J. ANANDAGODA, Appellant, and THE QUEEN, Respondent

011-NLR-NLR-V-64-J.-ANANDAGODA-Appellant-and-THE-QUEEN-Respondent.pdf


Anandagoda v. The-
[In the Privy CounciS}
1902 Present: Lord Tucker, Lord Hodson, Lord Guest,
Lord Devlin and Mr. L. M. D. de Silva
J.ANANDAGODA, Appellant, and THE QUEEN, Respondent
Pbivy Council Appeal No. 27 op 1961
O.C. A. 114 of 1960/S. C. 14—M. C. Anuradhapura, 17176
Evidence—Confession—Test for deciding whether or not a statement is a
confession—Statement must be considered by itself without reference toextrinsic facts—Evidence Ordinance, ss. 17, 25—Statement made to apolice officer—Inadmissibility under s. 122 (I) of Criminal ProcedureCode.
Joinder of persons and charges—Two persons charged with conspiracy to
commit murder and with murder—Statement made previously by 2ndaccused implicating 1st accused and exonerating himself—Separatetrial is at discretion of Judge—Acquittal of both accused on the count ofconspiracy—Conviction of one. accused alone for murder—Legality—
Penal Code, ss. 113 B, 295.
The test whether a statement is a confession within the meaning ofsections 17 (2) and 25 of the Evidence Ordinance ia an objective one, whetherto the mind of a reasonable person reading tho statement at the time and inthe circumstances in which it was made it can bo said to amount to a statementthat the accused committed the offence in question or which suggested theinference that he committed the offence. The statement must be looked at .as a whole and it must be considered on its own terms without reference toextrinsic facts. It is not permissible, in judging whether the statement is
, a confession, to look at other facts which may not be known at the time or' which may emerge in evidence at the trial. But equally it is irrelevant to! consider whether the accused intended to make a confession. If the facts inthe statement added together suggest the inference that the accused is guiltyof the offence, then it is none the less a confession even although tho accusedat the same time protests his innocence.
It cannot be contended that a statement made to a police officer is inadmissiblein evidence under the provisions of section 122 (3) of the Criminal ProcedureCode unless there is sufficient material to show that tho police officer to whomthe statement was made was conducting an investigation under Chapter XIIof the Code.
The appellant was tried, together’with the 2nd accused, upon an indict-ment which charged them both with the offence of conspiracy to murder X-They were also charged that they did “ in tho course of the same transaction ”commit the offence of murdering X. Both of them were found not guiltyon the first count of conspiracy. On the second count of murder the appellantwas found guilty, and the 2nd accused was found not guilty.
The trial Judge refused to accede to a motion made by tho appellant'sCounsel, at the commencement of the trial, for a separate trial in view of thedamaging nature of a statement made’by the 2nd accused in which he implicatedthe appellant while exonerating himself. In the summing-up, however, the. * Judge warned the jury that the 2nd accused’s statement was not evidenceagainst the appellant.
4—Lxiv
2——-it 4140—1,883 (8/82)
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LORD GUEST—Anandagoda v. The Queen
Held, that the trial Judge did not exercise his discretion wrongly in refusinga sopnrate trial.
Held further, that there was no inconsistency in the jury’s verdict in findingboth accused not guilty of the first count (conspiracy to murder) and the second %accused not guilty and the appellant guilty of the second count (murder). It couldnot be contended that tho words “ in the course of the same transaction ”in the second count referred to tho first count and that the accused could notcommit murder in the course of a transaction of which he had previously beenfound not guilty.
Appeal by special leave from a judgment of the Court of CriminalAppeal reported in {I960) 62 N. L. R. 241.
Ralph Millner, for tho appellant.
F. N. Gratiaen, Q.C., with L. B. T. Premaratne and T. 0. Kellock,for the Crown.
.. Cur. adv. vult.
