COURT OF APPEAL.
GUNASEKERA, J. ANDYAPA, J.
C.A. NO. 146/93
C. COLOMBO NO. 4911/91M.C. PANADURA NO. 953/93
OCTOBER 13, 14,19, NOVEMBER 15, 16 AND 18, DECEMBER 02 AND 18 1994.
Criminal Law – Conspiracy to commit murder – Prevention of Terrorism Act -Confession to S.S.P. – S. 16 of the Prevention of Terrorism (Temporary Provisions)Act, No. 48 of 1978 – Section 24 of the Evidence Ordinance.
A confession made by an accused person to a Senior Superintendent of Policerecorded under Section 16 of the Prevention of Terrorism (Temporary Provisions)Act, No. 48 of 1978 may be Droved against the maker if such statement is notirrelevant under Section 24 of ’he Evidence.
Where the accused denied making a statement to the Senior Superintendent ofPolice though he had signed it under assault, the typist who typed the statementshould have been called. Further the evidence of the typist was very materialbecause in his declaration he has noted that he correctly typed the statement asdictated by G. P. S. Ariyasena ;hus giving the impression that what was typed waswhat S.S.P. Ariyasena dictated and not what accused stated.
A confession made by an accused person is irrelevant in a criminal proceeding ifthe making of the confession appears to the court to have been made underinducement, promise or threat'S. 24). The evidence of assault on the accused bythe Police has not been sufficiently rebutted.
A doubt necessarily arises as to whether the confession is a verbatim record ofwhat was uttered by the accused.
Case referred to:
Vivekanandan v. Selvaratnsm 79 N.L.R. 337, at 343 and 344.
APPEAL from conviction and sentence entered by the High Court of Colombo.
R. I. Obeysekera, P.C. with Ark! Silva, K. P. Thavarasa and Mrs. G. Thavarasa foraccused-appellant.
C. R. de Silva, D.S.G. with S. Samaranayake, S.C. for the Attorney-General.
Cur. adv. vult.
The accused-appellant was indicted with Rajalingam Aravindanalias Rasiah Aravincfan alias Paul Fernando, alias Visu, Aloysius Leonalias Peter, Kandiah Sivakumaran alias Arebu and others unknown tothe prosecution with having conspired between the 1st day of June,1989 and the 13th of July, 1989 at Colombo to commit murder bycausing the death of a specified person to wit, AppapillaiAmirthalingam, a Member of Parliament, an offence punishable underSection 3 read with Sections 2(1 )(a) and 3(b) of the Prevention ofTerrorism (Temporary Provisions) Act, No. 48 of 1979 as amended byAct No. 10 of 1982.
After trial before the learned Judge of the High Court, sitting in theHigh Court, Colombo and the High Court, Panadura, the accused-appellant was convicted of the said charge on 19th November 1993,and was sentenced to 7 years rigorous imprisonment. It is against thesaid conviction and the sentence that the accused-appellant haspreferred this appeal.
The prosecution led in evidence, the confession made by theaccused-appellant to the Senior Superintendent of PoliceG. Ariyasena, and further the evidence of Security Officer T. A.Nissanka, Assistant Superintendent of Police Ananda Galgamuwa,Dr. Mrs. Kariyawasam, Dr. Premaratne and Dr. SomasunderamNiranjan. It is to b® noted that when the confession made by theaccused-appellant was sought to be led in evidence by theprosecution, it was objected to by the defence, and therefore aninquiry was held for the purpose of deciding the voluntariness of theconfession. After the inquiry, when the Court ruled that the saidconfession had been made by the accused-appellant voluntarily,permission was granted to lead the confession as evidence in thecase. However at this inquiry the accused-appellant gave evidenceand the position taken up by him that no such confession was madeby him.
