006-NLR-NLR-V-34-KING–v.-ATTANAYAKE-et-al.pdf
King v. Attanayaka.
19
1931Present: Lyall Grant. J.
[2nd Midland Circuit, Kandy.]
KING v. ATTANAYAKE et al.'
50—P. C. Matale, 2,175.
Evidence—Uttering forged notes—Accused charged with aiding and abettingutterer—Statements by utterer—Things said in reference to the commonintention—Res gestae—Evidence Ordinance, ss. 6, 8, and 10.
The three accused were charged together in the same indictment,the first accused with forging four currency notes, the second and thirdaccused with aiding and abetting him. The third count in the indict-ment charged the three accused with having aided and abetted oneD to utter the aforesaid notes. To establish the last count, the Crownled in evidence certain statements incriminating the accused, alleged tohave been made by D, in the course of his attempt to pass the notes,to the witnesses called by the prosecution. These statements weredenied by D in the witness box.
Held, that the statements made by D were admissible in evidence.
T
HE three accused were charged before the Supreme Court on three ,counts. The first count in the indictment charged the first accused
with forging four 1,000-rupee currency notes at Matale. The second countcharged the second and third accused for abetment of the offence offorgery. The third count in the indictment charged the three accusedwith aiiding and abetting one Dantanarayana to utter the aforesaidfour forged currency notes, which said offence was not committed inconsequence of such abetment.
i 28 N. L. R. 339.
20
King v. Attanayaka.
The evidence given by two witnesses for the prosecution, Ramanathanand Canagaratnam, dealt with the attempt of Dantanarayana to utterthe forged notes in Colombo.
After Dantanarayana had. been called and had denied having givenutterance to the statements alleged, counsel for the defence objected tothe reception of the evidence.
R. L. Pereira, K.C. (with him L. B. de Silva and Peter de Silva), forsecond accused.—The Crown called Canagaratnam and Ramanathan, andled in evidence statements alleged to have been made by witness Danta-narayana. These statements were of such a nature as to inculpate notonly Dantanarayana but also the accused in this case. No objectionwas raised to this evidence at the time it was given, as the defencebelieved that Dantanarayana would be called to corroborate thisevidence. But Dantanarayana in his own evidence denied thestatements alleged to have been made by him. In view of this denial, theevidence of Canagaratnam and Ramanathan as to these statementswould be irrelevant under Chapter II. of the Evidence Ordinance.As confessions made by Dantanarayana, these statements would onlybe admissible in evidence against him and not the accused in this case.
These statements are undoubtedly “ hearsay ” and as such would beinadmissible in evidence unless corroborated by Dantanarayana (see Kingv. Silva*) or unless the Crown is in a position to specifically prove that thisis hearsay made admissible by some section in Chapter II. of the Evi-dence Ordinance. Under section 6 of the Evidence Ordinance hearsayis admissible when it forms part of the res gestae. This section allowsthe admission in evidence of statements made by third parties in thecourse of the same transaction. But these statements of Dantanarayanaare too remote to be said to form part of the same transaction—in theuttering of the forged notes. A statement can only be said to form partof the same transaction when it is a voluntary and spontaneous utterancearising from the transaction. These, however, are calculated statementsmade after due course and reflection for some personal motive of Danta-narayana and is not an unconscious expression of one’s feelings—as inthe case of the bystanders. In the words of Ameer Ali (see Commentaryon section 6, page 134).—They (statements) must stand on an immediatecausal relation to the act—a relation not broken by the interpretation ofvoluntary individual witness, seeking to manufacture evidence for itself. ”And later on the same page, he says, “ Whenever recollection comes in,whenever there is opportunity for reflection and explanation, thesestatements cease to be part of the res gestae.
Under section 10 of the Evidence Ordinance, statements of aco-conspirator though hearsay would be admissible in evidence toestablish the existence of the conspiracy and the complicating of anyparty to it. But it is a condition precedent to the application of thissection that there is reasonable ground to believe that two or morepersons have conspired to commit a wrong. 1
1 30 N. L. R. 193.