April 4, 1962. [Delivered by Lord Guest]—
This is an appeal by special leave from a judgment of the Court ofCriminal Appeal of Ceylon, dated 4th August, 1960, dismissing an appealby tho appellant against a conviction of murder in the Supreme Court atAnuradhapura, First Midland Circuit, on 27th May, 1960.
The appellant was tried, together with two other accused, upon anindictment which charged all three accused with two offences, viz.,conspiracy to murder, and murder, in terms as follows
That between the 2nd day of March, 1959 and the 15th day of
March, 1959, at Timbiriwewa, in the division of Anuradhapura,within the jurisdiction of this Court, and at Kalutara, Kala-"wellawa, Colombo, Puttalam and other places, you did agreeto commit or abet or act together with a common purposefor or in committing or abetting an offence, to wit, the murderof one Adeline Vitharana and that you are thereby guilty ofthe offence of conspiracy for the commission or abetment ofthe said offence of murder in consequence of which conspiracythe said offence of murder was committed and that you have(hereby committed an offence punishable under Section 296(Murder) of the Penal Code read with Sections 113B(Conspiracy—punishable as for abetment) and 102 (Abetment)of the said Code.
That on or about the 14th day of March, 1959, at Timbiriwewa
within the jurisdiction of this Court, you did in the course of thesame transaction commit murder by causing the death of the saidAdeline Vitharana and that you have thereby committed anpffence punishable under Section 296 of the PenalCode, ;
LORD QUEST—Anandagoda v. The Queen
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The appellant was the 1st accused. The indictment against the 3rdaccused, A. Isiman Silva, alias Sirisena, was withdrawn by the Crown atthe close of the prosecution case. Both the appellant and the 2ndaccused, T. D. Allis Singho, alias T. D. Podisingho Perera, were foundnot guilty on the first count of conspiracy by a unanimous verdict ofthe jury. On the second count of murder the appellant was found guiltyby a majority verdict of 6 to 1, and the 2nd accused was found not guiltyby a majority verdict of 5 to 2.
In the course of a lengthy trial, in which 110 witnesses were called bythe prosecution, the following facts (as set out in the judgment of theCourt of Criminal Appeal) were deposed to :—
“ Late at night on 14th March, 1959, the dead body of a woman was. discovered lying at Timbiriwewa near the 27th mile-post on the roadbetween Puttalam and Anuradhapura. A post-mortem examinationconducted on 16th March 1959 revealed that the woman was between. 20 and 25 years of age, that she had been about seven months advancedin pregnancy, and that her body bore numerous injuries consistent withher having been run over by a motor car. The case for the prosecutionwas that the dead body was that of Adeline Vitharana, that her deathhad been caused by a motor car being deliberately driven over her bodyat least twice, that the consequent injuries were the cause of her death,and that death had occurred between 11 p.m. and midnight on 14th' March, 1959. It was not contended on appeal that it was in any wayunjustifiable for the jury to decide upon the evidence either that theidentity of the dead woman had been proved, or that she had beenkilled in the manner and at the time and place asserted by theprosecution.
The prosecution called witnesses who deposed to the followingmatters, inter alia :—
(а)That the appellant had, under a name different to that by which
he was ordinarily known, been acquainted with Adeline, anintelligent and attractive young woman, from about November,1956 ; that he was the father of an illegitimate child bom toAdeline in August, 1957 ; that he had thereafter promised tomarry her, ahd that he had communicated with her under hisassumed name and received letters from her at an accommoda-tion address furnished by him.
(б)That the appellant had been on friendly terms with a family of
better social status than that of Adeline’s relatives ; that heoccasionally stayed at the home of that family, and that it wasapparent that he proposed to contract a marriage with the youngdaughter of that family.
That the appellant had been the owner of a Fiat car No. 1 Sri6265, and that, although there was a change of registration inJanuary, 1959, he had continued thereafter to be the actual userand the virtual owner of that car.