In the confession which was marked and produced by theprosecution as P1, some portions were specially marked, in order to
show that the accused-appellant was an active member of the
T.T.E. organization and that he supported the activities of the saidorganization. Further that the accused-appellant while staying atAnderson Flats Colombo, associated with Visu, Aloysius, andSivakumaran and that about five days before the 13th of July 1989,they had met at the accused-appellant's flat and Visu had drawn asketch depicting the house, the entrance road, and the by roadsleading to Amirthalingam’s house, and discussed a plan to shootAmirthalingam and Sivasithambaram. There is also material in theconfession that Visu had stated in the discussion that, when they goto this house, Amirthalingam, Sivasithambaram and Yogeswaranwould be there, and that Visu would shoot Amirthalingam, Aloysiuswould shoot Sivasithambaram, and at that stage the accused-appellant had told Visu, that if they do not shoot Yogeswaran therewould be a problem, and therefore suggested that at leastYogeswaran should be shot on the leg, to cause a minor injury.
According to the evidence of Assistant Superintendent of PoliceQalgamuwa, it was revealed that two packets containing gelignite, ared coloured detonator cord, and five electric cords with wire, wererecovered from the flat in which the accused-appellant was residing.Further the witness stated that when the flat in which Aloysius Leon,and Aravindan alias Visu were residing was searched, a sketchdrawn on a letter pad cover and a letter written by the accused-appellant was recovered. The sketch and the letter were producedmarked P2 and P3. This witness also stated that from the same flat inwhich Aloysius Leon and Aravindan at that time were residing, ahand bomb, two pistols, and two boxes containing empty cartridges,were recovered.
The security officer, T. A. Nissanka gave evidence and stated that on13.07.89 he was working as a personal security officer toAmirthalingam, and three persons entered the residence ofAmirthalingam, and they were allowed to come into the house without asearch at the instance by Yogeswaran. Thereafter the witness said thattwo of these persons went upstairs and were talking to Yogeswaranand the other person remained in the ground floor. Shortly thereafterAmirthalingam, Sivasithambaram, and Senadhirajah joined the twopersons who were talking to Yogeswaran. After some time the witness
stated that he heard gun shots, and when he noticed that these twopersons who were at the discussion, were coming out from a room,shooting at persons, he shot at them in return. Further the witnessstated that he shot at the other person who was in the ground floor,and thereafter he informed the police who were in a jeep that wasparked near the River Valleys Development Board. The witness finallystated that due to this incident of shooting, Amirthalingam, andYogeswaran, and the three persons, who came to Amirthalingam’sresidence that day, died.
Dr. (Mrs.) Kariya^lsam who held the post-mortem examination ofVisu, Dr. Premaratne who held the post-mortem examination ofAloysius, and Dr. Somasundaram Niranjan who held the post-mortemexamination of Sivakumaran, stated that the accused-appellantidentified the bodies of these three persons as persons known to him.
After the prosecution case was closed and when the defence wascalled, the accused-appellant remained silent.
At the hearing of the appeal one of the submissions made by thelearned President’s Counsel was that the alleged confession that wasproduced in the case was not made by the accused-appellant. Thelearned President Counsel submitted that, before a confession wasadmitted under Section 16 of the Prevention of Terrorism (TemporaryProvisions) Act, No. 48 of 1979 as amended it was necessary for theprosecution to prove that the confession was in fact made, to a policeofficer not below the rank of an Assistant Superintendent of Policeand that it was after such proof, that the question of irrelevance underSection 24 of the Evidence Ordinance arose. The learned Counselsubmitted that the accused-appellant in this case was arrested on
and was kept in police custody, and he was interrogatedduring the course of about two weeks and notes were recorded byhim in a note book, it was the contention of the learned Counsel thataccording to the prosecution the alleged confession came to berecorded several days later, namely on 10.08.89, 11.08.89, 12.08.89and 13.08.89. However the position of the accused-appellant wasthat he did not agree to make a confession, and that he never madesuch a confession, but a typed document was given to him and hewas made to sign.
