NIKAPOTA v. GUNASEKARA

062-NLR-NLR-V-14-NIKAPOTA-v.-GUNASEKARA.pdf


( 213 )
Present: Middleton J. and Wood Renton J.Julyi?. toil
NIKAPOTA ». GUNASEKERA.
417—P. C. Malara, 1,385.
*
Conviction of accused—Magistrate may inquire into the previous historyand antecedents of accused before awarding punishment.
A previous conviction may be proved or admitted before a courtof first instance, after the conviction of the accused, for the purposeof enabling the Court to regulate the punishment within the limitsof its jurisdiction in that respect under the law.
A previous conviction should not be regarded as proved unlessa properly-certified copy of the conviction is put in, and evidencegiven to dearly identify the accused with the person mentioned in i t.
Evidence of an antecedent bad character is relevant after convic-tion ;■ but no evidence to prove it should be accepted by the Court,except from persons of undeniable position and respectability, andthen also only under the sanction of an oath or affirmation.
T
HE accused in this case was convicted of an offence undersection 315 of the Penal Code with having caused hurt with
a pair of scissors to her daughter. After the accused was foundguilty, it was pointed out to the Magistrate that the accused hadbeen convicted of causing hurt to her elder daughter and had beenlined. The learned Magistrate (D. W. Amott, Esq.) took theprevious conviction into consideration and sentenced her to threemonths’ imprisonment.
The accused appealed.
H. J. C. Pereira (with him Canekeratna), for the appellant.—Theevidence of previous conviction in cases like this should not havebeen taken into consideration by the Magistrate. There is no lawwhich authorizes the admission of such evidence in this case. Thecase does not fall within section 68 of the Penal Code. Evidence ofcharacter is inadmissible, unless the accused puts it in issue ; thereare exceptions to that rule, but this case does not fall within theexceptions (see Criminal Procedure Code, sections 408 and 409).
If evidence of . character is irrelevant before conviction, what lawmakes it relevant after conviction ? Where the Legislature hasdeemed it necessary to lead evidence of a previous conviction, ithas made special provision to enable it to be done (see CriminalProcedure Code, section 253, and Ordinance No. 7 of 1899). TheLegislature has also made provision for dealing with men of goMcharacter (see Criminal Procedure Code, section 325).
( 214 )
July 17,1911
Nihapota v.Quriaeekera
If evidence of character after conviction were to be admitted, itwould open the door to much abuse. Counsel cited Reg. v. Alexan-der ;1 Bastion Appu v. Davithamy; – Seneviratne v. Dias;3 Warusa-vitana v. Abiweera;4 Sinnetamby v. Elayatamby ;5 Encyclopaedia ojthe Laws of England, vol. X., pp. 333 and 334.
Walter Pereira, K.C., S.-G., for the respondent.—Under theEvidence Ordinance (section 100) and the Criminal Procedure Code(section 6) the English law of evidence and procedure are introducedin matters where the Codes are silent. Under the English law theantecedents of the prisoner may be taken into consideration beforepassing sentence. See Halsbury’s Laws of England, vol. IX., p. 427 ;R. v. Weaver.6
Apart from English law, even under our law the question of badcharacter is in issue when it comes to the question of sentence ;section 325 of the Criminal Procedure Code implies that. Howis the Court to know of the antecedents of the accused unless itinquires into it ?
The evidence of character may have to be on oath or affirmation.
H. J. C. Pereira, in reply.—Section 6 of the Criminal ProcedureCode provides for a casus omissus. This is riot a casus omissus.The Code fully provides for all cases in which it deems it necessaryto lead evidence of bad character.
Cur. adv. vult.
July 17, 1911. Middleton J.—
The point reserved for two Judges in this case was whether aPolice Magistrate, after his verdict on the evidence has been given,in entitled, except in cases provided for by section 68 of the CeylonPenal Code, to take into consideration in awarding punishmentthe proved or admitted fact that the person he has just found guiltyhas been previously convicted, or is a person of bad character.
The argument for the appellant is that to do so would be toinvent a procedure riot warranted by the Code of Criminiai Procedure,and to make evidence relevant which only becomes so in certainspecified instances as laid down in section 68 of the Penal Code andOrdinance No. 7 of 1899, and thus to treat as a casus omissus whatin fact is not so, and to engraft on our criminal system a form ofprocedure which the Legislature has not expressly adopted, becauseit is unsuitable to the country. The cases reported in 3 N. L. R. 11,3 Weerakoon 89, 1 Leembruggen 34, and Koch 11 were referred toand relied on.
If this appellant was properly convicted under section 315 ofthe Penal Code, by section 7 of Ordinance No. 7 of 1899 proof of aprevious conviction might clearly have been given to the Magistratefor thepurpose of obtaining an order for police supervision against her.
13N. L. R. m.* (1910) 4 ,Weer. 89; Koch 17.
* (1905) 1 Leem. 34.* (1908) 3 A. C. R. Sup. X.