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That Adeline, on 19th January, 1959, after discovering the true
identity of the appellant, wrote to the Headmaster of the schoolat Kalutara at which the appellant was employed as a teacher,alleging that the appellant was the father of her child and hadpromised to marry her, and expressing her intention to representmatters to the Director of Education ; that this letter was shownthereafter to the appellant by the Principal of the School.
– That Adeline left her home at Ivatugastota on 2nd March, 1959,
having expressed her intention to see her father and to meet theappellant at Kalutara in order to obtain some money from him.
♦
(/) That on 2nd March, 1959, a young woman, apparently pregnantwas seen near the fence of the school at Kalutara, that a messagegiven by the young woman was delivered to the appellant inthe school, and that he afterwards came in a car and took heraway ; that a young woman identified as Adeline was seen lateruii the same day at. the village of Kalawellawa and had residedfor a lew days in that village with the family of one Alo Singho;itnii. that the appellant himself hud been seen in his car in thatvillage ; at least on one occasion with. Alo Singho and on anotherin the village bav.uur.
(<j) That the appellant on one occasion stopped his car close toAlo Singho’s house and sounded his horn, whereupon AloSingho came up to the car and after speaking to the appellantreturned to his house ; that shortly thereafter Adeline came tothe car dressed in a saree and left in the car with the appellantand the 2nd accused, taking with her a black handbag and anumbrella. There was little room for doubt, having regard tohis evidence, that the witness who deposed to these facts spokeof an incident which took place on Saturday, 14th March, 1959.
That the 2nd accused, a person well-known to the appellant was
a brother of Alo Singho, who has been referred to above.
That the appellant drove a car similar to the car Ho. 1 Sri 6265
to a petrol station at Horana in the afternoon of 14th Marchwith the 2nd accused and a woman, and purchased petrol there ;that on the night of 14th March at about 9 or 9.30 p.m. theappellant and the 2nd and 3rd accused had come to an hotel inPuttalam in the company of a young woman dressed in a sareeand that dinner had been served to them.
That the appellant had, probably on the 12th March, 1959, tried
to obtain a car on rent from a hire service in Colombo for useon the 14th and 15th March, and that because a car was notavailable for the 14th, he had rented a car for the 15th March' and used it on that day to make a journey of 277 miles, thusrendering it possible that he could on the 15th have made a tripto the place where the body was found.
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That despite the fact that the appellant’s car had been servicedon the 16th March and the undercarriage cleaned with penetrat-ing oil, four hairs similar to (though not shown to have beenidentical with) Adeline’s hair were found adhering to the under-carriage when the car was later examined. ”
The appellant gave no evidence and called no witnesses.
In addition to the above evidence, the Prosecution adduced evidenceby a, police officer, Inspector Dharmaratne, who said that the appellantmade certain admissions to him while in his charge at Anuradhapurapolice station on 22nd March, 1959. The evidence of the Inspector onthis point is as follows :—
“ Q. And at about 10.10 a.m., on the 22nd March the first accused(i.e. the appellant) made a statement to you ?
A. Yes.
Q. Did the first accused tell you his relationship with AdelineVitharana ?
(Mr. Saravanamuthu (Counsel for the appellant) objects.Over-ruled.)
A. Yes, he told me that Adeline Vitharana was his mistress for about2 or 3 years and she has a child by him.
Q. Did he tell you anything about any request made to him by AdelineVitharana ?
A. Yes. He said that Adeline was insisting that he should get marriedto her but he was putting it off.
Q. Did he tell you what Adeline Vitharana’s attitude to him afterthat was ?
A. He said that Adeline Vitharana was disgracing him and that shewas an unbearable nuisance to him.
Q. Did he tell you anything of what happened on the 2nd March,1959 ?
(Mr. Saravanamuthu : I object on the ground that it is aleading question.
Court: I do not think it is. I over-rule that objection.)