To support this contention the learned President’s Counsel referredto the failure of the prosecution to produce the note book in whichS.S.P. Ariyasena had taken down notes, when he questioned theaccused-appellant for two weeks regarding his involvement. In otherwords what the learned President’s Counsel was seeking to showwas that the material obtained by questioning the accused-appellantfor two weeks was typed in the form of a confession and thereafterthe signature of the accused-appellant had been obtained. Assubmitted by the learned Deputy Solicitor-General certainly thematerial that is available in the confession could not have been putinto the confession unless all this material came from the accused-appellant in some form.. Further if the accused-appellant was made tosign the prepared confession as alleged by the defence, it wouldpossibly have been on 13.08.89. However this position cannot beaccepted having regard to the sketch that was produced in the casemarked P2, which clearly bears the initials of the accused-appellantdated 12.08.89. This document P2 gives credence to the fact that theaccused-appellant has placed his initials on 12.08.89, when he wasshown the sketch, at the time of recording the confession. It was theposition of S.S.P. Ariyasena that the note book he used duringinterrogation did not contain material relating to the confession, butcontained other matters connected with the investigation of theaccused-appellant's involvement. If that was the position, we are ofthe view that the production of the note book and making it available■to the defence, which disclosed that it contained only the materialreferred to by S.S.P. Ariyasena, would have enhanced his credibilityspecially in regard to the recording of the confession.
Another point raised in this appeal by the learned President’sCounsel was the failure of the prosecution to call the typist whorecorded the confession. His contention was that this failure affectedthe prosecution, whose burden was to prove the making of theconfession by the accused-appellant beyond reasonable doubt. Weobserve that the typist S. A. Peiris who typed the confession of theaccused-appellant was a witness for the prosecution and his nameappears in the indictment. Under normal circumstances this witnesswould have certainly provided corroborative evidence in regard tothe material that was placed before the Court through S.S.PAriyasena. For some unexplained reason, his evidence was not led
by the prosecution at the trial. The evidence of this witness wouldhave been very material in view of the various allegations made bythe defence in regard to the confession that was permitted to be ledin the case. Briefly some of the allegations made by the defence inthis case in regard to the confession are the following:
That the alleged confession that was produced in the casewas not made by the accused-appellant and that he wasonly made to sign a typed document.
The accuf§,d-appellant did not have sufficient knowledge ofEnglish tu4jfake such a confession.
Hi. The accused-appellant was sick and had been subjected toassaults, and. further that he had not been properly fed.
iv. That on each day after recording the confession it was notread over to the accused-appellant and that it was notsigned by him.
It is true that the prosecution placed some evidence to counterthese allegations through the evidence of S.S.P. Ariyasena andDr. Salgado, but we are of the view that the evidence of the typistwho recorded the confession was all important and if he gaveevidence, and if he corroborated some of the matters spoken to byS.S.P. Ariayasena, it would have enhanced the credibility of this,prosecution witness.
Further we observe that the evidence of the typist was verymaterial for yet a another reason. The declaration made by the typist
S.A, Peiris at the end of the alleged confession reads as follows:
“i, S. A. Peiris declare that i have typed the above statement ofV. W. Mariadas correctly as dictated by G. P. S. Ariyasena frompages 1 to 27”. According to the plain meaning of this declaration itappears that the statement that has been recorded by the typist hasbeen what was dictated to him by S.S.P. Ariyasena and not what wasspoken to by the accused-appellant. This declaration in the absenceof an explanation or clarification from S. A. Peiris goes contrary to
evidence given by S.S.P. Ariyasena and tends to support insomeway, the stand taken by the accused-appellant that he nevermade this confession.
The learned Deputy Solicitor-General sought to give a meaning tothis declaration, stating that what the typist in fact recorded was whatwas uttered to him by the accused-appellant himself. We are unableto accept this submission in the absence such evidence from thetypist himself. We are of the view that the evidence of the typist wasso vital to the prosecution case, and that the failure of the prosecutionto call him to give evidence has affected the prosecution case.Therefore there is substance in the argument of the learnedPresident’s Counsel in regard to the failure of the prosecution to callthe typist to give evidence in the case.
Another submission was made by the learned Presidents Counsel,that the allegations made against the police officers, such as A.S.P. deAlwis, S.l. Nilabdeen and Wimalaratne, should have been rebutted bythe prosecution. In other words the learned Counsel was adverselycommenting on the failure of the prosecution to call as witnesses someof the officers against whom allegations of assault on the accused-appellant, a few days prior to the recording of the confession, wasmade. The learned Deputy Solicitor-General argued that theprosecution has placed before the Court the evidence of Dr. Salgadoand his two medical reports, indicating that the accused-appellant hadno external injuries, when he was examined by the doctor on 10.08.89and on 14.08.89. Further it was his submission that the doctor hasstated that the accused-appellant did not complain of any assault orthreats and that he was mentally fit to make a statement.