LYAIjL GRANT J.—King v. Attanayaka.
21
In. this case the accused are not indicted as being members of aconspiracy to commit an offence. The existence of the conspiracymust be an issue, and reasonable ground for the belief in the existence ofthe conspiracy must be proved before the statements of third partiescould be used against the accused. The statements themselves cannotbe used for this purpose. To reverse the procedure laid down as acondition precedent in section 10 would be to prejudice the accused, asirrelevant evidence would be then used to prove the grounds of beliefin the existence of the conspiracy (see Ameer Ali—Commentary onsection 10, page 156.—References 9 and 10).
Sri Nissanka associated himself with the argument of Pereira, K.C.
Crossette Thambiah, C.C., for the Crown—The authority relied uponKing v. Silva (supra) can easily be distinguished. In that case, ad-mittedly the Crown sought to lead corroborative evidence and soughtto do so in advance. In the present case, at no time has it been thecase for the Crown that Dantanarayana is a witness upon whom theCrown relies. This was made clear at the outset, when the case for theCrown was opened to the jury. Indeed, this is clear from a perusalof the terms of the indictment. Further, on the back of the indictmentare a number of witnesses . called expressly and solely to discreditDantanarayana. Further, with the acquiescence of the Court, Danta-narayana was treated as an adverse witness almost from the com-mencement of his examination-in-chief. Therefore, clearly, the Crowndid not and does not rely on Dantanarayana. Nor did counsel for theCrown at any time concede that Dantanarayana would be called tocorroborate Canagaratnam and Ramanathan. Dantanarayana wascalled for other good and sufficient reasons.
There is thus no analogy between the facts in King v. Silva (supra) andthe facts of the present case. The ground on which this objection hasbeen taken, therefore, fails.
It only remains to consider whether the evidence in question isadmissible; and, if so, under what sections of the Evidence Ordinance.
Counsel then proceeded to argue that the evidence was admissibleunder sections 5, 6, 8, 9, and 10 of the Evidence Ordinance. Counselcited Rawson v. Haigh 1; Regina v. Frost5; Rex. v. Murphy3; Emperorv. Datto Hanmant Shahapurkar4; King v. Aman5; Phipson on Evidence,2nd ed., p. 75 et seq.;. Woodroffe and Ameer Ali’s Law of Evidence, 1925ed., p. 106 et seq.; Taylor on Evidence, s. 590.
Pereira, K.C., in reply.
November 16, 1931. Lyall Grant J.—
I have to consider an objection which has been taken on behalf ofthe second and third accused to the admission of certain evidence. Theevidence in question, namely, that of the witnesses Ramanathan. andCanagaratnam, has already been taken and the contention of counselfor the defence is that in important particulars that evidence consists
1 C. L. P. 77.3 8 C. L. P. 311.
9. C. £ P. 129.' * 30 I. L. R. (Bombay) 49.
5 21 N. L. R. 375.
22
LYALL GRANT J.—King v. Attanayaka.
of hearsay, namely, statements which incriminate the accused and whichare alleged to have been made to these witnesses by one Dantanarayana.The objection was taken after Dantanarayana had been called and afterit became apparent that he denied having given utterance to the state-ments which these witnesses alleged that he had made.
It is urged for the defence that the statements in question allegedto have been made by Dantanarayana could only be received incorroboration of evidence given by him and that as he has denied thefact of his having made them, the evidence in question is pure hearsayand must be ruled out.
It is further urged that as the statements in question have gone beforethe jury and have a vital bearing upon the case, it is impossible that thejury’s minds would not be improperly influenced by those statementsand accordingly I am asked to exercise my powers under section 230of the Criminal Procedure Code and to discharge the jury.
Crown Counsel on the other hand argued that the statements inquestion are admissible independently of the evidence given by Danta-narayana on the ground that the statements form part of the res gestaeand are admissible under section 6 of the Evidence Ordinance. Alter-natively or additionally it is argued that they are admissible undersection 8 or under section 10 of the Evidence Ordinance or under boththese sections.