A. He said that Adeline Vitharana came and saw him at Kalutara onthe 2nd March and that he took her to Kalawellawa on that dayand left her in the house of Podisingho. No. I am sorry. (Mr.Saravanamuthu : I object to the reference to the book.)
Court: Q. How can you object ?
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A. Ho said he left her at a place at Kalawellawa.
Q. Did he tell you where he was on the 14th of March, 1959 ?
A. He told me that on the 14th March he started in his car withAdeline Vitharana, the second accused Podisingho for Anuradha-pura via Puttalam. They reached a Muslim hotel at Puttalambetween 8 and 9 p.m.
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Q. Did he tell you what he did on the 15th March ?
A. Yes, Ho said he got a red Vanguard from Avis motors and cameto Anuradhapura via Puttalam with his watcher Sirisena.
Q. Did he tell you where he was about 3 or 3.30 p.m. on the 15thMarch ?
A. Yes. He said he passed the scene of murder.
(Mr. Saravanamuthu objects.)
Q. That is the place where the body was ?
A. Yes.
Q. Please refresh your memory ?
A. He said that he passed the body of Adeline Vitharana and that heslowed down and noticed people and police officers there. ”
The appellant submits that these statements were wrongly admitted inevidence, because they give rise to an inference or inferences prejudicial tothe appellant, or suggest the inference that he committed the offence ofwhich he was found guilty, and they therefore constitute a confessionor confessions within the meaning of the relevant provisions of theEvidence Ordinance, namely :—
Section 25. No confession made to a police officer shall be proved asagainst a person accused of any offence.
Section 17.(1) An admission is a statement, oral or documentary,
which suggests any inference as to any fact in issue or relevant fact, andwhich is made by any of the persons and under the circumstanceshereinafter mentioned. 2
(2)A confession is an admission made at any time by a personaccused of an offence stating or suggesting the inference that hecommitted that offence.
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There has been a certain divergence of opinion in the Courts of Ceylonas to the meaning to be given to the word “ confession ” as used in section25. In King v. KdLu Banda 1 the accused set up the defence that hewas acting in self defence and at tbe trial a police officer gave evidencethat the accused had made a certain statement but that he did notsay anything about having been attacked or threatened. The Court heldthe evidence was inadmissible under section 25 as it in substance amountedto a confession. Their Lordships have no criticism to make of the resultof the decision as it would be manifestly unfair to the accused to allowevidence of a “ confession ” without its contents. But Lascelles C.J. atpage 425 stated “ It was recognized that police officers in Ceylon, as inIndia, are not always proof against the temptation of deposing that theaccused made some statement the effect of which is to strengthen the casefor the prosecution, or to clinch the charge against the accused If thisis interpreted as stating the object of the legislature in making confessionsinadmissible their Lordships do not consider it well founded. In a latercase of Weeralcoon v. Rarihamy 2 the accused was charged with voluntarilycausing hurt. In a statement to a police officer the accused deniedthe cutting and said that the injured person got cut accidentally. Thestatement was held to be inadmissible. Branch C.J. at page 26S againreferred to the policy of the legislature in these words “ The legislaturedesired to prevent the reception of any evidence by police officers as tostatements made to them by accused persons which would either bringhome the charge to the accused or strengthen the case for the prosecutionand full effect must be given to that intention ” and later said “ It mayeasily happen that the evidence of a police officer as to statements made tohim by accused persons may at the commencement of the trial appearentirely innocuous, but during its subsequent course that evidence mayclinch a charge against the accused or it may influence a man in setting upa defence which cannot be sustained. There can be no doubt as to thekind of mischief the enactment seeks to avoid ”. Their Lordshipsare of opinion that the above statements do. not correctly interpret themeaning to be attributed to the word “ confession ” in section 25. Theyconsider that the correct view was taken by Garvin A.C.J. in King v.Cooray 3 when he stated after quoting section 17 of the Evidence Ordin-ance “ The term ‘ admission ’ is the genus of which ‘ confession ’ is thespecies. It is not every statement which suggests any inference as toany fact in issue or relevant fact which is a confession, but only a state-ment made by 'a person accused of an offence whereby he states thathe committed that offence or which suggests not any inference but theinference that he committed that offence ”. Their Lordships do notconsider that it is necessary to draw the distinction made by the Courtof Criminal Appeal in this case between “ facts in issue ” and “relevantfacts ” which are to be found in section 17 (1). The test whether astatement is a confession is an objective one, whether to the mind of areasonable person reading the statement at the time and in the
1 {1912) 15 N. L. R. 422.* {1926) 27 N. L. R. 267,
3 {1926) 28 N. L. R. 74.