It is to be noted that Section 16(1) of the Prevention of Terrorism(Temporary Provisions) Act has permitted the admissibility of astatement made to a police officer above the rank of an AssistantSuperintendent of Police unless such a statement is irrelevant underSection 24 of the Evidence Ordinance, Section 16(2) of the said Actstates that the burden of proving that such a statement is irrelevantunder Section 24 of the Evidence Ordinance shall be on the personasserting it to be irrelevant. Section 24 of the Evidence Ordinancereads as follows:
A confession made by an accused person is irrelevant in acriminal proceeding if the making of the confession appears to thecourt to have been caused by any inducement, threat, or promisehaving reference to the charge against the accused person,proceeding from a person in authority, or proceeding from anotherperson in the presence of a person in authority and with his sanction,and which inducement, threat, or promise is sufficient in the opinionof the court to give the accused person grounds, which wouldappear to him reasonable, for supposing that by making it he wouldgain any advantage or avoid any evil of a temporal nature inreference to the proceedings against him.
In the inquiry regarding the voluntariness of the confession theaccused-appellant gave evidence stating that he was seriously ill as hewas a diabetic patient and that he was even admitted to the Armyhospital for treatment. This fact was admitted by the prosecution, buttheir position was that at the time of making the confession, theaccused-appellant’s diabetic condition had been brought undercontrol. Further it was the evidence of the accused-appellant that afterhis arrest, when A.S.P. de Alwis was questioning him in the presence ofS.l. Nilabdeen, and Wimalaratne and when he stated that he knewnothing about the incident, he was assaulted by A.S.P. de Alwis. Healso stated that S.l. Nilabdeen and Wimalaratne assaulted him withhands and legs and later he was asaulted with clubs, and these blowsalighted all over his body. The prosecution sought to rebut thisevidence by calling for Dr. Salgado who stated that when he examinedthe accused-appellant on 10.08.89 and 14.08.89, he had no externalinjuries. The question that arises here is whether Dr. Salgado’sevidence was sufficient to rebut the burden placed on the prosecution,in view of the accused-appellant’s evidence. Whether these assaultsby the police if true, caused any inducement, threat, or promise on theaccused-appellant, who was a sick person, to make the allegedconfession was certainly a heavy burden placed on the prosecution torebut. These allegations have an added significance as S.l. Nilabdeenwas present throughout the recording of the confession. He was theofficer who produced the accused-appellant for recording theconfession and he was also the officer to whom the accused-appellantwas handed over each day after recording the statement, except for asingle occasion on 13.08.89 when accused-appellant was brought
from the Slave Island Police Station by S.l. Wimaladasa. Has theprosecution discharged this burden by merely leading the evidence ofDr. Salgado? The learned Deputy Solicitor-General submitted thatthese allegations of assault were false as according to Dr. Salgado, theaccused-appellant had not external injuries and further that he had notcomplained of any assault to the doctor. It is to be noted that theaccused-appellant's evidence on this matter was that he complained tothe doctor only about his diabetic condition and not of any assault bypolice, as he was told not to do so by the police. One cannot disregardthis evidence of the accused-appellant, who was in police custody,and who says he did not complain of any assault by the police due tofear, to the doctor. Therefore we are of the view that it was verynecessary for the prosecution to have placed the evidence of at leastsome of the officers against whom these allegations of assault weremade, so as to rebut the position taken by the accused-appellant. Thishas not been done by the prosecution.
In the case of Vivekanandan v Selvaratnam 0>, Malcolm Perera, J. indealing with Section 24 of the Evidence Ordinance said “At the outset,the Court must determine the meaning of the word ‘appears’. I thinkwhat the Court has to decide is not whether it has been proved thatthere was threat, inducement or promise, but whether it appears toCourt that such threat, inducement or promise was present. I aminclined to the view that the word ‘appears’ indicates a lesser degree ofprobability than it would have been, if the word ‘proof’ as defined inSection 3 of the Evidence Ordinance had appeared in Section 24.”
