summing up to the Jury, commented on this,answer and said that s* if the prisoner was innocent ho would doubtless:,have disclosed his defence in the Police Court The Court of Criminal.Appeal held that this was a misdirection, and quashed the convictionsee also R. v. Leckey 1 and R. v. Haddy 2.. '
I agree that adverse comment is permissible if an accused person, by-disclosing his defence at a very late stage, has thereby deprived the-prosecution of a reasonable opportunity of testing the truth of his-evidence—R. v. Parker 3, R. v. Litileboy 4, and R. v. Tune 5. If, therefore,.the learned Magistrate had confined his criticism only to the delay indisclosing the defence of substitution in so far as that delay had to some-extent prejudiced the Police investigation, such comment would havebeen unobjectionable. But the actual criticisms which I have quoted gobeyond legitimate comment. As Lord Hewart C.J. pointed out inLittleboy’s case (supra) :
“ It is one thing to make an observation with regard to. the force-of a defence (o.g. an alibi) and to say that it is unfortunate that the-defence was not set up at an earlier date so as to afford the opportunityof its being tested ; but it is another thing to employ that non disclosure-as evidence against an accused person ”..
In other words, a delay in disclosing one’s defence may, in any particular-case, -go to the weight of the evidence which is led in support of it;but such delay can never be regarded as evidence of guilt. The learnedMagistrate seems to have misunderstood the purport of the legitimate-cross-examination of the appellant on this aspect of the case.
In my opinion, it is not safe, in view particularly of this misdirection-to allow the conviction to stand. I allow the appeal and acquit the*accused.
Appeal allotted.