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circumstance in which it was made it can be said to amount to a state-ment that the accused committed the offence or which suggested theinference that he committed the offence. The statement must be lookedat as a whole and it must be considered on its own terms without referenceto extrinsic facts. In this connection their Lordships consider that theview expressed by Gratiaen J. in Seyadu v. King 1, “ The test of whetheran ‘ admission ’ amounts to a * confession ’ within the meaning of Section17 (2) must be decided by reference only to its own intrinsic terms ” iscorrect. It is not permissible in judging whether the statement is aconfession to look at other facts which may not be known at the timeor which may emerge in evidence at the trial. But equally it is irrelevantto consider whether the accused intended to make a confession. Ifthe facts in the statement added together suggest the inference that the-accused is guilty of the offence then it is none the less a confession evenalthough the accused at the same time protests his innocence. Supportfor these views can be obtained from the judgment of the Boar<J inDal Singh v. King-Emperor 2 when Lord Haldane held that a statementby the accused in which he stated inter alia that ho was at the scene ofthe crime was in no sense a confession. Unless section 17 is giventhis restricted meaning, it would be impossible to draw the line between• non-confessional statements and confessions. If any admission by anaccused of a relevant fact or fact in issue is to be inadmissible then itis difficult to understand why the legislature qualified “ confession.”in section 17 (2) as being a statement of the commission of an offenceor a statement suggesting the inference of the commission of an offence.It would have been a simple matter to make all admissions by accusedpersons inadmissible in evidence. The appropriate test in decidingwhether a particular statement is a confession is whether the words ofadmission in the context expressly or substantially admit guilt or dathey taken together in the context inferentially admit guilt ? A use-ful definition of a “ confession ” is to be found in Wigmore's Law ofEvidence (America) I. Section 821 page 930 quoting from a judgmentof Wolverton J. in State v. Porter 32 Or. 135, 49 Pac. 964 : “ We take itthat the admission of a fact, or of a bundle of facts, from which guiltis directly dcducible, or which within and of themselves import guilt,may be denominated a confession, but not so with the admission ofa particular act or acts or circumstances which may or may not involveguilt, and which is dependent for such result upon other facts or circum-stances to be established. It is not necessary that there be a declarationof an intent to admit guilt; it is sufficient that the facts admitted involvea crime, and these import guilt, or, as put by Mr. Wharton, ‘ “ I amguilty of this ” ; and this imports the admission of all the acts constitut-ing guilt It is necessary, however, that the accused should speak with,an animus confitendi, or an intention to speak the truth touching thespecific charge of guilt ; and when he, with such intention, narrates facts.
1 (1951) 53 A7. L. li. 251 at p. 253.2 (1917) 44 Indian Appeals 137.
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•constituting a crime, the guilt becomes matter of inference, a resultantfeature of the narration without an explicit declaration to that effect. So-that we conclude that whenever the statements or declarations of the-accused, voluntarily made, are of such facts as involve necessarily thecommission of a crime, or in themselves constitute a crime, then thefacts admitted import guilt, and such admissions may properly bedenominated confessions. ”
Their Lordships therefore consider that there is no ground for criticismof the test which the Court of Criminal Appeal applied in examining theAppellant’s statements. If the statements are considered by them-selves, they do not in their Lordships’ opinion amount to a confessionof guilt within the meaning of section 17 (2). There is no admission thatthe appellant was driving the car at the time of the offence or that ifhe was driving the car that in running over the deceased the appellantwas acting deliberately both of which elements would be necessary toconstitute the crime of murder. In their Lordships’ view the evidencewas properly admitted.