9 (1900) 3 Wear. 89.• (1908) 1 Cr. App. Rep. 12.
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It is clear that a Police Court having jurisdiction to summarilytry certain of the offences under chapters XII. and XVII. of thePenal Code would have power under section 68, after convictionunder these chapters, to enhance the punishment within the limitsof its power under section 15 of the Criminal Procedure Code.1
In a case of theft heard by a Magistrate, a previous conviction fortheft with a view to applying section 68 of the Penal Code shouldbe dealt with on the lines laid down in section 253 of the CriminalProcedure Code so far as applicable to a Police Court, and theprevious conviction might be proved or admitted.
It is clear that the provisions of section 325 make it necessary toascertain after conviction in every case triable by a Magistrate if aperson has been previously convicted or not, in order that theMagistrate may, if he thinks it expedient, release upon probation ofgood conduct instead of sentencing to imprisonment. This sectionshows also that the antecedents of an offender may be gone intoafter conviction, and may be acted on for his benefit, and by parityof reasoning it seems to me to his detriment.
Under the English law, the Court in fixing the punishment for anyparticular crime will take into consideration the nature of theoffence, the circumstances in which it was committed, the degreeof deliberation shown by the offender, the provocation he hasreceived if the crime is one of violence, the antecedents of theprisoner up to the time of sentence, his age and character, and,except in the case of habitual criminals, any recommendation tomercy which the jury may have made (vide Encyclopaedia of theLaws of England, Halsbury, vol. IX., p. 427).
In the case of R. v. Weaver2 it was held that it was the practiceof criminal courts before passing sentence to inquire into the ante-cedents of a prisoner, and to punishhabitual offenders more seriously.
In R. v. Nuttall3 it was held it was not right to be guided merelyby previous convictions, and if the offence for which punishment isto be awarded does not indicate -a deliberate return to crime, andthere are circumstances which do not show that the offence wasplanned beforehand, less weight is to be given to previous offences.
In R. v. Boncheri the Court said “ more weight should be givento previous convictions for offences of the same character as that forwhich the offender is to be punished than to convictions for offencesof a different character.”
In R. v. Spencer* the Court said “ a first offender may commit anoffence of such malignity that a severe sentence should be imposed,and the absence of previous convictions may be disregarded, as onlyshowing that the offender has not been found out before.”
• 1 Rex v. Dias Sinno {190$) 1 Weer. 61.* {1908) 1 Cr. App. Rep. 189.
* (1908) Cr. App. Rep. 12.4 {1909) Cr. App. Rep. 177.
5 {1908) Cr, App. Rep* 81.
July 17,1911
MlDDLETOtf
J.
Nikapola v.Onnattckcra
( 216 )
Jidyl7,1911
Middleton
J.
Nikapota v.Qunasekera
I have cited these opinions of the Supreme Court of CriminalAppeal in England with the object of bringing home to theMagistrates 'Of Ceylon the principles upon which that Court thinksa court of trial should act in dealing with such matters.
Besides section 325, it seems to me, as the Solicitor-General con-tended, that section 6 of the Criminal Procedure Code will warrantthe application of the procedure in force in England in the matter ofprevious convictions. It is not distinctly enacted that a previousconviction in all cases may be proved after conviction by a PoliceCourt, but it is inferable, and the law relating to criminal procedurein England prevents it. In no case should a previous conviction beproved or made known to the Magistrate before conviction, unlessit is relevant (see section 54 of the Evidence Ordinance andsections 408 and 409 of the Criminal Procedure Code).
I hold, therefore, that a previous conviction may be proved oradmitted before a Police Court in Ceylon, after the conviction of theaccused, for the purpose of enabling the Court to regulate thepunishment within the limits of its jurisdiction in that respectunder the law..
A previous conviction should not be regarded as proved unless aproperly certified copy of the conviction is put in, and evidence givento clearly identify the accused with the person mentioned in it.(Section 10, Ordinance No. 7 of 1899.)
As regards an antecedent bad character, I think it is made relevantafter conviction by section 325 ; but in my opinion no evidence toprove it should be accepted by the Police Court, except from personsof undeniable position and respectability, and then also only underthe sanction of an oath or affirmation.
As regards the conviction under section 315, the Magistratedistinctly finds that the little girl was pricked with scissors, aninstrument clearly used for cutting, and which could be used forstabbing, and the formal conviction is under section 315, so that Imay have been wrong in supposing his intention was to convictunder section 314..
In any case I am not prepared to say that the sentence he haspassed, considering the previous conviction for a similar offence, istoo severe. I affirm the conviction and dismiss he appeal.