There are three accused—Attanayaka, Wimalasuriya, and NagoorMeera. The first count of the indictment is a charge against Attanayakaof forgoing four 1,000-rupee currency notes bearing certain numbers -in .the month of August, 1930, at Matale. The second charge is against thesecond and third accused for abetment of the offence of forgery.The third count of the indictment reads:—“ That between August 25, 1930,and September 12, 1930, at Matale, the first, second, and third accuseddid aid and abet one F. H. Dantanarayana to utter the aforesaid fourforged 1,000-rupee currency notes, which said offence was not conj-mitted in consequence of such abetment, and that they have therebycommitted an offence punishable under section 21 of Ordinance No. 18of 1884 and section 109 of the Criminal Procedure Code.”
The evidence given by Ramanathan and Canagaratnam deals withthe attempt of. Dantanarayana to utter the forged notes in Colombo.Ramanathan, who is a shroff in the Port Commission Office, alleges thatDantanarayana who was an acquaintance of his informed him on August26, 1930, that a certain party had brought a ljOOO-rupee forged note tobe cashed and wanted to cash it and asked him to introduce him to someof his friends at the Bank or Treasury. Ramanathan introduced himto Canagaratnam, who is a shroff at the Treasury.
A number of interviews subequently took place between Canaga-ratnam, Ramanathan, and Dantanarayana in connection with theattempt to utter the note.
Both Ramanathan and Canagaratnam speak to Dantanarayanahaving pointed out the third accused to them as one of the partiesconcerned and Canagaratnam speaks to a meeting at the Gordon Gardens,Colombo, on September 11.
LYALL GRANT J.—King v. Attanayaka.
23
Previous to this meeting, he alleges that Dantanarayana had offeredhim half the value of the note as an inducement for him to change themat the Treasury.
At this meeting Dantanarayana endeavoured to persuade him toaccept a smaller sum than Rs. 2,000 as a share of the proceeds, and in■order to persuade him to do so he said the money had got to be dividedamong four people of whom he was one ; one was Attanayaka, the firstaccused, another was Wimalasuriya, the second accused, and the otherwas the third accused, Nagoor Meera.
In corroboration of his statements he showed telegrams from thesecond and third accused. A subsequent discussion took place atRamanathan’s house and an arrangement was made for Dantanarayanato bring the notes to the Treasury on the 12th.
In consequence of this arrangement Dantanarayana came to theTreasury with the notes on the 12th and attempted to utter them. Hewas then arrested.
Crown Counsel contends that these statements made to Ramanathanand Canagaratnam are so connected with the fact in issue, namely, thequestion whether the accused aided and abetted Dantanarayana inattempting to utter the notes that they form part of the same transaction.He argued that the trasaction in question must be regarded as thewhole series of events, beginning with, the preparations of the forgeryof the notes, including the forgery itself, and continuing to the time atwhich the attempt to utter them failed. He argued that in order to geta thorough view of what occurred one must consider everything that wassaid or done with a view to passing the notes.
He distinguished statements made by Dantanarayana after his arrestarid after the transaction had broken down, from statements made inpursuance of the attempt to complete the transaction.
The former, he was willing to admit, might fall into the category ofadmission or confessions which would not be provable against anyoneexcept the person who made them.
It may be convenient to mention here that Dantanarayana, whileadmitting having received the notes from the third accused and alsoadmitting that they were received in connection with a transactionbetween himself and the second accused, has consistently denied thathe knew them to be forged, and has given a totally different account ofthe nature of the transactions between himself and the second accusedand third accused on the one hand, and between himself and Ramanathanand Canagaratnam on the other from the case put forward by theprosecution.
In particular, he denied that he pointed out the third accused at theVictoria Hotel and he also denied that he had a meeting at the GordonGardens with Canagaratnam or that he gave utterance there or anywhereto the statement spoken to by Canagaratnam. Dantanarayana hasbeen tried for attempting to utter the notes and has been convicted,but the fact of his explanation in his own case having been disbelievedby another jury does not properly affect the point which has now to beconsidered. Its only importance is that, assuming Canagaratnam’sstatements to be admissible, the. fact that they had been accepted by
24LYALL. GRANT J.—King v. Attanayaka.