The appellant also argued that the trial judge ought to have acceded to amotion made by the appellant’s counsel at the commencement of the trialfor a separate trial in view of the damaging nature of a statement made bythe 2nd accused in which he implicated the appellant while exoneratinghimself. The question of a separate trial was for the discretion of the trialjudge and he was no doubt influenced by the fact that the first count in theindictment was one of conspiracy. No criticism was made of the learnedjudge’s summing-up in which he warned the jury that the second accused’sstatement was not evidence against the appellant. Their Lordships areunable to say that the judge exercised his discretion wrongly in refusing aseparate trial.
•It was also urged for the appellant that there was inconsistency in thejury’s verdict in finding both accused not guilty of the first count and thesecond accused not guilty and the appellant guilty of the second count.The argument was that the words “ in the course of the same transaction ”in the second count referred to the first count and that the accused couldnot commit murder in the course of a transaction of which he hadpreviously been found not guilty. Their Lordships cannot agree thatbecause the appellant was found not guilty of conspiracy to murderthat the jury could not consistently with that verdict find him guiltyof murder. If they thought the second accused was not implicatedin the conspiracy they had no alternative but to find both accused notguilty of the first count. In finding the accused guilty on the secondcount they may have been influenced by the appellant’s statementsand the other evidence already referred to. There is in their Lordships'opinion no inconsistency.
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The appellant’s counsel finally submitted that the statements by theappellant to Inspector Dharmaratne were inadmissible under the provi-sions of section 122 (3) of the Criminal Procedure Code. Section 122 (1),(2) and (3) is in the following terms :—
“ 122.(1) Any police officer or inquirer making an inquiry under this
Chapter may examine orally any person supposed to beacquainted with the facts and circumstances of the case andshall reduce into writing any statement made by the personso examined, but no oath or affirmation shall beadministered to any such person, nor shall the statementbe signed by such person. If such statement is notrecorded in the Information Book, a true copy thereofshall as soon as may be convenient be entered by suchpolice officer or inquirer in the Information Book.
Such person shall be bound to answer truly all questionsrelating to such case put to him by such officer other thanquestions which would have a tendency to expose him to acriminal charge or to a penalty or forfeiture.
No statement made by any person to a police officer or aninquirer in the course of any investigation under thisChapter shall bo used otherwise than to prove that awitness made a different statement at a different time,or to refresh the memory of the person recording it.But any criminal court may send for the statementsrecorded in a case under inquiry or trial in such, court andmay use such statements or information, not as evidencein the case, but to aid it in such inquiry or trial. ”
This point was not taken in the Ceylon Courts and appeared for the firsttime in the appellant’s printed case. Their Lordships declined to allowappellant’s counsel to argue the point. Before a statement becomesinadmissible under section 122 it must have been made “ to a police officer». .in the course of any investigation ” under Chapter XII which is
headed “ Investigation of Offences ”. Section 121 lays down the proce-dure to be followed where cognizable offences are suspected and theinvestigation is to be made by an officer in charge of a police station.There is in their Lordships’ view insufficient material to enable themto say whether Inspector Dharmaratne to whom the statements weremade was conducting an investigation under Chapter XII. TheirLordships therefore felt themselves unable to consider the admissibilityof these statements in the absence of the necessary evidence to show thatsection 122 (3) was applicable.. Their Lordships express no opinionas to whether if section 122 (3) did apply the statements would havebeen inadmissible.
, • *Their Lordships have humbly advised Her Majesty that .the appeal bedismissed.
Appeal dismissed. *