Wood Renton J.—
This appeal, which has been referred to a Bench of two Judges bymy brother Middleton, raises the important and interesting questionwhether a Police Magistrate is entitled, after conviction of anaccused person tried before him, to receive proof of a previousconviction for an offence not coming within the categories indicatedin section 68 of the Penal Code, in considering what sentence oughtto be passed on the person so convicted. The appellant was charged
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with, and convicted of an assault upon her daughter, a little girl.The learned Police Magistrate, on information received by him fromthe Police, charged her with, and she admitted a previous convictionfor, a similar offence against her elder daughter, and he thereuponsentenced her to three months’ rigorous imprisonment. Thatsentence was one within his ordinary jurisdiction in regard to offencesof this kind ; but the Police Magistrate took account of the previousconviction in fixing the amount of it. If regard may properly behad to that conviction, the sentence is by no means excessive.Indeed, if the Police Magistrate had made it one of six months’instead of three months’ rigorous imprisonment, I should notmyself, in view of the evidence, have been disposed to interfere.The appellant contends, however, that a Police Magistrate, or forthat matter any other Judge of first instance, has no right to takeaccount of previous convictions at all, except under the circum-stances indicated in section 68 of the Penal Code. That section hasno application to a case like the present, for in the first place itadmits previous convictions only for offences relating to the coinageand Government stamps and offences against property, and in thenext place it provides, not for the infliction of increased punishmentwithin the ordinary limits of the jurisdiction of the Court inflictingthat punishment as regards the particular offence charged, butfor enhanced punishment beyond those limits. There have beenvarious decisions of single Judges in favour of the appellant’s presentcontention. In Reg. v. Alexander1 it was held by Lawrie J. that itis irrelevant to charge or prove previous convictions in a trial foran offence not belonging to one or other of the two classes expresslyindicated by .section 68 of the Penal Code, except for the purpose ofplacing an offender, by virtue of the provisions of Ordinance No. 17of 1894, now superseded by Ordinance No. 7 of 1899, under policesupervision. That case is directly in point, for the sentence againstwhich the appeal was brought, although increased owing to theprevious convictions, was within the ordinary jurisdiction of thecourt of trial as regards the offence charged. Reg. v. Alexander1was followed by Pereira J. in Bastion Appu v. Davithamy,- bymyself in Seneviratne v. Dias* and by Grenier J. in Warusavitana y.Abiweera,* and an authority to the same effect will be found in adecision of Withers J. in 236—P. C. Colombo, No. 8,137.5 In thecase of Sinnetamby v. Elayatamby,6 Sir Joseph Hutchinson C. J. tooka contrary view, and held that there is nothing in section 68 of thePenal Code to prevent the court of first instance, after the convictionof an accused person, from taking account of any evidence whichmay assist it in arriving at a correct decision as to what the properpunishment should be. I have myself had to reconsider the earlier
July 17,1911
WoodR K.VSOJf. J.
Nikapota v.(Jwuuekcra
' {1898) 3 N. L. R: 165.8 {1905) 1 Leem. 34.
* {1906) 3 Weer. 89.
* {1910) 3 Weer. 89.
6 {1899) Koch 17.
8 {1908) 3 A. C. R. Sup. X.

( 118 )
July 17,1911
WoodRenton J.
Nikapota v.Qunasekera
decisions since Sinnetamby v. Elayatamby l# although not in anyreported cases, and have had some doubt as to whether they wereright.
The question is by no means free from difficulty, and I am fullyalive to the risk, on which Mr. H. J. C. Pereira insisted in hisargument on the appeal, of the occurrence of irregularities, notalways of a trivial character, in inquiries of this kind. It wouldcertainly be most hazardous in this country if the Courts were toreceive and act upon evidence of the bad character of accusedpersons supplied off-hand by a court sergeant or some subordinatepolice officer. On the other hand, to exclude the courts of firstinstance from inquiring into the character of the accused personsafter conviction can have no other result than to make it verydifficult for them to punish intelligently. As was pointed out by theLord Chief Justice of England in Weaver's caseit has been inEngland, in considering sentences, the invariable practice to inquireinto the prisoner’s history in his own interest, and if in the courseof that inquiry facts come out which damage him, the Judge oughtto take notice of them. On the whole, I am hot satisfied that thereis anything in section 68 of the Penal Code, or in any other localenactment, to prevent the courts of trial in Ceylon from institutingsimilar inquiries, and from acting in the same way on their results.
There is no express enactment on the subject, and consequently,alike under section 100 of the Evidence Ordinance and section 6 ofthe Criminal Procedure Code, we are entitled to have regard to thelaw of England. It may be added that section 325 of the CriminalProcedure Code, which gives the Court power to release firstoffenders on probation of good conduct instead of sentencing themto imprisonment, itself recognizes an inquiry into the character andantecedents of the accused as permissible. I need scarcely addthat any investigation conducted by a court of trial after convic-tion into the character and antecedents of an accused should be aninvestigation according to the rules of evidence. On the groundsthat I have stated I would, dismiss this appeal.
Appeal dismissed'.
(1908) 2 *4. C. X.,Sup. X.
* (1908) 1 Cr. App. Rep. 12.