“I should rather think that the legislature has decidedly used theword ‘appears’ to guarantee to accused persons in criminalproceedings, absolute fairness. Thus Section 24 does not requirepositive proof of improper inducement, threat or promise to justify therejection of a confession. If the Court after proper examination and acareful analysis of the evidence and the circumstances of the givencase, comes to the view that there appears to have been a threat,inducement or promise offered, though this is not strictly proved, thenthe Court must refuse to receive in evidence the confession. I shouldventure to think that a strong possibility that the confession was madeunder the stimulus of an iducement, threat, or promise, would besufficient to attract exclusionary provision of Section 24 of the
Evidence Ordinance." Therefore it is clear that the accused-personhas very much a lighter burden to discharge, to bring himself underSection 24 of the Evidence Ordinance.
A submission was also made by the learned President’s Counselthat before recording the confession under Section 16 of thePrevention of Terrorism (Temporary Provisions) Act, the accusedappellant should have been told of his right to legal advice, and ofhis right to make a statement to the Magistrate instead of making astatement under Section 16 of the Prevention of Terrorism (TemporaryProvisions) Act. Further the learned President’s Counsel complainedthat the accused-appellant during the period when his confessionwas recorded, he was kept in the custody of Police Officers whointerrogated him Section 16 of the Prevention of Terrorism(Temporary Provisions) Act reads as follows:
Notwithstanding the provisions of any other law, where anyperson is charged with any offence under this Act, any statementmade by such person at any time, whether –
it amounts to a confession or not;
made orally or reduced to writing;
such person was or was not in custody or presence of apolice officer;
made in the course of an investigation or not;
it was or was not wholly or partly in answer to any question,
may be proved as against such person if such statement is notirrelevant under Section 24 of the Evidence Ordinance;
Provided, however, that no such statement shall be proved asagainst such person if such statement was made to a police officerbelow the rank of an Assistatnt Superintendent.
The burden of proving that any statement referred to insubsection (1) is irrelevant under Section 24 of the EvidenceOrdinance shall be on the person asserting it to be irrelevant.
Any statement admissible under subsection (1) may be provedas against any other person charged jointly with the person makingthe statement, if, and only if, such statement is corroborated inmaterial particulars by evidence than the statements referred to insubsection (1).
An examination of this section reveals that it has been drafted inSuch wide terms so as to include any statement whether it amounts toa confession or not, made orally or reduced to writing if made to apolice officer not below the rank of an Assistant Superintendent ofPolice, and if it is not irrelevant under Section 24 of the EvidenceOrdinance. Further it is provided that the burden of proving that thestatement is irrelevant under Section 24 of the Evidence OrdinanceShall be on the person asserting it to be irrelevant. It must be pointedout that this provision is an exception to Section 25 of EvidenceOrdinance which says that no confession made to a police officershall be proved against a person accused of any offence. Thereforeas pointed out by the learned President's Counsel it was all the morenecessary that there should be some safeguards to be adhered towhen recording such a confession. Unfortunately there are no suchprovisions in the Prevention of Terrorism (Temporary Provisions) Act.As submitted by the learned Deputy Solicitor-General even therecording of a confession under Section 16 of said Act has to be doneby recourse to sections 109 and 110 of the Code of Criminal ProcedureAct, No. 15 of 1979. Therefore when a Court is called upon to give aruling regarding the voluntariness of a confession recorded underSection 16 of the Prevention of Terrorism (Temporary Provisions) Act itis of utmost importance to examine and evaluate the evidence so as toguarantee to the accused person in criminal proceedings absolutefairness.
In our view it is not necessary to make any pronouncement withregard to the submission of the learned President’s Counsel on thisaspect. Since we are of the view that there is a grave doubt as towhether the document P1 which was produced as the confessionmade by the accused-appellant was in fact made by him specially inview of the fact that the officer who is alleged to have typed thestatement has not been called as a witness. On a plain reading of hiscertificate which is appended to P1, a doubt necessarily arises as towhether P1 contains a verbatim record of what was uttered by theaccused-appellant or which was dictated by S.S.P. Ariyasena.
For the reasons Stated, we are of the view that the prosecution hasfailed to prove beyond reasonable doubt that the confession was infact made by the accused-appellant. Thus in our view it is not safe toallow the conviction to stand. Therefore we set aside the convictionand sentence of the accused-appellant and acquit him.
GUNASEKERA, J. – I agree.
Conviction set aside and accused acquitted.