/
another jury and that Dantanarayana’s story has been disbelieved mighthave a prejudicial effect upon the minds of the jury, and that if thestatements made are hearsay and not properly admissible, it would notbe sufficient that I should caution the jury against accepting them asit will be morally impossible for them to avoid doing so.
I do not think it is necessary for me to decide whether the wholeproceedings from the forgery of the notes to the attempted utteranceform one transaction though there appear to be strong grounds forarriving at this view. The notes had been forged and an attempt wasmade to utter them ; in fact the forgery without the utterance was ofho value to the forger. It' is sufficient however, I think, to decidewhether the evidence is irrelevant in regard to the third count of theindictment—the aiding and abetting of Dantanarayana in his attemptto utter the notes. Under the third count of the indictment a fact whichis undoubtedly in issue is the question whether Dantanarayanaattempted to utter the notes. If he did not do so, the accused cannotbe-guilty of aiding and abetting. The question, therefore, arises what is
the transaction which is dealt with, in the third count of the indictment.
<
It it merely the actual production of the notes by Dantanarayana at theTreasury on September 12 or is it the series of events spoken to byRamanathan and Canagaratnam beginning with Dantanarayana’sfirst introduction of the subject to Ramanathan on August 26.
It seems to me it is impossible to say that the transaction was merelythe occurrence of September 12.
The attempt began when Dantanarayana sounded Ramanathan witha view to getting an introduction to someone employed at the Treasury..Everything that was said and done in pursuance of the attempt to utterthe notes appears to me to form part of the same transaction.
If this evidence were to be excluded, it is difficult to see how one couldarrive at an intelligible idea of how the notes came to be presented at theTreasury on the 12th.
I think one must admit all the evidence which has been led to showhow these notes came to be presented.
It is not a question of corroborating Dantanarayana’s statement.The fact in issue is the commission by him of an offence and the factthat, while admitting the actual physical presentation of the notes andalso admitting various meetings with Ramanathan and Canagaratnam,he gives an account of the matter which exculpates him, does not, inmy opinion, preclude the Crown from leading other evidence to showthe real nature of the transaction.
It is, however, argued that these statements are not in fact so connectedwith the issue, namely, the attempted utterance of the notes, as torender them admissible, that they are mere admissions affecting otherpersons which cannot be proved except by the person making theadmission, apparently proved as against them. This is, the point whichhas given me most trouble in connection with this objection.
I have come to the conclusion, however, that the evidence is admissibleunder sections 6 and 8 ; under section 6, because these statements were
LYAL.L GRANT J.—King v. Attanayaka.
25
made for the purpose of endeavouring to persuade Canagaratnam toaccept a smaller sum than had been previously mentioned as his rewardfor putting the transaction through.
In other words, these statements are part of the acts which led up tothe attempt at utterance. They are part of the negotiations which atthat time was not completed and which might have broken down, andthey were statements made by Dantanarayana for the purpose of puttingthe transaction through on his own terms and in the interests of theaccused in the present case.
These statements, therefore, as well as the other statements made byDantanarayana appear to me to be part of the res gestae.
Section 8 provides that any fact is relevant which shows or constitutesa motive or preparation for any fact in issue or relevant fact. The 'fact of those statements shows preparation for the fact in issue, namely,the attempted utterance of the notes. The section makes the conductof any party, or of any agent to any party, to any suit or proceeding inreference to such suit or proceeding, or in reference to any fact in issuetherein relevant, if such conduct influences or is influenced by any relevantfact, whether it was previous or subsequent thereto. Even if sections 6and 8 are insufficient to make these statements relevant, I think theyare made so by section 10.
That section deals with conspiracy to commit an offence and providesthat where there is reasonable ground to believe that two or more personshave conspired together to commit an offence, anything said, done, orwritten by any one of such persons with reference to the commonintention, after the time when such intention was first entertained byany one of them, is a relevant fact as against each of the persons believedto be so conspiring, as well for the purpose of proving the existence of theconspiracy as for the purpose of showing that any such person was aparty to it.
It was argued by the defence that it cannot be said that, apart fromthe statements alleged to have been made by Dantanarayana, there isany reasonable ground to believe that the accused conspired tothis offence.
Ameer Ali’s Commentary on the Code states that the existence orfact of conspiracy must be proved before evidence can be given of theacts of any person not in the presence of the prisoner j but he admits thatdeviations have been allowed from this rule owing. to the difficultiesin the way of such proof, and evidence of the acts and conduct of othershas been admitted to prove the existence of a conspiracy before the proofof the defendant’s privity, but he continues: —“ in respect of suchconduct a distinction has been made between declarations accompanyingacts (which are admissible) and mere detached declarations and confessionsof persons not defendants, not made in the prosecution of the object ofthe conspiracy, and which being * hearsay ’ are not evidence even toprove the existence of a conspiracy.”
Apart from anything that the witnesses Ramanathan and Cariagarat-nam say that Dantanarayana said to them, evidence has been given ofcertain facts. On August 27, after the day on which Canagaratnam says
26
LYALL GRANT J.—King v. Attanayaka.
he first met Dantanarayana, he informed the Head Shroff that Danta-narayana proposes to pass a forged note. There is also the evidenceas to the visit of the Criminal Investigation Department Inspector deSilva to the Victoria Hotel on August 30 when a trap was set by him inconjunction with Canagaratnam and Ramanathan for Dantanarayana.This is evidence inconsistent with the account given by Dantanarayanathat on these dates he was either not in possession of forged notes ortotally ignorant of the fact that the notes in his possession were forged.
There is the evidence of Mr. Bertus, Manager of. the Prince of WalesHotel, that on September 4 a room in that hotel was occupied jointlyby the third accused and Dantanarayana. There is Dantanarayana’s-own evidence which admits a series of transactions between himselfand the second and third accused between August 25 and Septemper 12,including the passing between him and . the second and third accused ofvarious telegrams. There is also evidence by. him of having seen thefirst, accused sitting at a drawing board in the house of the secondaccused.
It is true that Dantanarayana strenuously denies the existence of aconspiracy, but his account does not explain the fact that the policewere informed by August 30 that he was attempting to pass forged-currency notes. There are also other items of evidence which havealready been led, and Crown Counsel states that further evidence willbe led to prove the finding of forged notes in the house of the first accusedat Maho and the connection of the second and third accused with thesenotes.
I think that sufficient evidence has been led to establish the fact thatthere is reasonable ground to believe that a conspiracy to forge andutter notes existed.
Taylor on Evidence (section 590) states that before any act ordeclaration of one of a company of conspirators in regard to the commondesign as affecting his fellows is led, a foundation should first be laid byproof, sufficient, in the opinion of the Judge, to establish prima faciethe fact of the conspiracy between the parties, or, at least, proper to belaid before a jury, as tending to establish such fact. The connection ofthe individuals in the unlawful enterprise being shown, every act ordeclaration of each member of the confederacy in furtherance of theoriginal concerted plan and with reference to the common object is, incontemplation of law an act and declaration of all and this is evidenceagainst each other.
This statement of the English law has, I think, exactly the same effectas section 10 of our Code. Taylor proceeds : —■“ Sometimes for the sakeof convenience the acts or declarations of one are admitted in evidencebefore sufficient proof is given of the conspiracy, the prosecutor under-taking to furnish such proof in a subsequent stage of the case.”
I think that sufficient evidence has been led or has been undertaken tobe led to justify me in saying that there is a prima facie case of conspiracyagainst these accused, or at any rate, a case to be put before the juryand that sufficient evidence has been led to allow the statements made byDantanarayana in the course of his attempt to pass the notes to beadmitted in evidence against these accused.